Talks in the boardroom of acquiring a competitor? Disposing of certain company assets or an entire division?
In examining and analyzing whether to buy, sell, merge or transfer the stock or assets of a business, certain basic tax concepts must be considered.
When structuring a merger or acquisition transaction, the business owner (who is mindful of these details) can attain a competitive advantage by formulating a tax beneficial acquisition.
Although tax laws have become too plentiful and complex, one area has remained fairly constant – tax-free reorganizations. In terms of structuring a merger or acquisition transaction, IRS Code Section 368 identifies the basic types of tax-free reorganizations and provides for nonrecognition of gain. If IRS rules are followed properly, reorganizations allow businesses tax-free treatment for mergers, acquisitions, recapitalizations, changes in corporate charters and reorganizations in connection with bankruptcies.
Before attempting to choose an appropriate structure for a restructuring transaction, it is necessary to understand the business objectives and constraints. Business owners must consider several factors before the official handshake to finalize the deal.
* What is the expected growth of the target company within its industry?
* What is the appropriate method of financing the transaction?
* Do both companies share the same or similar mission statements, goals and values?
* What will be the impact on employee morale?
* What is the amount of time and cost associated with the business integration?
* What tax attributes will remain with the restructured entity?
The most common question posed to CPAs by their clients are:
* Do the parties to the transaction want an asset sale or a stock sale? Sellers often prefer a stock sale to avoid double taxation; buyers may prefer an asset sale to get a “step up” in basis of the assets purchased. A special election that results in a single level of tax to the seller should be considered (“Section 338(h)(10)” election).
* Do you want the reorganization to be structured as tax-free or partially tax-free?
Qualified tax-free reorganizations usually fall within one of the following categories:
1. Type “A” Reorganization. A statutory merger or consolidation in which two or more corporations are combined and only one survives. “A” mergers are relatively simple and less expensive than other types of reorganizations, but may result in unwanted assets and liabilities that cannot be culled out.
2. Type “B” Reorganization. The acquisition of stock of one corporation in exchange for part or all of the buyer’s voting stock. While “B” reorganization limits the purchaser’s exposure to liabilities, it is rarely used because the buyer cannot use cash in the exchange (or the transaction becomes taxable).
3. Type “C” Reorganization. A stock for asset exchange.
4. Type “D” Reorganization. A transfer by a corporation of part or all of its assets to another corporation.
Tax-free treatment is premised on the continuity of the business enterprise and continuity of proprietary interest in the combined form. Only those transactions in which the shareholders continue to own an equity stake in the surviving entity qualify for tax-free treatment. The transaction must also have a valid business purpose (other than for mere tax avoidance).
Finally, the surviving corporation must continue the purchased company’s historic business or use a significant portion of the target company’s assets in a business.
Compliance with the rules of Section 368 does not always avoid gain recognition altogether. A tax-free reorganization may have some tax recognition consequences, such as in the case where “boot” (cash or nonqualifying property) is received. Specifically, the seller will realize gain in the amount of any boot received in the transaction.
An acquisition is one of the most significant events in the life of a corporation. The treatment of mergers and acquisitions accounts for a large and extremely complex set of IRS rules. It is imperative that your CPA and other advisers are involved starting with the early planning stages of a potential merger or acquisition.
Robert N. “Bob” Greenberger, CPA, PFS, is a principal at Tauber & Balser P.C. in charge of the tax department. With more than 20 years of professional experience, he has assisted companies with reorganizations through tax planning and by obtaining favorable IRS rulings. He has served as an instructor on complex tax topics including “Buying and Selling a Business in Georgia.” Reach him at (404) 814-4949 or [email protected].
