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White Paper

New IRS Regulations Will Adversely Impact Common REIT Transactions

 
The Treasury and IRS recently published temporary regulations changing the rules that apply to so-called “bottom dollar” guarantees and similar arrangements. These new regulations will adversely impact tax planning techniques that were available in common REIT transactions under the prior regulations.

Common transactions under prior law
Leveraged Partnership Transactions. Prior to the new regulations, an owner of appreciated real estate could transfer the property to a joint venture in exchange for equity and cash without triggering tax on the built-in gain in respect to the cash, so long as a sufficient amount of the joint venture’s debt was “recourse” to the transferor. Under prior law, the joint venture’s debt could often be treated as “recourse” for this purpose to the extent the transferor guaranteed the joint venture’s debt, including a relatively low-risk guarantee of only the bottom portion of the debt (i.e., a bottom dollar guarantee) or other similar arrangements.

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David Passey is a partner in the Tax, Employee Benefits, and Trusts and Estates Practice Group in Sheppard, Mullin, Richter & Hampton LLP’s New York office. His practice covers a wide variety of matters including tax controversy, mergers and acquisitions, partnership transactions, real estate transactions and structured products. Mr. Passey's practice also regularly includes advising private equity funds with respect to fund formation and acquisitions, with an emphasis on the tax and ERISA aspects of these transactions.
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New IRS Regulations Will Adversely Impact Common REIT Transactions

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New IRS Regulations Will Adversely Impact Common REIT Transactions

Faculty

David J. Passey

Sheppard, Mullin, Richter & Hampton LLP

David Passey is a partner in the Tax, Employee Benefits, and Trusts and Estates Practice Group in Sheppard, Mullin, Richter & Hampton LLP’s New York office. His practice covers a wide variety of matters including tax controversy, mergers and acquisitions, partnership transactions, real estate transactions and structured products. Mr. Passey's practice also regularly includes advising private equity funds with respect to fund formation and acquisitions, with an emphasis on the tax and ERISA aspects of these transactions.

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New IRS Regulations Will Adversely Impact Common REIT Transactions

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