Top 10 Tax Code Provisions to Leverage in M&A (Part 1)

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The episode discusses 10 key tax code provisions relevant to mergers and acquisitions (M&A) transactions. It is divided into multiple parts, with Part 1 covering the following provisions:

1. Section 338 - Election for Treating Stock Purchases as Asset Purchases

This provision allows buyers to treat a stock purchase as if they are purchasing the underlying assets of the business, enabling them to step up the basis of the acquired assets to their fair market value for tax purposes.

2. Section 1202 - Qualified Small Business Stock Exclusions

This provision allows investors to exclude capital gains taxes on the sale of stock in qualified small businesses, subject to certain eligibility criteria.

3. Section 197 - Amortization of Goodwill and Intangibles

This provision provides uniform rules for the amortization of intangible assets, such as goodwill, franchise rights, patents, and trademarks, over a 15-year period.

4. Section 280G - Golden Parachute Payments

This provision addresses excessive compensation packages (golden parachutes) paid to executives and key employees during a change of control event, such as a merger or acquisition.

5. Section 382 - Limitation on Net Operating Losses

This provision limits the amount of net operating losses that a company can use after an ownership change to prevent companies from acquiring loss corporations solely for tax benefits.

5 Best Quotes

1. "Section 338 allows buyers to treat a stock purchase as if they're purchasing the underlying assets of the business. And that means for tax purposes, the buyer can step up the basis of the acquired assets to their fair market value as opposed to the book value, which can result in greater depreciation, amortization deductions over time."

2. "Section 1202 is a powerful tool for investors and business owners who want to maximize their returns by excluding capital gains taxes on the sale of stock in small businesses."

3. "Section 197 was introduced to basically provide some uniform rules around amortization of intangible assets intangible assets, what are they it's goodwill, it's franchise rights, it's patents, it's trademarks."

4. "Section 280G of the US tax code was created to address this golden parachute concept. Golden parachute are these large compensation packages there's severance payments that are paid to executives and they're paid out to key employees when there's a change of control event so a merger or an acquisition is considered a change of control event."

5. "Section 382, it curbs this practice by limiting the amount of net operating losses that a company can use after the acquisition and that's based on the company's value at the time of the ownership change and this prevents companies from using net operating losses as a tax sheltering tool."

Lessons Learned

This episode provides a high level overview of several key tax code provisions that can significantly impact the structuring and tax implications of M&A transactions. It highlights the importance of understanding these provisions and working closely with legal and financial advisors to ensure that deals are structured efficiently and in compliance with tax regulations. The detailed explanations, examples, and practical considerations offered in the show are valuable for M&A advisors, business owners, and investors involved in buying or selling businesses.

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