The 8th Circuit agreed with a tax court ruling that Nestlé Purina Petcare Company – or Ralston, its name during the relevant years – could not deduct payments for cash distribution redemptive dividends. Ralston seeks to deduct $9,406,030, the value of the cash distribution redemptive dividends, arguing that 26 U.S.C. § 404(k)(1) allows a deduction for the cash distribution redemptive dividends, or alternatively that a deduction is permitted by § 162(k)(2)(A)(iii).
The appellate court previously found in General Mills, Inc. v. United States, that § 162(k)(1) bars a deduction under § 404(k) for amounts paid to a corporation’s ESOP trust in order to redeem shares of the corporation’s stock. “Since the facts of GMI do not materially differ from the facts here, GMI controls,” the 8th Circuit said in the Nestle Purina decision.
In addition, the appellate court noted that the conference report out of Congress on the deduction-for-dividends-paid exception in § 162(k)(2)(A)(iii) indicates the scope of the exception, and provides that no portion of payments by a corporation in connection with a redemption of its stock is deductible.
Under the ESOP, when a participant left Ralston, the participant was required to direct the ESOP to convert the value of preferred stock allocated to his or her ESOP account into cash, shares of Ralston common stock, or a combination of both. If a participant elected cash, the trust could require that Ralston purchase stock from it, paying the trust a “redemptive dividend.” From the redemptive dividend, the Trust could distribute to the participant a “cash distribution redemptive dividend” as part of the total cash distributed to a participant.The 8th Circuit opinion is in Nestle Purina Petcare Co. v. Commissioner of Internal Revenue, No. 09-1381.