Reuven S. Avi-Yonah is the Irwin I. Cohn Professor of Law at the University of Michigan Law School. He thanks Steven A. Bank, Jeremy Bearer-Friend, Yariv Brauner, Fred Brown, David Elkins, Calvin Johnson, James R. Repetti, Dan Smith, and Linda Swartz for their helpful comments.
In this installment of Reflections With Reuven Avi-Yonah, Avi-Yonah examines the history of tax-free corporate reorganizations.
On March 21 Sens. Sheldon Whitehouse, D-R.I., and J.D. Vance, R-Ohio, introduced1 the Stop Subsidizing Giant Mergers Act.2 They explained that large mergers have been increasing in recent years and that since 2007, up to 40 percent by value of all mergers have been structured as tax free. They argue that the tax breaks to mergers are a “wasteful subsidy.”3
The senators then proposed the following legislation:
This legislation would end tax-free treatment for acquisitive corporate reorganizations where firms with combined average annual gross receipts exceeding $500 million are party to the transaction, specifically:
Reorganizations as defined in section 368(a)(1)(A), (B), (C), and D (solely for acquisitive transactions) as well as transfers defined in section 351 by unrelated parties shall not include any transaction involving companies with combined annual gross receipts averaging over $500 million during the prior three years.
Exceptions made for mergers involving a small business as defined in section 448(c)(1).
Corporations that are undergoing a purely internal reorganization would still be able to so without incurring a tax obligation.4
Does this proposal make sense? To evaluate this question, it is helpful to examine the history of the tax-free reorganization provisions.5
History
Tax-free reorganizations date back to the Revenue Act of 1918, which I have dubbed “the worst tax law ever enacted” because it included, for example, percentage depletion, an unlimited foreign tax credit, and an unlimited corporate interest deduction.6
Section 202 of the Revenue Act of 1918 provided:
(a) That for the purpose of ascertaining the gain derived or loss sustained from the sale or other disposition of property, real, personal, or mixed, the basis shall be —
(1) In the case of property acquired before March 1, 1913, the fair market price or value of such property as of that date; and
(2) In the case of property acquired on or after that date, the cost thereof; or the inventory value, if the inventory is made in accordance with section 203.
(b) When property is exchanged for other property, the property received in exchange shall for the purpose of determining gain or loss be treated as the equivalent of cash to the amount of its fair market value, if any; but when in connection with the reorganization, merger, or consolidation of a corporation a person receives in place of stock or securities owned by him new stock or securities of no greater aggregate par or face value, no gain or loss shall be deemed to occur from the exchange, and the new stock or securities received shall be treated as taking the place of the stock, securities, or property exchanged.
When in the case of any such reorganization, merger or consolidation the aggregate par or face value of the new stock or securities received is in excess of the aggregate par or face value of the stock or securities exchanged, a like amount in par or face value of the new stock or securities received shall be treated as taking the place of the stock or securities exchanged, and the amount of the excess in par or face value shall be treated as a gain to the extent that the fair market value of the new stock or securities is greater than the cost (or if acquired prior to March 1, 1913, the fair market value as of that date) of the stock or securities exchanged.
This was the origin of all subsequent tax-free reorganization provisions.
Problems
There are several obvious problems with this provision.
First, the crucial terms “reorganization, merger or consolidation” are not defined, and it was left for Treasury to define them by regulation. Reg. 45, promulgated in accordance with the Revenue Act of 1918, eventually outlined the types of transactions that were eligible for this nonrecognition treatment to include cases in which:
corporations unite their properties by either (a) the dissolution of corporation B and the sale of its assets to corporation A, or (b) the sale of its property by B to A and the dissolution of B, or (c) the sale of the stock of B to A and the dissolution of B, or (d) the merger of B into A, or (e) the consolidation of the corporations.7
Second, the limitation to par value was already meaningless in 1919 because corporations could issue no-par stock. The key issue was not the par value but the FMV, and that was not addressed.
Third — and most shockingly from a modern perspective — there was no limit on boot, or cash, that could be received in the transaction so that an exchange could qualify for tax-free treatment even if it was mostly a sale for cash. It is not even clear whether the cash portion would be taxable. Language in the Revenue Act that says “when in connection with the reorganization, merger, or consolidation of a corporation a person receives in place of stock or securities owned by him new stock or securities of no greater aggregate par or face value, no gain or loss shall be deemed to occur from the exchange, and the new stock or securities received shall be treated as taking the place of the stock, securities, or property exchanged” can also be read literally to include the cash portion in the words “no gain or loss shall be deemed to occur from the exchange,” especially because in 1919 it was not clear that capital gains were “income.”8
Finally, the entire provision ran counter to the spirit of the original corporate tax of 1909, which was designed to place limits on monopolization.9 Tax-free mergers, especially those in which a large corporation acquires a smaller competitor, run directly counter to this spirit, as many subsequent commentators have pointed out.10
Rationale for the Provision?
Professor Steven A. Bank has argued that it was crafting a compromise between an accrual model of taxation (in which capital gains are taxed when they occur) and a consumption or cash flow model (in which capital gains are only taxed when they are consumed).11 But this theory does not explain the departure from the regulatory goals of the 1909 act. In addition, the debate about realization that culminated in the Supreme Court’s Macomber decision12 and the capital gains cases (1921-1925) both happened after the original enactment of the reorganization provision in 1919.13
Jerome R. Hellerstein was right in pointing out that there was nothing in the original corporate or individual income tax that required such generous treatment of mergers.14 The provisions should be seen, as Hellerstein implied, as reflecting the influence of lobbying by the corporations and their wealthy shareholders, especially because it was not limited to stock consideration. Thomas Adams, the Treasury official most involved in crafting the 1918 act, was quite open to lobbying by industry.15
Hellerstein explicitly linked the allowance for tax-free mergers to antitrust, which was also a major concern in the 1950s. When he wrote the following in 1957, the Supreme Court had just blocked the merger of General Motors and DuPont under the Clayton Act:
Moreover, in formulating reorganization tax policy, we must consider the impact of mergers on increased concentration of industry, the development of oligopoly in industry, and the elimination of small businesses basic to the health of our economy. The extent of oligopolistic tendencies and significant accentuation of economic power in our economy, and the impact of mergers on these developments are open to controversy. But we are here dealing with a provision of the tax law which extends an extraordinary tax advantage, not afforded to exchanges generally, to the type of transaction which is characteristic of mergers into larger companies. While we do not have the data from which to ascertain the importance of this tax advantage in encouraging mergers, there is enough over-all evidence and there are a sufficient number of individual cases in which this tax factor has been disclosed to have been an element, although perhaps not a major factor, in the determination to merge. This would justify the conclusion that the reorganization provisions tend to encourage the merger movement. In view of the risks of oligopoly and increased concentration of business and the importance of preserving the separate existence of smaller businesses, it would appear to be sound governmental policy to eliminate this tax incentive to such mergers and to leave the tax law neutral in this area — neutral in the sense that the usual tax results of sales and exchanges under the Code will attach to such mergers.16 [Internal citation omitted.]
I agree. The original purpose of the corporate tax of 1909 was to limit corporate power as a complement to antitrust enforcement, and I have previously argued that the problem of monopolization is just as bad today and that reviving the progressivity of the corporate tax may be one way of addressing the problem.17 Eliminating the tax subsidy for large corporate mergers is a sensible step in the same direction.18
It has been argued that tax-free reorganization treatment is an attempt to make the tax system neutral so that businesses can make decisions without considering the tax consequences. To the contrary, tax-free reorganization treatment is a distortion that somewhat arbitrarily advantages some types of mergers over others and puts the government thumb on the scale in favor of corporate consolidation.19
Part of the neutrality argument is that mergers structured as an exchange of stock are a change in form, rather than substance, because the existing shareholders still own stock in the new entity. As Robert Willens recently wrote:
There is a sound reason why reorganizations and section 351 transfers have been made tax free since almost the inception of the tax code: A reorganization represents merely a readjustment of continuing interests in property under modified corporate form and therefore is not the type of “closed and completed” transaction with respect to which gains and losses should be tabulated. . . . The rationale for exempting reorganizations and section 351 transfers from the rigors of taxation continues to exist to this day — but these senators have apparently either chosen to ignore it or, worse, have not been adequately apprised of it.20 [Internal citation omitted.]
But a merger between a large publicly traded corporation and a smaller start-up is no mere change of form. The shareholders of the start-up give up nonliquid stock in a corporation they control and receive publicly traded stock in a corporation they do not control, which they are free to sell (thereby alleviating any liquidity concerns about paying the tax). Nor is a merger between two publicly traded corporations a mere change of form because the combined entity is different than the sum of its parts, which is the stated rationale for the merger.21
Who’s Affected?
The mere change of form argument only applies to divisive reorganizations (in which the shareholders own two corporations instead of one, but both the corporations and the shareholders remain the same), recapitalizations, and F reorganizations (like the exchange of stock in GM New Jersey for GM Delaware that underlay the capital gains cases in the Supreme Court).22 These types of transactions as well as bankruptcy-related reorganizations (like the merger of old GM and new GM in 2008) are outside the scope of the Whitehouse-Vance bill. Acquisitive reorganizations and acquisitive section 351 transactions change the nature of the business and should be taxable.
Acquisitions of public companies are not likely to be affected because (1) only 27 percent of the shareholders in U.S. public companies are taxable domestic individuals,23 and (2) arbitrageurs typically buy the stock from those individuals in taxable transactions before the acquisition closes, and therefore have minimal gain. Nor is it likely that acquisitions of subsidiaries will be affected because, in those cases, it usually makes more sense to use section 338(h)(10) to step up the basis in the target’s assets because the tax can be offset by losses elsewhere in the selling consolidated group. Thus, the transactions most likely to be affected are acquisitions of privately held start-ups, and those are precisely the acquisitions that eliminate competition and can lead to “increased concentration of industry, the development of oligopoly in industry, and the elimination of small businesses basic to the health of our economy.”24
FOOTNOTES
1 “Stop Subsidizing Giant Mergers Act: Senators Sheldon Whitehouse and JD Vance Introduce a Bill to Eliminate Tax Breaks for Corporate Consolidation” (one-page summary of the bill, provided by the office of Sen. Whitehouse; on file with the author); see also press release, “White House, Vance Introduce Bipartisan Legislation to Eliminate Tax Breaks for Corporate Consolidation” (Mar. 21, 2024).
2 Stop Subsidizing Giant Mergers Act (S. 4011) (Mar. 21, 2024). See also Richard Rubin, “Big Corporate Mergers Get Fresh Tax Scrutiny in Washington,” The Wall Street Journal, Mar. 21, 2024.
3 Press release, supra note 1.
4 One-page summary, supra note 1.
5 There is an immense literature on tax-free corporate reorganizations. See, e.g., Yariv Brauner, “A Good Old Habit, or Just an Old One? Preferential Tax Treatment for Reorganizations,” 2004 BYU L. Rev. 1 (2004); Fred B. Brown, “Designing Nonrecognition Rules Under the Internal Revenue Code,” 24(2) Fla. Tax Rev. 424 (2021); Calvin Johnson, “Taxing the Publicly Traded Stock in a Corporate Acquisition,” Tax Notes, Sept. 28, 2009, p. 1363; David Shakow, “Wither, ‘C’!” 45(2) Tax L. Rev. 177 (1990).
6 Reuven S. Avi-Yonah, “The Worst Tax Law Ever Enacted?” 47(1) Int’l Tax J. 45 (2021), on which the following is based.
7 Reg. 45, art. 1567. The first two are the antecedents of C reorganizations, the third and last of B reorganizations, and the fourth of A reorganizations. Interestingly D, E, and F reorganizations are not included even though they are the typical “mere change of form” examples.
8 This was established in the capital gains cases. See United States v. Phellis, 257 U.S. 156 (1921); Rockefeller v. United States, 257 U.S. 176 (1921); Cullinan v. Walker, 262 U.S. 134 (1923); Marr v. United States, 268 U.S. 536 (1925). These cases involved the move by a corporation from one state to another, which the Court held taxable, as opposed to a recapitalization or a move within the same state, which it held not taxable. Congress responded by adding E and F reorganizations to the tax-free list.
9 See Avi-Yonah, “Corporations, Society, and the State: A Defense of the Corporate Tax,” 90(5) Va. L. Rev. 1193 (2004).
10 See, e.g., Jerome R. Hellerstein, “Mergers, Taxes, and Realism,” 71(2) Harv. L. Rev. 254 (1957); Milton Sandberg, “The Income Tax Subsidy to ‘Reorganizations,’” 38(1) Colum. L. Rev. 98 (1938). Legislation was introduced in the 1930s to repeal tax-free reorganization treatment, but it was not enacted because it actually lost revenue because boot was, by then, taxed. See Brauner, supra note 5.
11 Steven A. Bank, “Mergers, Taxes, and Historical Realism,” 75(1) Tul. L. Rev. 1 (2000); see also Ajay K. Mehrotra, “Mergers, Taxes, and Historical Materialism,” 83(3) Ind. L. J. 881 (2008).
12 Eisner v. Macomber, 252 U.S. 189 (1920).
13 The arguments advanced by Bank were raised before 1919, but they are not reflected in the legislation as enacted, which focuses only on acquisitive transactions with no boot limitation.
14 Hellerstein, supra note 10, at 279-280.
15 See Michael J. Graetz and Michael M. O’Hear, “The ‘Original Intent’ of U.S. International Taxation,” 46 Duke L.J. 1021 (1997). The Thomas Sewall Adams papers, available in the archives at Yale University, include significant evidence of Adams’s close ties to the gas, cement, and sugar industries, among others. Randolph Paul reported that many companies asked Treasury for clarification of the tax treatment of consolidations under the income tax, and the office of the solicitor of the Bureau of Internal Revenue had conducted a study of the issue in the spring of 1918 before legislation was introduced. See Bank, supra note 11.
16 Hellerstein, supra note 10.
17 See Avi-Yonah, supra note 6; Avi-Yonah, “A New Corporate Tax,” Tax Notes Int’l, July 27, 2020, p. 497; Kimberly A. Clausing, “Capital Taxation and Market Power,” SSRN (last revised May 21, 2024).
18 Some deals may still happen even if they were taxable, although this is less likely when interest rates are high (making borrowing for an acquisition more expensive) and stock values high as well (making stock used in the acquisition more valuable), which is the current state of affairs. Repealing tax-free treatment for large corporate acquisitions will raise some revenue although some may be lost from not taxing boot in reorganizations that do not happen at all because of the tax.
19 In other words, the provision is a tax expenditure that incentivizes certain mergers. See Jeremy Bearer-Friend, “Restoring Democracy Through Tax Policy,” SSRN, at 13-14 (Dec. 12, 2018).
20 Robert Willens, “Whitehouse Wants to End Tax-Free Reorganizations,” Tax Notes Federal, Apr. 1, 2024, p. 147.
21 See Brauner, supra note 5.
22 See Phellis, 257 U.S. 156; Rockefeller, 257 U.S. 176; Cullinan, 262 U.S. 134; Marr, 268 U.S. 536.
23 See Steven M. Rosenthal and Livia Mucciolo, “Who’s Left to Tax? Grappling With a Dwindling Shareholder Tax Base,” Tax Notes Federal, Apr. 1, 2024, p. 91.
24 Hellerstein, supra note 10, at 279.
END FOOTNOTES