EmpireStateBuildingInvestors .com     Toll Free 866-574-1712
  • Home
  • Page List
  • SEC-Malkin Letter
  • Contact
  • ESB Ownership
    • Questions about sales process and 50% split with sublessee. 4
    • Empire State Building and Sublessee 1961-2012: Changing views
    • $2.5 Billion Empire State Building Appraisal 6
    • Sublease >
      • "The supervisor has represented that historically, agreements have been entered into to share capital expenditure and financing costs"
      • Sublessee owners 7
      • Sublessee or Lessee 8
      • Is sublessee in a joint venture with Empire State Building? 9 empire state building ipo prospectus
      • Sublessee declines opportunity to become co-owner 10
      • Owner's relationship with sublessee is contractual 12
    • There is one owner of Empire State Building 11
    • Title to all of the improvements shall be in the Lessor 13
  • News
  • Lawsuits against Malkin Holdings L.L.C. since 3/1/12
    • 3/1/2012 First Class Action Lawsuit
    • 3/7/12 Second Class Action Suit
    • 3/12/12 Third Class Action Suit
  • SEC Rules
    • SEC rules
    • SEC rules 2
  • 3/16/12 SEC filing Empire State Building Associates
  • 4/4/12 SEC Filing EMPIRE STATE BUILDING ASSOCIATES L.L.C.
  • May 31 2012 Empire State Building Associates L.L.C. SEC Filing
  • How much is your ownership worth?
  • WSJ: High-Stakes Feud over Empire State Building
  • FORM OF PARTICIPATING AGREEMENT OF EMPIRE STATE BUILDING ASSOCIATES L.L.C.
  • No independent representative was retained to negotiate on behalf of the participants
  • S-4 Empire State Equity Trust February 13, 2012 14
  • definitions
  • continued from home page 15
  • Empire State Owners Go Ape Over IPO Tax Issues: Wall Street Journal April 8 2012
  • January 9, 2012 Answer to SEC inquiry
  • REITs Spring an Unnerving Surprise
  • Average Rent paid according to Malkin Holdings L.L.C.
  • Duties of Supervisor of Associates
  • Reuters: Empire State Building IPO change may help pay tax
  • Wall Street Journal: Tax Terms Amended in Empire State Building IPO
  • How to Ruin a Safe Bet; Did Rockefeller Center Financiers Reach Too Far?
  • May 31 2012 Helmsley Estate Driving Empire State Building IPO, Malkins Say
  • SEC May 11, 2012 :" "There are material risks and conflicts of interest associated with the consolidation."
  • Empire State Realty Trust, Inc. Lockup Agreement
  • Sublease or Lease
  • Shared Debt Obligation
  • Eliminating Two-Tier Ownership
  • Sublease renewals
  • June 9, 2008 Consent for Loan for Improvement Program
  • December 27, 1961 Lease Empire State Building Prudential Insurance Company and Empire State Building Associates
  • Lease renewals
  • June 8 2008 Loan for Improvements
  • June 9, 2008 Empire State Building Improvements Budget
  • $10 million REIT fees paid out 2011 Empire State Building IPO
  • 2011 Empire State Building Company LLC financials
  • SEC filing July 2, 2012 Empire State Building Associates L.L.C
  • ESBA number of participants
  • On August 6, 2012, Malkin Holdings L.L.C., the supervisor of Empire State Building Associates L.L.C. (the “Registrant”), provided the following to persons calling participants in the Registrant, to be used as a script for such calls:
  • SEC August 6, 2012 Empire State Realty Trust, Inc
  • Poll of ESBA participants
  • August 9, 2012 Legal Proceedings Empire State Building Associates 10Q
  • Columbia University Sublesse interest
  • August 9, 2012 SEC filing of New Risk Factor of More Lawsuits against Management
  • 2012: Observatory increased admission prices over 15%
  • Wells Notice
  • SEC Filing 8/24/12 "legally distinct from a joint venture"‏ malkin empire state sec filings
  • Empire State Realty Trust Empire State Realty Trust, Inc. Empire State Building IPO
  • Top ten reasons to Vote NO to sale of Empire State Building to REIT
  • Empire State Building Income
  • Page 1
  • Economic Joint Venture
  • 50/50 split
  • Empire State Building privately owned by Empire State Building Company?
  • S-4
  • 11/5/12 Settlement reached in Empire State Realty Trust suit
  • S-4 Red-lined version 11/2/12
  • Class Action Suit
  • Empire State Building Company Partnership Agreement
  • January 28, 2013 $800 Class Action Lawsuit Filed
  • REIT fees to ESBA investors
  • 1971 Sublessee Operating Agreement and Amendments
  • 1971 Empire State Building Company Participation Agreement
  • SEC 2/5/13 1971 Sublessee Empire State Building Company Participation Agreement
  • Top Ten Vote No
  • Sublease and improvements
  • Ex-Wien partner: Vote No to REIT
  • NYC's Towering TV Choice: 1 WTC Or Empire
  • Observatory
  • 1961 Empire State Building Associates Prospectus
  • A Yen for Yield Could Rock U.S. REIT
  • Law360
  • REfin Blog
  • Crain's New York: Bidders up ante at Empire State Bldg.
  • Crains New York: Another bidder moves to upset Empire St. Bldg. plan.
  • ESBA purchase of fee title 2001-2
  • Damage and Destruction:
  • ESBA land building cost percentages
  • Revman headed for Empire State Building
  • SL Green says private market will value ESB higher
  • Private market values exceed public market values
  • Thor makes second offer for Empire State Building
  • Empire State Building Investors Again Sue Owners Over IPO
  • Empire State Building Topless Model Lawsuit
  • Empire State Building $500 Million Lawsuit against Malkin Holdings
  • Investors Launch $600M Suit Over Empire State Building Deal
  • Law360: Report Details Malkin's Rebuff Of Empire State Bldg. Bids‏
  • Empire State Building Investor Appeals $55M Settlement
  • Empire State Building Investors Rip Owners Over Discovery
  • SEC Freedom of Information Act Exemptions
  • ESRT SEC filings comments and Malkin Holdings uploaded answers
  • ESRT SEC Indexed files
  • FREEDOM OF INFORMATION ACT (FOIA) Annual Report for Fiscal Year 2013 (October 1, 2012 through September 30, 2013)
  • Freedom of Information Appeal (FOIA) Resources
  • “MALKIN FAMILY CONTRIBUTORS” to REIT
  • FOIA Vaughn Index
  • sec-glomar-response-to-foia-request-for-copies-of-interviews-with-empire-state-building-investors
  • “[WE] CAN NEITHER CONFIRM NOR DENY THE EXISTENCE OR NONEXISTENCE OF RECORDS RESPONSIVE TO YOUR REQUEST”1 : REFORMING THE GLOMAR RESPONSE UNDER FOIA
  • SEC issues Glomar Response for ESRT-first since 2010
  • Glomar Response-Office of Government Information Services
  • Empire State Building $600 Million lawsuit against Peter Malkin and Tony Malkin
  • SEC FOIA Lawsuit for Empire State Building REIT records
  • Case 1:14-cv-01140 EDELMAN v. SECURITIES AND EXCHANGE COMMISSION Complaint
  • AGREEMENT BETWEEN MALKIN HOLDINGS LLC AND HELMSLEY ENTERPRISES, INC.
  • PARTNERSHIP AGREEMENTS and FORM OF PARTICIPATING AGREEMENT For Lincoln and Fish Buildings
  • Helmsley Management to self manage
  • SEC Division of Corporation Finance Staff Legal Bulletin No. 1 (with Addendum) "Confidential Treatment Requests"
  • Untitled
  • EDELMAN v. SECURITIES AND EXCHANGE COMMISSION-Case Assigned to Judge Rosemary M. Collyer. (md, )
  • About 20% of the people who were warned over a two-year period that they might be sued by U.S. regulators for allegedly violating securities law ended up not facing charges
  • justice.gov guide-freedom-information-act
  • September 19, 2013
  • September 5, 2013
  • August 12, 2013
  • December 21, 2012
  • December 17, 2012
  • October 19, 2012
  • October 10, 2012
  • October 5, 2012
  • September 24, 2012
  • September 13, 2012 file 1
  • September 13, 2012 file 2
  • September 10, 2012 file 1
  • September 10, 2012 file 2
  • September 5, 2012
  • August 27, 2012
  • May 8 , 2012
  • July 3, 2012
  • The OGIS Library Vaughn Index
  • FOIA Facts: Inside the Process of Preparing a Vaughn Index
  • Sample Vaughn Indexes
  • ESRT Equity Interests
  • SEC Vaughn Index Lawsuits
  • Gavin vs. SEC
  • GAVIN v. UNITED STATES SECURITIES EXCHANGE COMM., Civil No. 04-4522 (PAM/JSM). , at 4 (D. Minn. Oct. 13, 2006)
  • Empire State Realty Trust Ownership
  • Improvements ownership
  • Therefore, each of Associates and Lessee will ultimately bear one-half of the cost of the improvement program
  • CF Memo
  • SEC Is Steering More Trials to Judges It Appoints
  • 10/20/14 Activity in Case 1:14-cv-01140-RMC EDELMAN v. SECURITIES AND EXCHANGE COMMISSION Order
  • NYC Rooftop RF Options Widen
  • H.R.1211 - FOIA Act
  • Exemption 5
  • Exemption 6
  • 11/10/14 ESRT Update on Lawsuits
  • SEC: How Investigations Work
  • SEC FOIA Exclusions
  • SEC FOIA Requests November 2014
  • FOIA Glomar response conversion to The (c)(1) Exclusion
  • Law360: Empire State Building Investors Launch Another Suit Over IPO
  • 2/17/15: PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT
  • ESB SEC FOIA Requests Updated List
  • ESB SEC FOIA Requests Updated List March 2015
  • 04/17/15 RICHARD EDELMAN, ) Plaintiff, ) ) v. ) Case No. 1:14-CV-1140 (RDM) ) SECURITIES AND EXCHANGE ) COMMISSION, ) Defendant.
  • Malkin attorneys FOIA requests for ESB investigation files rebuffed by SEC
  • ESRT SEC Enforcement Investigation File
  • FOIA Lawsuit San Diego
  • Malkin Holdings lawyers Dewey Pegno SEC FOIA requests Empire State Building
  • Federal Court to Rule on release of SEC ESRT-Malkin Holdings Investigation Files
  • Peter Malkin Tony Malkin Lose Empire State Building Case Ruling
  • Malkin Holdings, Peter Malkin and Tony Malkin lose counterclaim ruling in Empire State Building Arbitration case.
  • Federal Court to rule on release of SEC ESRT Malkin Holdings ​Empire State Building investigation files.
  • SEC FOIA Lawsuit Empire State Realty Trust Malkin Holdings Consumer Complaints
  • Empire State Realty Trust Income Tax Treatment according to Malkin Holdings LLC
  • February 20, 2013 Re: In re Empire State Realty Trust, MNY-08894
  • SEC 662
  • SEC lawyers Empire State Building sale notes from calls and meetings with Malkin Holdings managers ordered released by Federal Judge
  • Malkin answer to SEC about unauthorized renewal of Empire State Building Master Lease
  • "SEC Ordered To Turn Over Empire State REIT Docs Index"
  • Empire State Building Department of Justice FOIA ruling Malkin Holdings

SEC Filing:  ​Empire State Realty Trust Income Tax Treatment according to Malkin Holdings LLC 



​Em
pire State Realty Trust Inc S-4 
Filed with SEC 12/21/12
Final Version

https://www.sec.gov/Archives/edgar/data/1541401/000119312512512349/d283359ds4a.htm
page 94


-----------------------------------------------------------------------------------------------------------------------------------------------------
U.S. Federal Income Tax Considerations of the Consolidation Proposal
It is expected that the consolidation should be treated for U.S. federal income tax purposes as follows:


 (i)If you receive solely shares of Class A common stock, the consolidation should be treated as a taxable sale of your participation interest in which gain or loss is recognized. Such gain or loss should generally equal the difference between your amount realized (which generally will equal the fair market value of shares of Class A common stock that you receive, plus any distribution you receive of consolidation expenses that the operating partnership pays as a reimbursement to your subject LLC, plus the share of liabilities associated with your participation interests that you are deemed to be relieved of under U.S. federal income tax law) and your adjusted tax basis in your participation interests. You will realize “phantom income” if you have a “negative capital account” with respect to your participation interest. In each of 250 West 57th St. Associates L.L.C. and 60 East 42nd St. Associates L.L.C., original participants have a “negative capital account.” If you are an individual or a partnership for New York State personal income tax purposes, any gain that you recognize in the consolidation will generally be treated as New York source income for New York State personal income tax purposes. As a result, you (or, if you are a partnership, any of your partners who are individuals) will generally be subject to New York State personal income tax on such gain even if you are treated as a New York nonresident for purposes of the New York State personal income tax. The New York City personal income tax should not apply to individuals who are treated as New York City nonresidents for purposes of the tax. If all of your participation interest is exchanged for Class A common stock pursuant to the consolidation, suspended passive activity losses associated with your participation interest, if any, may be eligible for treatment as losses that are not from a passive activity to the extent that they exceed income and gains from passive activities for your taxable year that includes the consolidation.

 (ii)If you receive solely operating partnership units, or if you receive a combination of (a) operating partnership units and (b) shares of common stock that do not exceed your allocable share, after certain adjustments, of certain qualified capital expenditures of the subject LLC, as further described under “U.S. Federal Income Tax Considerations—U.S. Federal Income Tax Consequences of the Consolidation—Receipt of Operating Partnership Units” (the “reimbursement amount”), the consolidation should be treated as a tax-deferred contribution by the subject LLC of the subject LLC’s property to the operating partnership in exchange for operating partnership units and common stock as a reimbursement of certain qualified capital expenditures, followed by a tax-deferred distribution of such operating partnership units and common stock to you. You should not generally recognize gain unless (i) the “disguised sale” rules of the Code apply, (ii) you are deemed to receive a constructive distribution of cash in excess of your tax basis in your operating partnership units under Sections 731 and 752(b) of the Code due to a reduction in your share of partnership liabilities or (iii) you have “at-risk” recapture income under Section 465(e) of the Code. To the extent that you do not recognize gain in the consolidation for U.S. federal income tax purposes, you also generally should not recognize gain for purposes of the New York State personal income tax and, if applicable, the New York City personal income tax.

 (iii)If you receive a combination of (a) operating partnership units and (b) shares of common stock in excess of your reimbursement amount, you should be treated as first selling a portion of your participation interest for such excess shares of common stock in a transaction in which gain or loss is recognized. Following such sale, the subject LLC should be treated as contributing the portion of its property not attributable to participation interests otherwise treated as having been sold to the operating partnership in exchange for operating partnership units and common stock as a reimbursement of
 
 
94



Table of Contents
 qualified capital expenditures in a tax-deferred contribution, and the subject LLC should be treated as distributing operating partnership units and shares of common stock equal to your reimbursement amount to you in a tax-deferred distribution.
If you receive solely Class A shares of common stock in the consolidation, or if you receive a combination of (a) operating partnership units and (b) an amount of common stock in excess of your reimbursement amount, upon receipt of such shares of common stock, you will be deemed to have consented to treat the consolidation as a sale of all or a portion of your participation interest in exchange for such shares of common stock for U.S. federal income tax purposes.
If you consent to the voluntary pro rata reimbursement program, you may be treated as receiving shares of common stock that you would otherwise receive in the consolidation and immediately transferring such shares of common stock to the supervisor as a reimbursement payment. For this purpose, even if you elect to receive solely operating partnership units in the consolidation, you should be treated as receiving shares of common stock equal to the amount that you are treated as transferring to the supervisor as a reimbursement payment. Accordingly, the gain or loss that you recognize in the consolidation transaction should take into account your deemed receipt of such common stock. You should be entitled to deduct the value of the shares of common stock that you are deemed to pay to the supervisor as an expense associated with your participation interest in your subject LLC. This deduction should offset the amount of gain you recognize, or increase the amount of losses you would otherwise recognize, as a result of your deemed receipt of shares of common stock. However, this deduction may be subject to certain limitations depending on your individual circumstances and may be required to be capitalized, and you should consult with your tax advisor regarding your ability to utilize all or a portion of this deduction for U.S. federal income tax purposes. See “U.S. Federal Income Tax Considerations—U.S. Federal Income Tax Considerations of the Voluntary Pro Rata Reimbursement Program for the Former Property Manager and Leasing Agent Legal Proceedings.”
Whether you receive operating partnership units, Class A common stock, or Class B common stock in connection with the consolidation, you will be allocated your proportionate share of the income and other tax items of the subject LLC for the period ending with the date of closing of the consolidation. You will have to report such income even though you do not receive cash in consideration for your participation interest.
Participants should carefully review “U.S. Federal Income Tax Considerations—U.S. Federal Income Tax Consequences of the Consolidation.” Participants should consult with their tax advisors with regard to the U.S. federal income tax, New York State personal income tax and New York City personal income tax consequences of receiving operating partnership units or common stock in exchange for their participation interests in their particular circumstances.
Powered by Create your own unique website with customizable templates.