Cape Town Convention: Complex Questions and Significant Opportunities
October 03, 2005
The Cape Town Convention on International Interests in Mobile Equipment ("Cape Town" or "CT") and the related Aircraft Protocol ("Protocol") (<i>www.unidroit.org/english/conventions/mobile-equipment/main.htm</i>) continue to advance slowly toward an expected effective date in 2006. When the Protocol enters into force it will affect virtually every commercial and business aviation transaction in the United States and many other nations around the world. Although Cape Town and the Protocol (collectively, the "Treaty") promise to facilitate aircraft financing and provide new financing opportunities, the Treaty also poses numerous questions and requires new approaches to documenting and closing aviation transactions.
In the Marketplace
October 03, 2005
Highlights of the latest equipment leasing news from around the country.
Are Your Lease Payments Still Deductible? The Confounding IRS Guidance Limiting the 'Entertainment' Use of Business Aircraft
October 03, 2005
In its zeal to eradicate perceived abuses and further clip the wings of executives who, based on press reports, took great pleasure in using the company's airplane for personal purposes, Congress amended section 274(e)(2) of the Internal Revenue Code (the "Code") in the American Jobs Creation Act of 2004 ("AJCA"). Effective on the date of enactment (Oct. 22, 2004), these amendments effectively reversed the decisions of the Tax Court and Eighth Circuit in <i>Sutherland Lumber-Southwest, Inc. v. Commissioner</i>, 114 T.C. 197 (2000), <i>aff'd</i> 255 F.3d 495 (8th Cir. 2001), <i>acq.</i> AOD 2002-02 (Feb. 11, 2002), and prompted the Internal Revenue Service ("IRS" or the "Service") to issue guidance containing a myriad of rule changes and hinting at others, leaving tax practitioners scratching their heads and companies running for cover.
The Taxman Comes: Bracing for the End of Bonus Depreciation
August 31, 2005
With bonus depreciation gone, even equipment leasing companies that do not make any more book profit in 2005 than they did in 2004 may nonetheless find themselves facing sharply higher tax liabilities. In fact, 2005 taxes will be especially painful: First, equipment leasing companies will not have the advantage of applying bonus depreciation to new assets, so they have lost a substantial deduction. Second, depreciation is a zero-sum game. You can speed up or slow down the schedule, but you can never depreciate more than 100% of an asset's cost. So if you depreciate and deduct more than 50% of the value in its first year, there is significantly less value available to depreciate in subsequent years.
The New Battle of Midway: Appeals Court Finds Middle Ground for Lessors to Recover All Post-Petition Lease Obligations
August 31, 2005
The leasing industry is going through wars again. In addition to bankrupt industrial companies and retailers, airlines are either in bankruptcy or teetering on the brink of a Chapter 11 filing. Such precarious times engender a host of issues for lessors, the paramount question of course being "do I get paid?" Key to that is what lessors are entitled to for the "post-petition" phase, the time between the date of the bankruptcy filing and the date the lease is either assumed or rejected by a bankruptcy trustee or a debtor in possession ("DIP"). Fractious court decisions have made it uncertain how and for how much lessors may recover for post-petition contractual lease obligations, but now a new appellate court decision may prove to be the turning point toward victory for the leasing industry.
In the Marketplace
August 31, 2005
Highlights of the latest equipment leasing news from around the country.
Good Faith Lender Has No Fiduciary Duty to Other Creditors Or Its Borrower
August 31, 2005
The Second Circuit recently handed down a key creditors' rights decision <i>Sharp Int'l Corp. v. State Street Bank & Trust Co.</i> (<i>In re Sharp Int'l Corp. & Sharp Sales Corp.</i>), 2005 U.S. App. LEXIS 5241(2d Cir. Apr. 1, 2005). The court affirmed the lower courts' finding that a secured lender was <i>not</i> liable for aiding and abetting management's breach of fiduciary duty, and <i>not</i> liable for receiving a $12.25 million loan repayment from a closely held borrower it correctly suspected of engaging in massive fraud. The decision limits the scope of a lender's duties to its borrower and other creditors. Absent the lender's participation in its borrower's fraud, the lender should have no liability on a fraudulent transfer theory or on any other basis at least in New York, where <i>Sharp</i> arose.
