M&A Pulse: Tax Considerations when Selling your Business

Most business owners pay their fair share of taxes while running their company.  When it comes time to sell the business, most owners are seeking tax strategies to minimize taxes paid on their gain.  We know that tax considerations are a major driver of any commercial transaction, especially M&A transactions.  So, what should a seller keep in mind when considering a sale?  First, before going into the market and soliciting letters of intent (LOI), sellers should update their estate plan and engage in pre-transaction tax planning.  Ideally, this planning should be finalized a year in advance of a sale.  The closer to the sale, the less tax planning opportunities available.  Estate planning strategies including gifting and otherwise transferring interests to reduce wealth received directly by the seller.  Pre-tax planning may include reorganizing the structure of the business or changing tax elections.  Once the seller receives an LOI, the proposed structure of the transaction becomes paramount for the seller’s tax planning.  For example, structuring the transaction as an equity purchase likely could result in long-term capital gains treatment for the seller.  An asset sale structure could lead to a mixed result of ordinary income as well as capital gains for the seller, depending on how the purchase price is allocated.  Most times, a change in structure that benefits one party is a negative for the other party.  Thus, the seller must have competent legal counsel versed in M&A and taxation issues.  Further, how a purchase price is paid to the seller may have implications on timing as well as the treatment of the income.  Monies paid overtime may lead to tax on the income being deferred to later years.  Monies paid in forms such as for employment or consulting services or in consideration of a restrictive covenant likewise could have particular tax implications.  In summary, selling a business is most times the largest financial transaction for an entrepreneur.  Making certain to understand the tax treatment and implications at the earliest is paramount.  After all, for any entrepreneur, the bottom-line net amount is what ultimately counts, not the top-line valuation.

ABOUT MIKE MERCURIO

Mike-Mercurio (1)

[email protected] | 301.575.0332

Michael N. Mercurio is a leading attorney in the field of mergers and acquisitions (M&A). He serves as outside general counsel in buy-side and sell-side M&A, as well as in all business law and real estate law matters. As a strategic partner to firm clients, Mr. Mercurio regularly counsels entrepreneurial individuals and assorted entities on the many challenges, issues, and opportunities companies face throughout the business lifecycle—from start-up to eventual exit.

ABOUT OFFIT KURMAN

Offit Kurman, one of the fastest-growing, full-service law firms in the United States, serves dynamic businesses, individuals and families. With 17 offices and nearly 250 lawyers who counsel clients across more than 30 areas of practice, Offit Kurman helps maximize and protect business value and personal wealth by providing innovative and entrepreneurial counsel that focuses on clients’ business objectives, interests and goals. The firm is distinguished by the quality, breadth and global reach of its legal services and a unique operational structure that encourages a culture of collaboration. For more information, visit www.offitkurman.com.

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