NEW YORK – Darden Restaurant Inc.'s plans to spin off some of its holdings into a real estate investment trust (REIT) point to a gold mine that others can tap, but a recent statement by the U.S. tax authority raises cautionary flags.
Darden on June 23 said it would place 430 of its restaurants into a REIT to extract unrealized value from its properties in a tax-free spinoff, similar to a move announced in April that could raise $2.5 billion for struggling retailer Sears Holdings Corp.
Several hedge funds also have asked U.S. department store company Macy's Inc. to explore options for its real estate, Reuters reported recently.
But the Internal Revenue Service in May said it is reviewing the U.S. tax code that allows companies to spin off assets tax-free. The IRS was responding to inquiries about whether it would change its review practices when the operation being spun off is small relative to other assets.
A so-called "active trade or business" at one time was needed to represent at least 5 percent of the company, but it was revoked, said Christopher Mangin, a partner at Hunton & Williams in Richmond, Va., who has worked on REIT spinoffs.
"Now there's sort of a no man's land," he said. "People don't really know if that still applies or the fact that they revoked it means that they don't really think about it that way anymore."
Time will tell whether the IRS statement has a detrimental effect on corporate spinoff plans, Mangin said.
IRS lawyer Isaac Zimbalist read a statement to an American Bar Association meeting in Washington on May 19 that the spinoff provision had attracted public attention, and "we are thinking about it," he said.
Gene Lee, Darden's chief executive, told analysts that the company believed the operating business it plans to spin off meets all applicable laws.
"We have been watching developments closely and recognize that the IRS is reviewing its ruling practice in this area," he said.