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Международная лизинговая энциклопедия.

The International Leasing Encyclopedia by Steven Gilyeart.

Энциклопедии не было в интернет последние полтора года, но это не означает, что ее нет вообще. я взял на себя смелость разместить на этом сайте всю подборку статей (собственно энциклопедию), с указанием адресов электронных почт авторов материалов и редактора. Материал на английском языке.

Characterization of Lease Transactions for United States Federal Income Tax Purposes The issue of whether a transaction which purports to be a lease will actually be recognized by one so as to allow the lessor to receive the tax benefits of ownership, principally the depreciation allowances associated with the equipment, is governed by a series of Internal Revenue Service ("IRS") pronouncements, case law and federal statutory law. Because the issue will come up in the first instance upon a tax audit by the IRS, the IRS opinion on leasing needs to be examined first.

Revenue Ruling 55-540. The first major standard for evaluating lease transactions was issued by the IRS in 1955 in Revenue Ruling 55-540 (Rev.Rul.55-540, 1955-2 C-B. 39). Rev. Rul. 55-540 set forth as its purpose "to state the position of the Internal Revenue Service regarding the income tax aspects of the purported leasing of equipment for use in the trade or business of the lessee." Significantly, the Rev. Rul. did not set forth the characteristics of what would be recognized as a lease but rather set forth the characteristics that would cause a transaction to be viewed as a conditional sale. The general test of whether or not a transaction creates a lease for United States federal income tax purposes remains, as in almost all contractual matters, "the intent of the parties.:" Whether an agreement, which in form is a lease, is in substance a conditional sales contract depends upon the intent of the parties as evidenced by the provisions of the agreement, read in light of the facts and circumstances existing at the time the agreement is executed. In ascertaining such intent, no single test or any special combination of tests is absolutely determinative. No general rule, applicable to all cases, can be laid down. Each case must be decided in the light of its particular facts. In Rev. Rul. 55-540, the IRS indicated that if any one or more of the following existed, it would treat the transaction for tax purposes as a purchase and sale rather than as a lease: (a) portions of the periodic payments are made specifically applicable to an equity to by required by the lessee; (b) the lessee will acquire title upon the payment of a stated amount of "rentals" which under the contract he is required to make; (c) the total amount which the lessee is required to pay for a relatively short period of use constitutes an inordinately large portion of the total sum required to be paid to secure the transfer of the title: (d) the agreed "rental" payments materially exceed the current fair rental value, as this may be indicative that the payments include an element other than compensation for the use of the property; (e) the property may be acquired under a purchase option at a price which is nominal in relation to the value of the property at the time when the option may be exercised, as determined at the time of the entering into the original agreement, or which is a relatively small amount when compared with the total payments which are required to be made; or (f) some portion of the periodic payment is specifically designated as interest or is otherwise readily recognizable as the equivalent of interest. The fact that the agreement makes no provision for the transfer of title or specifically precludes the transfer of title does not, of itself, prevent the contract from being held to be a sale of an equitable interest in the property. Also, recording of financing statements will not be considered controlling as to the character of the transaction for federal tax purposes. Rev. Rul. 55-540 was not accommodating of full payout leases: In the absence of compelling factors indicating a different intent, it will be presumed that a conditional sales contract was intended if the total of the rental payments and any option price payable in addition thereto approximates the price at which the equipment could have been acquired by purchase at the time of entering into the agreement plus interest and/or carrying charges. The IRS also took the supplementary position that: If the sum of the specified "rentals" over a relatively short part of the expected useful life of the equipment approximates the price at which the equipment could have been acquired by purchase at the time of entering into the agreement plus interest and/or carrying charges on such amount, and the lessee may continue to use the equipment for an additional period or periods approximating its remaining useful life for relatively nominal or token payments, it may be assumed the the parties have entered into a sale contract, even though passage of title is not specifically provided for in the agreement. Although Rev. Rul. 55-540 did not set forth the requirements for a true lease transaction, it was the principal guide for structuring transactions with a view toward federal income tax considerations until the promulgation of Revenue Procedure 75-21 twenty years later, and to this date it still establishes the most fundamental criteria for the evaluation. Issued in 1975, Revenue Procedure 75-21 (Rev. Proc. 75-21, 1975-1 C.B. 715) sets forth the guidelines that the IRS used for advance ruling purposes in determining whether certain leveraged lease transactions purporting to be leases would be considered to be leases for federal income tax purposes. While the IRS no longer issues advance rulings of this kind, these "guidelines" have remained viable as the litmus test for an initial determination of whether or not a transaction will be considered a lease for federal income tax purposes. While they do not constitute "rules" and can be deviated from and still have lease treatment sustained, compliance with these guidelines does provide a "safe-harbor" or some confidence that the transaction will be considered a lease by the IRS. They are not actually intended for audit purposes and do not define what will be considered a lease for tax purposes as a matter of law, which still must be determined by "all the facts and circumstances" of the particular transaction. A taxpayer seeking an advance ruling that a leverage lease transaction would be treated as a true lease transaction had to meet all of the following conditions:

(a) Minimum Unconditional At-Risk Investment. The lessor must have a minimum unconditional "are risk" investment which is maintained throughout the entire lease term and at its end. What Counts. The minimum "at risk" investment must be an equity investment, which, for purposes of the Revenue Procedure includes only (1) consideration paid (2) personal liability incurred by the lessor to purchase the property, with the lessor having sufficient net worth to satisfy such personal liability. Unconditional. The investment must be unconditional; i.e., the lessor must not be entitled to a return of any portion of the minimum investment through any arrangement, directly or indirectly, with: (1) the lessee; (2) a shareholder of the lessee; or (3) any party related to the lessee (within the meaning of IRC 318). How Much. The minimum "at risk" investment must be equal to at least 20% of the cost of the property at all times during the lease term. The lessor must also represent and demonstrate that an amount equal to at least 20% of the cost of the property is a reasonable estimate of what the fair market value of the property will be at the end of the lease term. For this test (1) inflation or deflation is ignored, and (2) the cost to the lessor for removal and delivery of possession of the property at the end of the lease term must be subtracted from the estimated residual value. How Long. The remaining useful life of the property must be represented and demonstrated to be the longer of one (1) year or 20% of the originally estimated useful life of the property.

(b) What Constitutes the Lease Term. The lease term includes all renewals or extension periods that are not at fair market value.

(c) Restriction on Purchase Options. No member of the "lessee group" can have a purchase option at less than fair market value as of the time the option is exercised.

(d) Restriction on Lessor Puts. At the time when the property is first placed in service or used by the lessee, the lessor cannot have a put to any party and must represent that it has no intention to acquire one. If it does acquire one subsequently, it will be subject to a review based on all the facts and circumstances. Any provision which allows the lessor to abandon the property will be treated as a put.

(e) Contributions to Equipment Cost, Improvements, Maintenance and Repair. No part of the cost of the property may be furnished by any member of the lessee group. No improvements or additions to the property can be furnished by any member of the lessee group unless: (1) a member of the lessee group owns them, (2) they are readily removable without causing material damage to the property, and any purchase option for improvements or additions given to the lessor is at fair market value. If the cost of the property exceeds the estimate on which the lease was based, rental adjustments can be made to compensate for the additional cost. If the lessee has the responsibility to maintain and repair the property, such ordinary maintenance and repairs performed by the lessee will not constitute an addition or improvement.

(f) No Lessee Loans or Guarantees. No member of the lessee group can lend to the lessor any of the funds necessary to acquire the property or guarantee any of the indebtedness created in connection with lessor's acquisition of the equipment.

(g) Profit Requirement. The lessor must have a profit motive. The lessor must represent and demonstrate that it expects to receive a profit from the transaction, apart from the value of or benefits obtained from the tax deductions, allowances, credits and other tax attributes arising from such transaction. This requirement is met if the following two tests are met: 1. The Profit Test. The aggregate amount required to be paid by the lessee to or for the lessor over the term of the lease plus the residual investment [payments + residual] exceed an amount equal to the sum of the aggregate disbursements required to be paid by or for the lessor in connection with the ownership of the property and lessor's equity investment in the property, including any direct costs to finance the equity investment [i.e., (payments + residual ) > (purchase cost + operating expenses)] ; and 2. The Cash Flow Test. The aggregate amount required to be paid to or for the lessor over the lease term exceeds by a reasonable amount the aggregate disbursement required to be paid by it or for the lessor in connection with the ownership of the property [i.e., payments > operating expenses]. The profit test does not require a "reasonable profit"; any profit, even a nominal one will do. Also, although the guidelines do not address how finance costs of the equity invested are to be accounted for, the IRS has suggested that only interest on loans associated with the equipment's acquisition and not interest on general working capital loans are to be considered as a cost for the purposes of this test. See Letter Ruling No. 8232001, Supplemented by No. 8332005. The cash flow test's "exceeds by reasonable amount" has been interpreted by the IRS as including a 2% average annual return on the equity investment. See Letter Ruling No. 8332005. Although the IRS Auditor's Manual suggests that the auditors are to use a present value test for assessing profit motives, a transaction which meets the profit test and cash flow test of the guidelines is not subject to the Manual's present value test. See Letter Ruling Nos. 8332005 and 8232001 Uneven Rent. Rev. Proc. 75-21 had an uneven rent test that have been superceded by the uneven rent provision of Internal Revenue Code 467.

Rev. Proc. 76-30. In 1976 the IRS issued a Revenue Procedure indicating that it would not consider leases involving limited use property to be true leases for federal income tax purposes. It stated its reasoning as follows: [The guidelines of Rev. Proc. 75-21 require] the lessor to represent and demonstrate certain facts relating to the estimated fair market value and estimated remaining useful life of the property at the end of the lease term. This requirement is intended, in part, to assure that the purported lessor has not transferred the use of the property to the purported lessee for substantially its entire useful life. In the case of limited use property, at the end of the lease term there will probably be no potential lessees or buyers other than members of the lessee group As a result, the lessor of limited use property will probably sell or rent the property to a member of the lessee group, thus enabling the lessee group to enjoy the benefits of the use or ownership of the property for substantially its entire useful life and [thus] the conclusion [is] that such a transaction transfers equitable ownership.

Economic Substance. Leasing transactions must have economic substance and not be purely tax-motivated. Otherwise, the transaction will be viewed as a "sham" for tax purposes. The leading case in this area is Rice's Toyota World, Inc. v. Commissioner, 752 F.2d 89 (4th Cir. 1985), affirming in part, reversing in part, 81 T.C. 184 (1983). The Court in Rice's Toyota set forth a two -pronged test for identifying a "sham" transaction: (1) the only business purpose for the transaction is the obtaining of tax benefits ; and (2) there is no reasonable possibility of profit and therefore no economic substance. The actual determination depends on the facts of the particular case. Factors which the court may consider in determining the taxpayer's motivation (the first prong of the test) include: (1) whether or not the taxpayer made a serious evaluation of the property's estimated residual value; (2) whether or not the lessor has any knowledge about the particular property leased; (3) whether or not the taxpayer paid an inflated price for the property; or (4) whether or not non-recourse financing was involved, in which case it would be easier for the taxpayer to walk away from the transaction without liability. The results of finding a sham transaction for tax purposes include: (1) a disallowance of depreciation deductions, and (2) a possible disallowance of interest deductions for non-recourse financing; however, interest deductions on financing that is truly resources may be allowed. These issues were again addressed in Estate of Jerry Thomas v. Commissioner, 84 T.C. No. 32. Although the court there found economic substance and no sham transaction, the case indicates additional relevant factors: (1) the lessors (a partnership was involved) had a reasonable expectation of profit; (2) the lessors could not walk away from the property at the end of the lease without incurring a significant loss; (3) the full-payout characteristic of the transaction was noted as being immaterial; and (4) the court noted that a remarketing agreement entered into at the inception of the lease could reduce the lessor's ownership interest to the extent of the remarketing agent's interest in the proceeds.

Aritcle by Steven Gilyeart. Updated 6 March 1998

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