Are Your Lease Payments Still Deductible? The Confounding IRS Guidance Limiting the 'Entertainment' Use of Business Aircraft
October 03, 2005
In its zeal to eradicate perceived abuses and further clip the wings of executives who, based on press reports, took great pleasure in using the company's airplane for personal purposes, Congress amended section 274(e)(2) of the Internal Revenue Code (the "Code") in the American Jobs Creation Act of 2004 ("AJCA"). Effective on the date of enactment (Oct. 22, 2004), these amendments effectively reversed the decisions of the Tax Court and Eighth Circuit in <i>Sutherland Lumber-Southwest, Inc. v. Commissioner</i>, 114 T.C. 197 (2000), <i>aff'd</i> 255 F.3d 495 (8th Cir. 2001), <i>acq.</i> AOD 2002-02 (Feb. 11, 2002), and prompted the Internal Revenue Service ("IRS" or the "Service") to issue guidance containing a myriad of rule changes and hinting at others, leaving tax practitioners scratching their heads and companies running for cover.
The Taxman Comes: Bracing for the End of Bonus Depreciation
August 31, 2005
With bonus depreciation gone, even equipment leasing companies that do not make any more book profit in 2005 than they did in 2004 may nonetheless find themselves facing sharply higher tax liabilities. In fact, 2005 taxes will be especially painful: First, equipment leasing companies will not have the advantage of applying bonus depreciation to new assets, so they have lost a substantial deduction. Second, depreciation is a zero-sum game. You can speed up or slow down the schedule, but you can never depreciate more than 100% of an asset's cost. So if you depreciate and deduct more than 50% of the value in its first year, there is significantly less value available to depreciate in subsequent years.
The New Battle of Midway: Appeals Court Finds Middle Ground for Lessors to Recover All Post-Petition Lease Obligations
August 31, 2005
The leasing industry is going through wars again. In addition to bankrupt industrial companies and retailers, airlines are either in bankruptcy or teetering on the brink of a Chapter 11 filing. Such precarious times engender a host of issues for lessors, the paramount question of course being "do I get paid?" Key to that is what lessors are entitled to for the "post-petition" phase, the time between the date of the bankruptcy filing and the date the lease is either assumed or rejected by a bankruptcy trustee or a debtor in possession ("DIP"). Fractious court decisions have made it uncertain how and for how much lessors may recover for post-petition contractual lease obligations, but now a new appellate court decision may prove to be the turning point toward victory for the leasing industry.
In the Marketplace
August 31, 2005
Highlights of the latest equipment leasing news from around the country.
Good Faith Lender Has No Fiduciary Duty to Other Creditors Or Its Borrower
August 31, 2005
The Second Circuit recently handed down a key creditors' rights decision <i>Sharp Int'l Corp. v. State Street Bank & Trust Co.</i> (<i>In re Sharp Int'l Corp. & Sharp Sales Corp.</i>), 2005 U.S. App. LEXIS 5241(2d Cir. Apr. 1, 2005). The court affirmed the lower courts' finding that a secured lender was <i>not</i> liable for aiding and abetting management's breach of fiduciary duty, and <i>not</i> liable for receiving a $12.25 million loan repayment from a closely held borrower it correctly suspected of engaging in massive fraud. The decision limits the scope of a lender's duties to its borrower and other creditors. Absent the lender's participation in its borrower's fraud, the lender should have no liability on a fraudulent transfer theory or on any other basis at least in New York, where <i>Sharp</i> arose.
The Progressive Lawyer
August 31, 2005
In March of this year, in Part One of this article, we discussed the importance of the initial pendente lite application in introducing the parties to the judge and setting the tone for the balance of the case. The mandate that we provide judges with sound, hard evidence at the <i>pendente lite</i> phase -- in order to enable the courts to deal fairly with both sides pending the submission of final proofs -- was heavily stressed.
Asset Finance: Next-Generation Technology Systems Critical to New Business Model
August 01, 2005
Spurred by increasing customer demands, new competitive pressures and regulatory changes, the North America equipment leasing industry is undergoing dynamic change. It will affect how lessors conduct business for years to come, with companies feverishly developing new products, income streams and distribution channels, while still seeking further operational efficiencies.
The Taxman Comes: Bracing for the End of Bonus Depreciation
August 01, 2005
Imagine a very successful equipment leasing company that showed little or no profit for the last 4 years, and so, paid little or no federal taxes. This year, that same company could show a $5 million profit and face a federal tax bill that could easily total $2 million.
Court Casts Doubts on Value of Information Disclaimers in Lease Syndications
August 01, 2005
In a standard lease syndication transaction, the lease syndicator (<i>ie</i>, the seller of the lease) wants to ensure that it is not responsible for the accuracy or completeness of the underlying lessee's financial data. The seller thus typically requires its buyer to affirmatively acknowledge that the buyer itself has made a complete and independent investigation of the lessee's financial condition and is fully satisfied with the lessor's credit standing. The buyer will also be expected to acknowledge that, in acquiring the syndicated lease, it is in no way relying on the seller's business judgment or financial expertise, and has not relied on any information provided by the seller as to the lessee's financial condition.
In the Marketplace
August 01, 2005
Highlights of the latest equipment leasing news from around the country.
