Hybrid Instruments and IRS Notice 94-47

Instruments that are treated as debt for tax purposes and equity for regulatory, rating agency, and GAAP purposes are referred to as hybrid instruments.

In 1994, the IRS issued Notice 94-47 which said that the purpose of the notice is to:

  1. Scrutinize hybrid instruments to decide whether their purported status as debt is appropriate
  2. Instruments of particular interest to the IRS are those that are treated as debt but that have equity features such as
    1. Unreasonably long maturity
    2. An ability to repay the instrument’s principal with the issuer’s stock

Also, the factors similar to those developed in the Fin Hay Realty case will be considered.

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