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Perspectives
M&A Tax Talk
Insights on trends and recurring matters regarding US tax topics in M&A transactions
M&A often revolves around two organizations charting either a new path together or one that splits apart. Sometimes taking a wider view can be helpful. Our M&A Tax Talk series may help you see the bigger picture for your organization, providing you with insights to move forward with confidence throughout the M&A life cycle: strategy, readiness, execution, closing, and post close.
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Check out our other M&A Tax Talk series:
M&A Tax Talk: Navigating M&A during a recession miniseries
M&A Tax Talk: Private equity insights
Successor Tax Liabilities: Understanding the potential risks in M&A transactions
April 2024
Different tax successor liabilities will carryover to the buyer or be retained by a seller in an acquisition depending on the structure of the transaction. Buyers and sellers should be aware of what taxes to focus on in due diligence to understand the successor liability risks when acquiring a target business and potential dollars at risk, whether through a legal asset acquisition or in the acquisition of a legal entity. This article explains how understanding and identifying the potential tax exposure can help prepare both buyers and sellers for purchase agreement negotiations and can help mitigate unexpected cash tax outlays post-acquisition.
Transaction costs: Tax recovery and treatment
February 2024
As there is an increased focus on M&A preparation and strategy, one area that should not be overlooked is the potential tax “recovery” of transaction costs. Taxpayers should not oversimplify the approach to analyzing the recoverability of these costs and should be proactive in evaluating their treatment before permitting the deal process to advance too far. This article explores the many nuances and transaction specific considerations related to the recovery of transaction costs and outlines best practices for the treatment of these costs.
Navigating cross-border M&A in the Pillar Two World
November 2023
Pillar Two is the OECD’s approach to ensuring that multinational entities (MNEs) with a consolidated revenue of at least €750 million pay a global minimum tax of 15% in every jurisdiction where they operate. Transactions happening now and from 2024 onwards may already impact the MNEs’ future Pillar Two position and potential Pillar Two (top-up tax) liabilities. Therefore, Pillar Two considerations should be factored into a deal’s cost, contractual documentation, and information sharing. This article explains what Pillar Two M&A considerations are top-of-mind, who the rules apply to, and what you can do today to address these rules and considerations.
CAMT: Corporate alternative minimum tax
July 2023
The 15-percent corporate alternative minimum tax (“CAMT”) is a new, complex provision and raises many issues regarding whether CAMT applies to corporations (or groups of corporations) and, if so, how to determine any CAMT liability. The CAMT has certain rules and features that could impact M&A activity. Given the new and limited interim guidance, there may be uncertainty as to the application of the CAMT rules, which also may create additional risk with respect to pre-closing tax liabilities for tax years beginning after December 31, 2022. This article further explains the new 15-percent CMAT and outlines additional M&A considerations, modeling, and diligence for corporations.
Legal entity rationalization: Is now the time?
May 2023
As the M&A environment experiences a decrease in activity, it gives companies a chance to turn the focus on other planning opportunities. One common planning idea is legal entity rationalization (LER), which streamlines an organization’s legal entity structure to achieve efficiencies and realize selling, general, and administrative cost savings, as well as potential tax savings. What type of organization is a strong candidate for this opportunity? How does an organization go about starting what could be a potentially daunting planning initiative? This article explores how to determine if LER is applicable to your company and how to get started if the time is now.
Debt restructuring transactions
April 2023
In light of increasing interest rates and uncertain macroeconomic conditions, many companies may need to consider refinancing or otherwise addressing their capital structure, including deleveraging. This article outlines key tax considerations associated with various debt restructuring transactions, including debt modifications, debt-for-debt exchanges, and debt-for-equity exchanges that may result in taxable cancellation of indebtedness (COD) income.
Inflation Reduction Act of 2022: Welcoming back corporate AMT 2.0
January 2023
In 2022, Congress approved and President Biden signed into law the Inflation Reduction Act (IRA), which includes several direct tax increases on businesses. This article provides a high-level overview of three areas in which the IRA made significant changes to corporate tax law and considers their potential impact on M&A transactions. Specifically, it looks at (1) the new corporate book-income alternative minimum tax, (2) the new excise tax on stock buybacks, and (3) the expansion of clean energy tax incentives.
Continuation funds: Potential tax opportunities and considerations
November 2022
While the term “continuation fund” may encompass different forms, appropriate consideration should be given to the tax implications when evaluating or negotiating a continuation fund of any form. Early tax planning guides structuring alternatives and may serve to mitigate potential adverse tax consequences, including the tax characterization of proceeds received by exiting investors and strategies to achieve tax-deferred treatment for rolling investors. Our latest M&A Tax Talk serves as an overview of the complex and nuanced tax planning considerations associated with continuation funds.
Leveraged distributions: Uses, potential implications, and tax considerations
September 2022
Investors and shareholders have several options available for early monetization of or a partial exit from their investments. One such option is to recapitalize their investment with a leveraged distribution, either through a cash distribution/dividend or a share buy-back. In this article, we explore the definition of a leveraged distribution and the potential tax implications that should be considered.
Monetization techniques in Spin-offs
July 2022
The tax-free spin-off rules in Section 355 provide a tax-efficient pathway for a corporation to dispose of a business without corporate or shareholder-level tax. The spin-off rules also provide flexibility to partially monetize Distributing’s interest in Controlled in order to adjust the capital structures of both Distributing and Controlled on a tax-efficient basis. There are multiple methods to accomplish this, each with its own considerations and nuances under the tax rules.
Cash tax forecasting simplified
March 2022
A dynamic tax forecast model allows for scenario analytics and decision-making in a fast-moving transaction process. Such a forecast validates tax elements of the broader deal thesis–positioning the company for a well-informed purchase price and for post-closing enhancement and integration. Preparing such a forecast of a target’s cash income taxes does not need to be a daunting or burdensome task, using the framework in this article as a guide.
Global trade considerations
December 2021
As global trade operations become more complex and strategically important to international supply chains, they also impact various facets of mergers and acquisitions. In this article we explore the importance of understanding the current and future global trade requirements in PMI or divestiture projects in order to allow sufficient lead time to address government and business requirements, enable overall business continuity, and add incremental value in the transformation.
Tax Factbooks
August 2021
In the evolving M&A marketplace, we are seeing Tax Factbooks as a pre-sale tax preparation option that may increase the efficiency of the tax diligence process. In this article, we discuss what a Tax Factbook is, where we see them in the marketplace, the benefits of having one prepared, and how a Tax Factbook differs from vendor due diligence.
State tax insights on debt
June 2021
As a business is evaluating the use of debt and interest within the structure of a US group, state tax implications can vary and may require additional consideration. In this article, we examine how taxpayers can avoid adverse tax consequences by evaluating certain issues such as debtor identity and the differences between state and federal filing requirements, challenges in allocating existing debt, and the benefits of a co-obligor on a debt instrument.
Right as rain–Overview of the UP-C structure
March 2021
This article presents simple steps to assist organizations with their proactive planning, including implementation, the effects of exchange rights on legacy partners’ liquidity, methods to affect the exchange, and the tax receivable agreement. We focus on how the owners of pass-through legal entities can benefit from access to public capital markets, even while maintaining a single layer of tax and not being subject to publicly traded partnership rules.
Power shift, tax shift?
January 2021
A change in presidential administrations often signals the possibility of changes in tax policy and this is certainly true in the case of the current transition. President Biden has proposed modifying or repealing key provisions of the 2017 tax code overhaul known informally as the Tax Cuts and Jobs Act (TCJA, P.L. 115-97). This article provides a high-level overview of Biden’s proposed tax law changes to corporate and individual taxes and the potential impact on M&A transactions if such changes are enacted.
The case for estate planning pre-sale
November 2020
As taxpayers assess whether to sell a business, estate planning may be a key driver of the decision related to the timing and structure of a divestiture. This article examines the case for pre-sale estate planning and outlines external factors, including market volatility, historically low interest rates, and an all-time high estate tax exemption that may encourage business owners to be proactive with their estate planning. Proactive planning provides an opportunity to transfer long-term, life-changing wealth for one’s family in an organized and tax-efficient manner.
Debt modification tax rules
March 2020
Given the broad definition of “publicly-traded” under the tax rules, many debt instruments are treated as publicly-traded, including revolvers. This increases the likelihood that a “significant modification” of the debt would result in “phantom income” to the debtor company. If your company is modifying or restructuring existing debt, it is important that an analysis be performed to determine whether a “significant modification” has occurred and whether the debt is “publicly-traded,” as this could result in unexpected income inclusions for tax purposes.
Indirect tax considerations in M&A transactions in a post-Wayfair world
January 2020
The Wayfair ruling significantly changed when a state requires sales/use tax to be collected by remote sellers. This month we examine how the 2018 Wayfair court decision impacts buyers and sellers involved in M&A transactions. We’ll outline how the court decision impacts the determination of sales tax collection obligations and discuss sales tax considerations that should be addressed by both buyers and sellers.
Representation and warranty insurance
November 2019
The robust and competitive M&A market has led to an increase in representation and warranty insurance (RWI) policies, which has transformed the M&A process. This month we outline some of the key tax-related issues that RWI addresses, including its ability to protect a buyer against a seller’s breach of representation, and warranties included in an acquisition agreement. In addition, we’ll look at how RWI can help both buyers and sellers speed up – or even eliminate–the escrow process.
Proposed regulations would significantly impact the value of tax attributes following an ownership change
October 2019
This month, we examine the proposed rule changes that could significantly limit a corporation’s ability to utilize net operating losses (NOLs) and other tax attributes following an ownership change.
Specifically, we’ll examine how these proposed changes could impact an organization’s tax burden and identify some potential actions NOL companies—and buyers of such companies—should consider to ameliorate the negative effects that companies could face following an ownership change.
In January 2020 the IRS issued significant revisions to the applicability date provisions of the proposed section 382(h) regulations.
Divestiture-related tax considerations
September 2019
If you’ve ever sold a home, you know that preparation is key to achieving the best price. You make minor repairs, upgrade outdated appliances, put on a fresh coat of paint, and stage the home to make it attractive to potential buyers.
In many ways, selling a business is similar, except that your preparation is different. Specifically, it is critical to develop an understanding of the tax work that should be addressed in advance of starting negotiations.
Post-tax reform contracting considerations
July 2019
With the passage of the Tax Cuts and Jobs Acts of 2017 (TCJA), US taxpayers engaging in acquisitions and dispositions should evaluate additional contracting considerations for proposed transactions.
This is evident when drafting language in letters of intent (LOI) or purchase agreements regarding tax matters including the benefits of immediate expensing of acquired property, inheritance of transition tax liabilities, and how to treat net operating losses (NOLs) in the pre-closing period.
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