In Letter Ruling (TAM) 9910046, the IRS reduced some of the uncertainty surrounding the tax treatment of trust-preferred securities, which are generally treated as equity for financial and regulatory reporting purposes and as debt for tax purposes. In general, the TAM provides a useful analysis for supporting the debt treatment of trust-preferred securities. Since the release of this letter ruling, many banks have decided to raise capital using trust-preferred stock.
Trust-Preferred Stock Structure
Typically, a bank or bank holding company forms a business trust that owns all the trust's common equity and at least 3% of the trust's total equity. The trust then issues the preferred securities to third-party investors. Simultaneously, the bank or holding company issues subordinated debt to the trust in exchange for the proceeds of the preferred issue.
The cash, now in the hands of the financial institution, can be used in a number of ways, including funding internal growth, cash acquisitions, investments or capital restructuring. For regulatory purposes, trust-preferred stock can count for up to 25% tier 1 capital. Interest payments made to the trust are tax deductible.
Letter Ruling 9910046 was issued shortly after the IRS settled a case with Enron Corp. involving securities similar to trust-preferred securities (referred to as monthly income preferred securities (MIPS)).
Enron Corp. treated these securities as debt for tax purposes and equity for financial reporting purposes. The Service argued that, in determining whether the securities were debt or equity, it was important how the securities were treated for nonbook purposes.
The IRS also questioned whether the relationship of the parties to the arrangement exercised equity-like control, exerting undue influence on a lender that the parent controlled. The Service eventually settled with Enron and allowed the loans issued in connection with the preferred securities to be treated as debt.
In the letter ruling, the IRS applied the factors in Notice 94-47, as well as...