In previous articles a business attorney from The McGuire Law Firm has discussed certain acquisitions between corporations. The article below will discuss an acquisition known as a cash for assets acquisition.
The first step of a cash for assets acquisition, Corporation 1 would pay Corporation 2 cash consideration of the assets of Corporation 2. Corporation 1 could decide to accept the liabilities of Corporation 2, and such acceptance would lower the purchase price. Please note, Corporation 1 does not have to accept the liabilities of Corporation 2 in this type of asset acquisition though. No change would be necessary in the corporation documents of Corporation 1 or Corporation 2 and no change would need to occur in the outstanding shares of either corporation as well. After the purchase, and as may be commonly seen, Corporation 2 could dissolve after the sale of the corporate assets. If Corporation 2 did dissolve, the corporate charter would be cancelled and the shares extinguished. After Corporation 2 satisfied all remaining liabilities, the remaining cash would be distributed to the shareholders of Corporation 2 in a liquidating distribution. The dissolution and liquidation of Corporation 2 would not impact the shareholders of Corporation 1.
If Corporation 2 did not dissolve and distribute the cash to the corporate shareholders, Corporation 2 would reinvest the cash in operating assets or for corporate operations. If Corporation 2 reinvested this cash in passive assets such as stocks or bonds, it is important to know that the Internal Revenue Code could deem Corporation 2 a Personal Holding Company and such designation may not have the most favorable tax treatment. Thus, from a practical point of view, a corporation in Corporation 2’s shoes, is likely to reinvest in business assets to produce income, or dissolve and distribute the monies to the shareholders.
The cash for assets acquisition differs from a stock swap merger in a couple of ways. First, the shareholders of Corporation 1 shareholders do not vote in the asset acquisition. Second, the post transaction of the Corporation 2 shareholders is different as in the cash acquisition the shareholders will be cashed out as opposed to holding shares in the survivor corporation. Third, Corporation 2’s pre-transaction liabilities may remain with Corporation 2 depending upon the terms of the transaction. Additionally, a stock swap merger, also known as an A Reorganization is typically a tax free transaction, whereas the cash for assets acquisition is likely to be a taxable transaction.
You can speak with a Denver business attorney at The McGuire Law Firm if you have questions regarding a business transaction and/or the tax implications of a business transaction.
