In any corporate acquisition, there are tax and non-tax issues, multiple business considerations and goals of the parties involved with the transaction. The tax planning that is involved before, during and after the acquisition process may include many options and alternatives to achieve the tax and non-tax wishes and goals of the parties. Thus, one of the most important steps in the planning process of a corporate acquisition is to discuss and review the party’s intentions and goals, which may include short term matters and long term matters.
First, we need to identify the parties. In any corporate acquisition you will have the buyer who is looking to acquire one or more businesses that are operated and owned by another business. The seller, which may be referred to as the “target” or “target-corporation” may wish to be disposing of the business in exchange for some type or form of consideration, or merge in some way with the buyer. Broadly stated, the buyer may wish to purchase the stock of the target corporation, or acquire the assets of the corporation. Thus, in general, you can consider the purchase options to be a stock purchase or asset purchase of the target. Furthermore, there is the possibility that the acquisition could be a hostile acquisition. A hostile acquisition involves the acquisition of a publicly held company, like Wal Mart. The acquisition begins without any agreement between the purchaser and the target corporation. It is possible that through a hostile acquisition, the target may not even wish to be acquired or purchased by the buyer.
It is likely that the single most important factor in an acquisition will be the consideration to be paid or consideration received by target (property, stock and other items could be used as consideration). Thereafter, an important issue to consider and understand is whether the shareholders of the target corporation plan to or wish to have an equity ownership in the combined entity after the acquisition is completed, or if such shareholders wish to sell their entire ownership interest in exchange for a cash payment or other financial benefit. This issue will likely dictate the overall consideration involved and will, in many respects, control the overall structure of the transaction as well as the characterization of the transaction for tax purposes (taxable versus tax free). For example, if the parties wished to have a tax free reorganization, a common theme in a tax free reorganization is continuing ownership interest in the combined business by the previous shareholders of the target business. The transaction may only be able to qualify as a tax-free reorganization if a substantial portion of the consideration paid is the stock of acquiring corporation, or perhaps the stock of the acquiring corporation’s parent. Thus, consider whether or not the target shareholders receiving shares of the acquiring corporation would be practical if in fact the some or all of the target shareholders wished to receive cash consideration for their ownership interests. This example illustrates how the goals and wishes of the parties involved can dictate the transaction structure and thus the tax implications to the parties.
The above article has been prepared by John McGuire of The McGuire Law Firm. As a tax and business attorney, Mr. McGuire’s practice is focused on tax planning, tax matters before the IRS and business transactions from business start-ups & formation, to business contracts & acquisitions. You can schedule a free consultation with a business attorney at The McGuire Law Firm by calling 720-833-7705.