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The Liability-Offset Theory of Peracchi

Bradley T. Borden

Brooklyn Law School

Douglas L. Longhofer

Martin, Pringle

Tax Lawyer, Vol. 64, 2011
Brooklyn Law School, Legal Studies Paper No. 199

Peracchi v. Commissioner is a lightning rod for commentators and the bane of students of corporate income tax. In short, the decision makes no sense because it grants the maker of a note a section 1012 basis in the note, violating a fundamental principle of income taxation. Nonetheless, the decision helped preserve a fundamental aspect of corporate taxation - the tax-free formation of and contributions to controlled corporations. Because of its unorthodox application of the section1012 basis rules, the Peracchi decision is the subject of severe criticism. Unfortunately, commentators who criticize Peracchi generally fail to offer an alternative that recognizes general income tax principles, concepts of corporate income tax, and the economic realities of corporate formation and contributions to corporations.

This Article reviews the evolution of the corporate formation rules governing contributions of self-created notes. It discovers that Congress did not intend to impose taxable gain on shareholders who contribute self-created notes. It also reveals how the court in Peracchi reached the right conclusions (from an economic and corporate-tax-policy perspective) using the wrong analytical framework. After assessing current theories of Peracchi, the Article presents the liability-offset theory. Under this theory, the contributed self-created note would offset the liabilities assumed by the corporation in a manner similar that used in section 357(d). The Article illustrates that this theory adheres to general principles of income tax, honors concepts of corporate income tax, and recognizes the economic realities of corporate formation and contributions to corporations. The theory could therefore help resolve problems that stem from Peracchi and its progenitors.

Number of Pages in PDF File: 32

Keywords: Peracchi, IRC 357(c), IRC 357(d), corporate formation, contribution of note to corporation

JEL Classification: H25, K34, M41

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Date posted: August 4, 2010 ; Last revised: September 22, 2010

Suggested Citation

Borden, Bradley T. and Longhofer, Douglas L., The Liability-Offset Theory of Peracchi. Tax Lawyer, Vol. 64, 2011; Brooklyn Law School, Legal Studies Paper No. 199. Available at SSRN: http://ssrn.com/abstract=1652837

Contact Information

Bradley T. Borden (Contact Author)
Brooklyn Law School ( email )
250 Joralemon Street
Brooklyn, NY 11201
United States

Douglas L. Longhofer
Martin, Pringle ( email )
100 N. Broadway, Suite 500
Wichita, KS 67202
United States
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