IRS likely to increase debt vs equity analysis after “harsh” General Electric ruling
03 February 2012
Joe Dalton
The imposition of harsh penalties against General Electric (GE) provides a stark warning to companies using tax shelters in the US.
The US Court of Appeals for the Second Circuit ruled in TIFD III-E, Inc v United States of America on January 24 that a GE subsidiary’s arrangement with two Dutch banks – called the Castle Harbour partnership – was not legitimate for tax purposes and said the IRS correctly imposed a $62 million penalty on the taxpayer.
Lawrence Hill, a partner of Dewey and LeBoeuf in New York, said though there are few similar structures to the Castle Harbour partnership in place now, the harsh ruling does add a new equation to debt versus equity analysis which is an attack the IRS has increasingly been making.
“This case seems to create a new category – what could be called hybrid debt,” said Hill.
“The penalties asserted by the second circuit court of appeals here appear unduly harsh given this somewhat novel analysis and that the district court struggled with the debt...
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