Regulations issued earlier this week by the Treasury raise serious questions about whether beleaguered companies such as Chrysler Corp. will be able to take advantage of a controversial new leasing system in which corporations can sell tax breaks to each other.
The new regulations already have relegated to legal limbo a $20 million-plus tax sale deal between International Harvester Co. and Chris Craft Industries Inc.
Cautioning that he is not absolutely sure of the consequences of the regulations, attorney Ernest S. Christian Jr., who has been involved in lease deals totalling about $1 billion worth of investments, said the regulations may "make the leasing process impossible" for corporations "who do not have excellent credit."
The new leasing law basically allows one company to sell tax credits and deductions to another for cash. The purpose, in part, is to give unprofitable companies a chance to take advantage of the new tax law.
Another participant in lease arrangements, Peter K. Nevitt, president of BankAmerilease, supported this assessment, saying that companies operating on the margin of solvency will become less attractive to profitable companies seeking to buy tax breaks.
If this view is accurate--and it was supported by a number of other sources--it suggests that the leasing provisions may provide far less tax benefit to companies that could go bankrupt.
Christian, who represents Chrysler, said he was not speaking for any specific firms, but certain procedures required under the regulations "are going to cause tremendous problems."
The provision in the regulations causing the most anxiety threatens the value of tax breaks for a profitable company that enters into a lease (or tax sale) with a marginal firm that could go into bankruptcy.
"It's true that a lessor a profitable company buying a poor company's tax breaks will have to be concerned about the penalty of recapture," requirements that a portion of the tax break be paid back, said John Chapoton, asistant Treasury secretary for tax policy. "I recognize the problem, but I don't think there is any answer to it."
A second part of the regulations--or missing part, in fact--has turned the lease deal between International Harvester and Chris Craft into what one of the participants calls "a crapshoot."
The Treasury reserved a decision on what are known as investment-tax-credit strip leases.
Under this kind of transaction, a marginal company could sell a profitable company the 10 percent investment tax credit (ITC) on an investment in equipment, while keeping the right to deduct capital depreciation over the 5-year period provided under the new tax law. By not making a decision now, the Treasury in effect turned any of these leases into gambles, subject to challenge by the Internal Revenue Service.
William J. Martin, who is tax director for International Harvester, bitterly complained that the reservation threatens the strip lease his firm is involved in, violating "everything I had read that indicated . . . this would be a means of aiding distressed industries." Martin contended that "the ITC strip lease is the best way to bypass credit problems."
A key aide on the Senate Finance Committee, which formulated much of the leasing language in the 1981 Reagan tax bill, dismissed complaints that the regulations issued by the Treasury are too restrictive and indicated that, if anything, the regulations may not be tight enough.
"We didn't want the leasing provision to become a shovel and pickup truck to the Treasury" for companies to increase profits indiscriminately by trading tax breaks, he said.