FORTUNE — Dell Inc. has its major asset—about $11 billion of cash—located primarily outside the United States. That means that it would face a multi-billion-dollar tax bill if it repatriated the money or borrowed against it. Therefore, most people have assumed that Dell’s cash is essentially useless when it comes to funding a possible buyout, or helping Dell (DELL) pay its post-buyout bills.
However, there may be a way for Dell to borrow ultra-cheaply against its foreign cash without a tax bill. And, by doing so, it effectively would be using the cash to fund its buyout.
The idea, suggested by tax expert Robert Willens of Robert Willens, LLC (with a bit of kibitzing from me) involves borrowing not against the cash itself, but borrowing against the stock of the foreign subsidiary that holds the cash.
Willens says that a U.S. company can borrow in the U.S. against its overseas assets without tax consequences by pledging the stock of its foreign subsidiaries, provided that no more than two-thirds of the subsidiaries’ voting power is posted as collateral.
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So how would that let Dell borrow against all its cash? Watch:
Dell could use a high-vote, low-vote structure to set up the subsidiary. One class of stock, presumably the high-voting class, would have two-thirds of the subsidiary’s voting power, but would hold all the subsidiary’s cash. Dell then could borrow against that stock, effectively pledging its offshore cash without triggering a U.S. tax bill.
If Dell defaults on its loan, the lenders could seize the pledged stock, and thus get their hands on the cash. Having the stock seized by lenders would trigger U.S. tax consequences—but the consequences would be for Dell, not for the foreclosing lenders.
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So the lenders would get the cash and Dell would incur a U.S. tax liability. However, in that case Dell would already be in financial difficulty, perhaps even in Chapter 11. Therefore, that liability wouldn’t matter to its lenders — who already would have been repaid — and would make the U.S. government one of Dell’s many creditors.
Please note that Willens, with a little help from me, has roughed this out on the back of an envelope, so to speak. He’s not saying that this would work. What he and I are saying is that this strategy or something similar might be the hidden factor explaining why so many lenders are apparently eager to provide cheap financing to a high-risk-seeming Dell buyout.
There are many potential legal pitfalls for such a strategy, but what the Dell? Maybe someone has figured out how the Dells of the world can effectively bring their offshore, untaxed U.S. cash into the country without forking over 35% to the IRS. If that’s the case, that’s going to be a lot bigger story than Michael Dell’s latest shenanigans. Stay tuned.
