Ch. 8 - Taxable Corporate Acquisitions/Dispositions

Corporate ownership & disposition options:

1) Sale of stock – transfer mechanics are easy to

accomplish; LT capital gain treatment to the individual seller of the stock; risk to the buyer about unknown corporate liabilities.

2) Sale of assets – more complicated asset transfer

arrangements;  concerns about non-assignable assets; various tax characterizations for the transferred assets, dependent upon the allocation of the consideration provided by buyer.

Four Alternatives:
Taxable Dispositions  p.350

Possible transfer alternatives for the taxable disposition of a corporate business:

1. Sale by the corporation of its assets and then distribution of these proceeds in liquidation.

2. Distribution by the corporation of its assets “in kind” to the shareholders who then sell the assets.

3. Sale of the stock by the shareholders.

4. Sale of the assets at the corporate level and no liquidation distribution by the corporation.

Taxable Asset Acquisitions    Consideration Paid     p.351

Sale of its assets by the target corporation to a purchaser for cash, notes, etc.  (but not for the Acquirer’s stock - which exchange could be eligible for tax-free corporate reorganization treatment (see Chapter 9).

Various types of consideration might be paid for these acquired assets:  cash, promissory notes, bonds & other property (e.g., stock of other than the purchaser corporate entity).

Possible structures for the asset acquisition       p.351

1)  Forward cash merger of Target into Acquirer for cash (or merger into a subsidiary of Acquirer).  Equivalent to a sale of assets and liquidation by the acquired corporation.  Rev. Rul. 69-6.

2)  Liquidation of the Target followed by the shareholder sale of the assets to Acquirer.

3) Sale of the assets by Target with subsequent distribution of the proceeds to the shareholders.

4) Sale of assets, with the proceeds retained (thereby avoiding shareholder level gain).

Issues Upon Corp Retention of Proceeds & Corp. Status

“Lock-in” effect because of retention of stock until shareholder death to enable §1014 basis step-up.

Possible personal holding company status risk – requiring current distributions of income to the shareholders to avoid the PHC penalty tax.

Possible conversion of the corporation to S corporation status (but note S Corporation provision limitations, e.g., too much S Corp investment income after having been a C corp).

Allocation of the Purchase Price for Tax Purposes

§1060 requires an allocation of the purchase price paid for the assets acquired for cash.

Cf., William v. McGowan case (p. 353) re sale of separate assets and not the sale of the "business" enterprise as one unit.

Cf., the sale of shares of a corporation (one asset).

This fragmentation approach requires a purchase price allocation & a tax basis allocation among the various assets acquired by the purchaser.

Tax Basis Allocation Planning Objectives   p.353

Seller: If a tax rate differential exists, a tax planning objective will be to allocate proceeds to those capital assets producing LTCG;  but, no income tax rate differential exists for the selling corporation (all 35%; but consider possible NOL & capital loss carryover utilization).

Buyer: Wants to allocate the purchase price to inventory and other short lived assets - to enable a prompt income tax deduction of these costs.  Avoid allocation to goodwill (15 years) and land & bldgs.

Approaches to Allocation of Buyer’s Purchase Price

1. Proportionate methods, allocation based on the relative fair market values of all assets.

2. Residual method - allocation (in order) to: (1) liquid assets,  (2) tangible assets, (3) intangible assets, and, (4) goodwill (i.e., based on the increasing difficulty of valuation).  

§1060 implements the residual method.

Also, an allocation is made to a "covenant not to compete,” treated as an acquired asset. 

Amortization of Intangibles
p.354

§197 amortization – Cost for intangible assets is amortizable over a 15 year period without regard to their actual "useful life.”

§197 assets defined:  customer lists, patents, know-how, licenses, franchises, etc., including goodwill and going concern value;  also, “covenants not to compete” (even though the period of the non-compete covenant is actually much shorter than 15 years).  Why this 15 year allocation?

Allocation of Price - §1060 Asset Classes           p.356

Class 1 assets:     Cash & cash equivalents.

Class 2 assets:     Marketable securities.

Class 3 assets:     Accounts receivable.

Class 4 assets:       Inventory.

Class 5 assets:       Tangible property.

Class 6 assets:       Intangibles (§197).

Class 7 assets:      Goodwill & going concern                                               value (also §197 assets).

Agreement for Allocation of the Purchase Price?   p.356

1)  Should the buyer and seller agree on a purchase price allocation?

2)  What is the binding nature of such a price allocation agreement on the IRS?

3)  Can the taxpayer reject the agreement and report another purchase price allocation?  See the Danielson case (p. 356). 

§1060 specifies the binding nature of this agreement for the taxpayers.

See IRS Form 8594, “Asset Acquisition Statement.”

Stock Acquisitions     p.357

Purchaser buys stock of a corporation from the shareholders.  Structuring options are:

1.  Direct purchase from the shareholders.

Similar to a Type “B” tax-free reorganization.

What about non-consenting shareholders?

Answer:  No deal unless a super majority is obtained, then can be followed by a “squeeze-out” merger to eliminate the remaining reluctant shareholders.                                        continued

Stock Acquisitions          p.357
cont.

2.  Reverse triangular cash merger:    

a)  Purchaser (P) forms a transitory subsidiary & that new sub then merges into Target; and

b)  Target shareholders receive cash (and notes) of

purchaser. Similar to the tax-free “Reverse Triangular Merger.” Shareholders are treated as selling Target stock to P in taxable sale.

c)  Purchaser receives the Target stock.  Target

thereby becomes a subsidiary of P.

Stock Acquisitions -
Income Tax Results

Results of either (a) a direct stock purchase or (b) a reverse subsidiary cash merger:

1.  Selling shareholders - capital gain treatment upon their sales of shares (& §453?).

2.  The purchaser takes a cost basis for the acquired shares in the acquired corporation.

Impact to the Target Corp.?  Unaffected, except should this transaction actually be treated as a deemed asset acquisition?

Kimbell-Diamond case
Asset Purchase?        p.358

Corporation acquired stock of another corporation with involuntary conversion proceeds (under Code §1033).  Objective was to acquire the assets.

Issue re tax basis of the corporate assets acquired by the corporate transferee in the liquidation. 

Tax basis for assets was higher than asset FMV.

Was this a tax-free liquidation of wholly owned subsidiary into parent corporation, under §332?  No, held: a deemed cash asset acquisition.

Sequel to Kimbell-Diamond p.360

Enactment of §334(b)(2) – if stock acquisition by corp. of 800% subsidiary and liquidation within two years, then stock acquisition was treated as an asset acquisition. 

Objective to enable a tax basis step-up for the assets (and no gain recognition because of General Utilities) upon actual corporate liquidation.

Further response: §338 enactment – no corporate liquidation required.

Code §338 - Elective Asset Purchase Tax Treatment

Can a corporate shareholder get a tax basis step-up for indirectly acquired assets without the liquidation of the acquired corporation?

If treated as a liquidation - therefore, gain recognition results as if the appreciated assets had been (i) distributed in kind to shareholder, and

(ii) re-infused into a new corporation (§351).

But, the stock basis for the purchasing shareholder in the deemed liquidating corporation disappears.

Code §338 Objectives
in a Stock Purchase        p.361

1.  Same federal income tax effects as if:

  (i) a sale by Target corporation of its assets,  followed by

  (ii) a corporate liquidation into a parent corp.

2.  The buyer gets a cost basis in the assets acquired from Target.

3.  Tax attributes of the Target disappear (e.g.,  the e&p account and the old holding periods for the various assets).

Share Purchase and Tax Planning Options       p.360

1. No §338 election and the asset tax bases inside the corporation are unaffected.

2. Do not elect §338, but liquidate under §332 – the historic asset tax bases move upstream.

3. Elect §338 and treat the stock transaction as a taxable asset acquisition (keeping the sub. corp).

4. Elect §338, treat the acquisition as an asset acquisition and, thereafter, liquidate the acquired corporation upstream (under §332).

Qualification Requirements for the §338 Election  p.361

1. Acquisition by the purchasing corporation of at least an 80% interest in another corporation (Target) during a 12 month acquisition period, i.e., a "qualified stock purchase” has then occurred.

2. Buyer must make an irrevocable election.

3. Treated as a hypothetical sale by Target for asset fair market values as of the acquisition date. 

Defining the Sale Price -Deemed Fair Market Value

“Aggregate deemed sale price” (ADSP) - the price allocable to the assets deemed sold by Target.

Target treated as selling the assets for the ADSP.

This deemed sale price includes: 

  1) price of acquired stock (as grossed-up, to approximate the real price if not all the stock is then held by the purchaser);  and,

  2) the acquired liabilities (Crane case), including the income tax liability incurred in the asset sale.

Consider the similarity to an asset sale/purchase.

Who Pays Income Tax on this Deemed Sale?

The purchasing corporation has the income tax payment obligation for the recognized asset gain.

Why?  For state law purposes the old corporation (for FIT purposes) and the new corporation (for FIT purposes) are the same corporation.

Therefore, nothing changes with the corporate charter as filed with the state secretary of state.

The income tax liability for the recognized asset gain is that of the corporation – now in the hands of the purchaser.

Adjusted Grossed-up Basis of Acquired Assets (AGUB)

Tax basis to new Target (owned by Purchaser) for assets deemed acquired by Purchaser consists of:

1. Grossed-up price of P's recently purchased stock  (need to gross-up where not all shares have been acquired as of deemed liquidation).

2. P’s actual basis in non-recently purchased stock (more than 12 months holding period).

3. Target liabilities, including income tax liabilities resulting from the deemed asset sale.

See p. 364.

Allocation of the “Adjusted Grossed-up Basis”          p.365

The objective of determining the AGUB tax basis is

to determine the amount to be allocated to the

Target’s various assets after the deemed asset

purchase. §338(b)(5) regulations.

This tax basis is allocated to the various assets, as

specified in the §338(b)(5) income tax regulations,

similar to the §1060 approach to allocating the

purchase price in a taxable asset acquisition. 

Subsidiary Sale - Possible §338(h)(10) Election   p.367

Acquisition of the stock of a corp. subsidiary (rather than a precedent §332 liquidation).

The Parent corporation is the seller of the target subsidiary corp. stock (keeping the sub alive).

Possible §338(h)(10) election - Treat the  transaction as (1) if it were a sale of T's assets while a member of the seller's consolidated group,  and, (2) S then liquidated tax-free into Acquiring Parent under §332.  Objective: To avoid two corporate level gain tax events.

When Use the §338(h)(10) Election?                    p.368

1) Large potential gain on the stock, but limited

gain on the assets - as if (a) an actual §332 liquidation into parent corporation, and, then, (b) a sale of the subsidiary’s assets.

2) Consolidated group has losses from other

operations which can be used to offset the gain realized on the deemed asset sale for the subsidiary being sold.

§336(e) Proposed Regulations                p.369

Regs. authorized that, a (seller) corporation that

owns 80% of stock of another corporation may

elect to treat stock sale as if an asset sale.

Old Target treated as selling all assets to New

Target for aggregate deemed disposition price.

This provision applies to distribution of T stock as

well as sales & exchanges.

§336 Problem (a)
p.371

X disposes of 85 shares (of 100) within 12 months,

i.e., more than 80%:

30 + 50 + 5 = 85 (but not 10 to related person).

Therefore, X as seller may (alone) make the §336(e)

election.  Joint election not required here.

§336 Problem (b)
p.371

Tax consequences of §336(e) election:

1) No gain or loss on distribution of shares.

2) Old T recognizes all gain on deemed disposition of its assets.

What about loss assets?  Only a portion of the loss  my be recognized – equal to the loss attributed to the (30) shares sold before the disposition date.

New T determines adjusted grossed-up basis similar to §338(h)(10).

Comparison of Acquisition Methods                      p.372

Probable alternatives:  

1) Sell stock with no §338 election (one level of tax).

2) Make §338 election if Target corp. has net

operating losses to offset recognized gains.

3) Special treatment where Target corp. is a

subsidiary of another corporation – Code

§338(h)(10) election possibility with gain

reported on Seller’s consolidated tax return. 

Problem (a)                      p.373
Asset Sale and Liquidation

T:  (1) adopts a plan of complete liquidation;

(2) sells (at the corporate level) its 1.1 mil. non-cash assets (subject to 300x liabilities) to P for 800x cash (corporate level tax on gain of $175,000); and, 

(3) distributes the after-tax proceeds (how much?) to the three shareholders in proportion to their stockholdings (A&B have LTCG but C has loss).

Next question: Basis to P for acquired assets?  Cost basis of $1.1 million (800x plus 300x liability).

Problem (b)                      p.374
Asset Liquidating Distribution

T (i) adopts plan of liquidation; (ii) transfers all assets (& liabilities) to shareholders; and,

(iii) shareholders sell the assets to P.

Tax effects of the distribution to (i) corporation – gain treatment under §336(a); and

(ii) Shareholders – treatment under §331.

Also, income tax basis effects to P?  Tax basis of assets is $1.1 million (allocated per §1060).

Problem (c)                      p.374
Installment Note Distribution

P paid T $200,000 in cash and $600,000 in notes with market rate of interest payable annually and the entire principal payable in five years.  Issues re the availability of installment sale treatment upon: (i) T’s asset sale (inventory, but bulk sale?), and (ii) T’s distribution of notes.  Gain is recognized to the corp. on the note transfer to the shareholders.

Further, may A and B (C having a loss) report their §331(a) gain on the installment method upon the liquidation of Target? See §453(h)(1)(A).

Problem (d)                      p.374
Asset Sale & No Liquidation

Target sells all its assets to P & T recognizes $150,000 of ordinary income and $350,000 net LTCG.  However, T does not liquidate but invests the ($825,000) after-tax cash proceeds in publicly traded securities. Increase to T’s E&P by $325,000 ($500,000 gain less the 175,000 tax liability triggered on the sale).

No distribution of proceeds and the §331 tax is avoided at the shareholder level.  What tax risks?

Problem (e)                      p.374
Stock Purchase- §338 Election

P purchases all the stock of T for $800 per share and makes a Code §338 election.  Why $800?

Shareholders recognize capital gain (or loss) on their share sales.

P is eligible to make a §338 election since a

“qualified stock purchase” has occurred.

New T is treated as a new corporation which purchased all the old T assets on the day after the acquisition date.                        continued

Problem (e), continued              p. 374

New T’s basis in its acquired assets:

1)  $800,000 grossed up basis (sales amount here)

2)  $300,000 bank loan

3)  $175,000 tax paid

Total “adjusted grossed-up basis” is $1,275,000.

This $1,275,000 is then allocable among T’s assets under Code §338(b)(5) (& Code § 1060).

Stock sale & §338 election are same as asset sale.

Problem (f)                       p.374
Stock Purchase & No §338 

P purchases all the stock of T for cash but does not make the Code §338 election.

T is not deemed to have sold the assets and, therefore, T recognizes no current gain or loss.  

T's has the same asset bases and other T tax attributes remain as prior to the sale.

A knowledgeable buyer would not pay $1 million for the stock because of the future income tax liability upon T’s asset sales. But more than 825x?

Problem (g)                      p.374
Choice of Sales Method?

Method of choice is a purchase of stock without a §338 election.

If either (1) Target sells assets and is liquidated,

or (2)  Target shareholders sell stock and a Code §338 election is made,

the transaction generates tax at both the shareholder and the corporation level.

Option (3): Do not make §338 election and do not pay current tax merely to get a tax basis step-up!

Problem (h)                      p.374
Target With NOL Carryover

If T had a NOL carryover of $600,000:

T could shelter the $500,000 of gain on the deemed sale by using the NOL to offset the sales gain.

A §338 election then enables new T to take a stepped up basis to fair market value for assets without any income tax cost resulting from the election.

Could P otherwise use the NOL?   Possible §382 limit on P’s future NOL utilization?

Problem (i)                       p.374
Target as Subsidiary

Assume T is a wholly owned subsidiary of S, Inc. and S has 200x adjusted basis in T stock. 

1) T distributes all of its assets (subject to the liability) to S in complete liquidation. This liquidation of T is tax-free to S (under §332) and to T (under §337).

2)  S then sells the assets to P. On the sale of assets S recognizes $150,000 ordinary income and $350,000 net LTCG.  P has a §1012 cost basis for the various acquired assets.

Problem (j)                       p.374
Acquisition of Target Stock

P insists that the transaction must be structured as an acquisition of T stock.

T is the subsidiary of corporate Seller (S) and a member of a consolidated group.

§338(h)(10) permits S and P to jointly elect to treat the transaction as a deemed sale of T's assets in a single transaction, rather than as a sale by S of the T stock. A lesser gain amount is realized then.

S recognizes no gain (or loss) on the stock sale – here a larger stock gain than asset sale gain.

Tax Policy Issues – Stock vs. Asset Purchases   p.375 

Should the repeal of the General Utilities doctrine

remain in corporate liquidation/takeover context? 

Does a double tax (corporate and shareholder)

encourage a “lock-in effect”?

Is this a detriment only to closely held businesses?

How provide any relief?  At the shareholder or

corporate level?  Integrated treatment?

What impact of 15% tax rate on individual

shareholders’ capital gain?

Tax Treatment of       p.375 Acquisition Expenses

Choices for the buyer: 

1) Immediate deduction (ordinarily preferred)

2) Amortization (e.g., debt financing)

3) Frozen in the buyer’s tax basis until the disposition of the asset (e.g., stock cost).

Tax treatment depends on the specific acquired assets & financing arrangements.

Cf.:  Target’s expenses (hostile or friendly?).

Possible Application of INDOPCO Decision     p.376

Holding that takeover costs in a friendly takeover

were nondeductible capital expenses – since the

cost produced a “future benefit.” 

Cost need not be related to a specific asset.

Different treatment for fees to prevent a hostile

tender offer – only seeking to preserve the entity - 

until changing (?) to a friendly transaction.  Staley

Mfg. Co. (7^th Cir) case,  p. 389.

Acquisitions & Cost Recovery         p.377

Failed acquisitions:  Costs incurred in investigating an acquisition and the transaction fails or is abandoned – §165 enables a loss deduction.

The §263 (Indopco) regulations -  Costs incurred to complete a transaction must be capitalized and amortized. But, a current deduction is permitted for costs to find a White Knight and to fight hostile takeover attempts.

LBOs – Types of Transactions              p.379

Objectives: Reduce equity and increase debt which

Facilitates:  (1) deductible interest and (2) greater

income per share (and greater share value based

on the “earnings per share” probable multiple).

- To facilitate a “going private” transaction.

- To facilitate a “bootstrap acquisition” of another enterprise.

- To facilitate a stock tender offer.

Recall: Chap. 3 re debt-equity considerations.

Further benefit available: dividends taxed at low 15% rate (to individuals) & DRD; cf., interest.

LBOs & Tax Limitations on Excessive Debt          p.388

1) “Junk bond” - Applicable high yield discount

(AHYDO) obligations - §163(e)(5).

See §163(e)(5)(F)(iii) –temporary suspension,

through 2010 because of financial market crash.

Notice 2010-11.

2)  Payment in kind (PIK) bonds

3)  Limit the use of an NOL attributable to debt leveraging interest expense for an LBO. §172(h).

continued

LBOs & Tax Limitations on Debt, cont.               p.390

4)  Earnings stripping limitation  - deductible interest paid to foreign lender (exempt from U.S. income tax).  Code §163(j).  Limited where a ratio and the proportion of income reduced by interest are exceeded.  But, possible carryover of any excess interest expense deduction for future use.

5) Classification issues – debt for tax & equity for GAAP?