U.S. Tax Court Sides With PepsiCo in IRS Dispute Over Debt-vs-Equity Case

PepsiCo won a $363 million court battle with Internal Revenue Service this week in a case that may have large implications for other companies that operate abroad.

The point of contention revolved around the concepts of equity and debt, and the use of hybrid securities that can appear to be either in certain scenarios. In PepsiCo’s case, the U.S. company expanded its operations abroad in the 1990s and established a facility in the Netherlands to remain competitive with Coca-Cola, which had moved into the European and Asian markets, Reuters explains.

The IRS imposed a large tax bill on the company for amounts owed between 1998 and 2002, arguing that PepsiCo’s Dutch payments to its parent company were considered debt interest payments from its Dutch subsidiaries, and therefore subject to corporate income taxes under U.S. tax law, Reuters reports.

During this period, PepsiCo created hybrid securities which were treated as debt in the Netherlands, but equity in the United States. The company argued that it had an equity stake in its Dutch subsidiaries, and the payments were non-taxable returns on capital investments. U.S. Judge Joseph Goeke agreed with PepsiCo, noting that the company had used “legitimate tax planning” to establish its hybrid securities.

In his complex 100-page ruling, Judge Goeke explained that PepsiCo needed to spend billions of dollars on capital investments to establish itself in European areas, and tax changes prompted PepsiCo to transfer ownership of its foreign partnerships to Dutch holding companies. As a result, these partnerships passed to the control of Dutch subsidiaries, which were then issued new promissory notes by U.S.-based PepsiCo to fund new European markets. As a result of this process, the Judge agreed that PepsiCo’s characterizations of debt and equity were legitimate in the case.

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Frank Brunetti has been practicing law for over thirty years in the areas of estate and wealth preservation, tax planning for business entities and complex tax matters. He is admitted to the New Jersey and New York Bars as well as the United States Tax Court. Mr. Brunetti provides representation in federal and state tax matters, IRS controversies, estate and business planning and guidance for the preparation of wills and trusts as well as the administration of estates. For more information, please visit Frank Brunetti's full biography at Scarinci Hollenbeck

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