A day barely goes by without a news report about some corporate entity making a serious misstep that has them facing fines and penalties. Several cases of corporate litigation come to mind: Lawsuits against the tobacco industry and big pharma are probably the most publicized. And there are cases of environmental harm by manufacturers, public utilities, or most recently, railroad accidents impacting both the land and the communities that live there.
While most of these companies do not mean to cause harm, there is little argument that they do bear some responsibility for their part in certain outcomes. It is no surprise when a government entity like the EPA imposes fines, or when a trial results in a court-ordered settlement for compensatory or punitive damages.
When a company makes a mistake (or breaks the law,) the CFO and the rest of the C-Suite understand that they must pay the penalty imposed. There can be a silver lining though: Some portions of the payment may be tax deductible. But the ability to take advantage of the deduction depends on the structure and wording of the settlement agreement. This is why it is essential to bring in skilled counsel like Swiecicki & Muskett Attorneys at Law early in the process. A combination of expertise in both taxation law and corporate litigation is necessary to make the best of a bad situation.
Paying a Corporate Settlement for a Mishap
Disasters like the collapse of the Taum Sauk Reservoir in Missouri in 2005 or the Norfolk Southern derailment in Ohio in 2023 result in environmental issues and incur large settlements paid to government entities. While a corporation will negotiate to reduce the amount of their fines and penalties, if possible, they have no choice but to pay up once everything is settled.
But consider this: Say a settlement calls for payment due to the government of $10,000,000. But what if that amount is tax deductible at a 35% tax rate? This means a tax deduction of $3,500,000, or in other words, a net cash outflow of $6,500,000 instead of the full $10,000,000.
This is still a very large number, of course, but the reduction is significant. And for a smaller company, the difference between paying the full amount of a settlement with or without a tax deduction can mean the ability to make payroll, or even keep the doors open.
It is extremely unlikely, if not impossible, that an entire settlement would be tax deductible as in the example above. There are strict requirements for which portions are, and which are not, deductible. Furthermore, the settlement must be structured properly from the start; there is no going back to claim a deduction after the fines are paid.
Any company finding itself subject to fines and penalties can improve its outcome with a corporate tax attorney who understands the IRS rules and can structure the settlement appropriately.
What is Deductible After a Catastrophe?
Understanding the tax treatment of fines and penalties paid by corporations requires in-depth knowledge of Internal Revenue Code Section 162(f). A typical accounting department or even corporate counsel might not have the experience in both tax and litigation to unravel the complex rules surrounding the topic.
IRC Section 162(f) dictates that in general, a tax deduction is not allowed if the company violated any law. The exceptions to this are compensatory amounts paid for “restitution, remediation, or to come into compliance” with a law.
This means that if the taxpayer (the corporation that paid the fine or penalty) can establish that the money paid went toward correcting or remedying the situation, it might be able to be claimed as a deduction. So, if the money is restitution to those who were harmed, remediation of damaged property, or helps the company come into compliance with the law, it could be eligible.
- Repayment of embezzled funds, for example, falls under the category of restitution, so could be claimed as a tax deduction.
- If the corporation must reimburse the government for the costs to investigate or litigate, those amounts are not restitution, remediation, or to come into compliance, and are therefore not allowable as a deduction.
There are many other compensatory amounts involved in a corporate settlement that a corporate litigation attorney may or may not be able to make an argument for as deductible. This is why finding someone who specializes in these cases is so important.
Structuring the Settlement for the Best Outcome
A tax deduction is not just an accounting trick; it is cash back in the pockets of a corporation after paying a large sum. That cash can help lessen the blow to a company and its shareholders after a disastrous and expensive event.
In order to maximize the tax benefits of a settlement with a government entity, corporations must act fast to bring in legal counsel to help draft the agreement. The calculations and verbiage built into the document will determine the end result.
An experienced tax attorney will be able to differentiate the funds paid into different “buckets.” There are amounts that will be clearly either compensatory or non-compensatory. Then there are dollars that are subject to interpretation. It is here where a firm like Swiecicki & Muskett excels, finding ways to categorize expenses that will present a viable argument for the IRS.
The IRS can and typically will dispute claims that are not clear-cut. Settlement agreements that are drafted properly with the correct legal language and phrasing can stand up to the challenge.
No corporation is happy about making a mistake that causes damage or hurts people or the environment. And when accidents happen, they understand that there will be a price to pay. But understanding the tax implications of a corporate lawsuit can lessen the blow.