US Taxation of Structured Notes (736903722 1) (003) - Mayer Brown
US Taxation of Structured Notes
Thomas A. Humphreys Remmelt A. Reigersman Brennan W. Young
April 28, 2020
Agenda
? History ? Structured Notes ? Tax Classification
? Examples
? Select Tax Considerations
? Constructive Ownership (Section 1260) ? PFIC and FIRPTA ? Form 8281 ? Withholding Tax ? Dividend Equivalents ? Potential Issue with Indices (or Baskets) ? Tax Considerations for COVID-19
2
History
? Common law: taxpayer's method of accounting ? Code section 1275(d) ? 1986 proposed OID regulations ? 1996 OID regulations
3
Dollar Bond Index Linked Securities ("Dollar BILS")
? Lehman Brothers Corporate Bond Index-Total Return (simplified example)
? 10 different 10% corporate bonds, all purchased on index start date for $100 each so initial index value= $1000
? Interest payments deemed reinvested in the index ? So, if all bonds paid 5% on the same first semi-annual interest
payment date, and all bonds were still worth $100 each then $50 interest payment deemed reinvested in $5 par amount for each of the same 10 bonds ? Result: After 6 months, index value is $1050
4
Dollar BILS
? Merrill Lynch issues $100 million Dollar BILS ? Senior debt ? Principal protected ? Due in 10 years ? No current interest payments ? Interest payment at maturity equal to increase, if any, in Lehman
Corporate Bond Index-Total Return from start date to maturity date
5
Dollar BILS Common Law
? Cash method taxpayer: includes interest in gross income when the taxpayer actually (or constructively) receives the interest
? Accrual method taxpayer: "all events" test ? Result for Dollar BILS
? Holder not required to include interest income before maturity ? Sale before maturity: potential long-term capital gain
6
Structured Notes ? Tax Classification
Tax Classification
Principal Protected?
Yes
No
"Type 1" Note (Debt)
Bears a Periodic Coupon?
No
Yes
"Type 2" Note
(Open Transaction)
8
"Type 3" Note
(Alternative Characterizations)
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