The purpose of this description is to demonstrate the importance of the tax impact in the sale of your business. As an M&A intermediary and member of the Ibba, International business Brokers Association, we identify our responsibility to advise that our clients use attorneys and tax accountants for independent guidance on transactions.
As a general rule, buyers of businesses have already completed some transactions. They have a process and are surrounded by a team of experienced mergers and acquisitions professionals. Sellers on the other hand, sell a business only one time. Their “team” consists of their face counsel who does general business law and their accountant who does their books and tax filings. It is important to note that the seller’s team may have puny or no touch in a business sale transaction.
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Another general rule is that a deal buildings that favors a buyer from the tax perspective ordinarily is detrimental to the seller’s tax situation and vice versa. For example, in allocating the buy price in an asset sale, the buyer wants the fastest write-off possible. From a tax standpoint he would want to allocate as much of the transaction value to a consulting contract for the jobber and tool with a short depreciation period.
A consulting contract is taxed to the jobber as earned income, generally the top potential tax rate. The contrast between the depreciated tax basis of tool and the whole of the buy price allocated is taxed to the jobber at the seller’s lowly wage tax rate. This is generally the second top tax rate (no Fica due on this vs. Earned income). The jobber would prefer to have more of the buy price allocated to goodwill, personal goodwill, and going concern value.
The jobber would be taxed at the more suitable private capital gains rates for gains in these categories. An private that was in the 40% wage tax bracket would pay capital gains at a 20% rate. Note: an asset sale of a business will ordinarily put a jobber into the top wage tax bracket.
The buyer’s write-off duration for goodwill, personal goodwill, and going concern value is fifteen years. This is far less desirable than the one or two years of cost “write-off” for a consulting agreement.
Another very important issue for tax purposes is whether the sale is a stock sale or an asset sale. Buyers generally prefer asset sales and sellers generally prefer stock sales. In an asset sale the buyer gets to take a step-up in basis for machinery and equipment. Let’s say that the seller’s depreciated value for the machinery and tool were 0,000. Fmv and buy price funds were .25 million.
Under a stock sale the buyer inherits the historical depreciation buildings for write-off. In an asset sale the buyer establishes the .25 million (stepped up value) as his basis for depreciation and gets the benefit of bigger write-offs for tax purposes.
The jobber prefers a stock sale because the whole gain is taxed at the more suitable long-term capital gains rate. For an asset sale a quantum of the gains will be taxed at the less suitable wage tax rates. In the example above, the seller’s tax liability for the machinery and tool gain in an asset sale would be 40% of the 5,000 gain or 0,000. In a stock sale the tax liability for the same gain associated with the machinery and tool is 20% of 5,000, or 5,000.
The form of the seller’s organization, for example C Corp, S Corp, or Llc are important to think in a business sale. In a C Corp vs. An S Corp and Llc, the gains are branch to double taxation. In a C Corp sale the gain from the sale of assets is taxed at the corporate wage tax rate. The remaining proceeds are distributed to the shareholders and the contrast between the liquidation proceeds and the stockholder stock basis are taxed at the individual’s long-term capital gains rate.
The gains have been taxed twice reducing the individual’s after-tax proceeds. An S Corp or Llc sale results in gains being taxed only once using the tax profile of the private stockholder.
Selling your business – tax observation checklist:
1. Get good tax and legal counsel when you institute the initial form of your business – C Corp, S Corp, or Llc etc.
2. If you institute a C Corp, maintain ownership of all appreciating assets face of the corporation (land and buildings, patents, trademarks, franchise rights). Note: in a C Corp sale, there are no long-term capital gains tax rates only wage tax rates. Long-term capital gains can only offset long-term capital losses. Personal assets sales can have suitable long-term capital gains treatment and you avoid double taxation for these assets with big gains.
3. Look first at the economics of the sales transaction and secondly at the tax structure.
4. Make sure your pro maintain team has deal production experience.
5. Before you take your business to the market, work with your professionals to understand your tax characteristics and how various deal structures will impact the after-tax sale proceeds
6. Before you faultless your sales transaction work with a financial planning or tax planning pro to resolve if there are strategies you can employ to defer or eliminate the payment of taxes.
7. Recognize that as a general rule your desire to “cash out” and receive all proceeds from your sale immediately will growth your tax liability.
8. Get your professionals involved early and keep them involved in analyzing various bids to resolve your best offer.
Again, the purpose of this description was not to offer you tax guidance (which I am not fine to do). It was to alert you to the huge potential impact that the deal buildings and taxes can have on the economics of your sales transaction and the importance of piquant the right legal and tax professionals.
Selling Your company – Deal structure and Taxes