Selling Your Business - Deal Structure and Taxes

The purpose of this article 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 recognize our responsibility to recommend that our clients use attorneys and tax accountants for independent advice on transactions.

As a general rule, buyers of businesses have already completed several 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 outside 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 little or no experience in a business sale transaction.

Another general rule is that a deal structure that favors a buyer from the tax perspective normally is detrimental to the seller's tax situation and vice versa. For example, in allocating the purchase 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 seller and equipment with a short depreciation period.

A consulting contract is taxed to the seller as earned income, generally the highest possible tax rate. The difference between the depreciated tax basis of equipment and the amount of the purchase price allocated is taxed to the seller at the seller's ordinary income tax rate. This is generally the second highest tax rate (no FICA due on this vs. earned income). The seller would prefer to have more of the purchase price allocated to goodwill, personal goodwill, and going concern value.

The seller would be taxed at the more favorable individual capital gains rates for gains in these categories. An individual that was in the 40% income tax bracket would pay capital gains at a 20% rate. Note: an asset sale of a business will normally put a seller into the highest income tax bracket.

The buyer's write-off period for goodwill, personal goodwill, and going concern value is fifteen years. This is far less desirable than the one or two years of expense "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 equipment were $600,000. FMV and purchase price allocation were $1.25 million.

Under a stock sale the buyer inherits the historical depreciation structure for write-off. In an asset sale the buyer establishes the $1.25 million (stepped up value) as his basis for depreciation and gets the advantage of bigger write-offs for tax purposes.

The seller prefers a stock sale because the entire gain is taxed at the more favorable long-term capital gains rate. For an asset sale a portion of the gains will be taxed at the less favorable income tax rates. In the example above, the seller's tax liability for the machinery and equipment gain in an asset sale would be 40% of the $625,000 gain or $250,000. In a stock sale the tax liability for the same gain associated with the machinery and equipment is 20% of $625,000, or $125,000.

The form of the seller's organization, for example C Corp, S Corp, or LLC are important to consider in a business sale. In a C Corp vs. an S Corp and LLC, the gains are subject to double taxation. In a C Corp sale the gain from the sale of assets is taxed at the corporate income tax rate. The remaining proceeds are distributed to the shareholders and the difference 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 individual stockholder.

Selling your business - tax consideration checklist:

1. Get good tax and legal counsel when you establish the initial form of your business - C Corp, S Corp, or LLC etc.

2. If you establish a C Corp, retain ownership of all appreciating assets outside 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 income tax rates. Long-term capital gains can only offset long-term capital losses. Personal assets sales can have favorable 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 professional support team has deal making 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 complete your sales transaction work with a financial planning or tax planning professional to determine 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 increase your tax liability.

8. Get your professionals involved early and keep them involved in analyzing various bids to determine your best offer.

Again, the purpose of this article was not to offer you tax advice (which I am not qualified to do). It was to alert you to the huge potential impact that the deal structure and taxes can have on the economics of your sales transaction and the importance of involving the right legal and tax professionals.

Selling Your Investment Property in 2010 Could Save You Thousands in Taxes

If you are an investor looking to sell one or more of your real estate holdings, you might want to consider completing the sales transaction in the next year. At the end of 2010, tax cuts put in place by President Bush will be reset to standard income tax rates and you will lose your opportunity to take advantage of the lower rates.

As an investor looking to sell a house fast, you are most likely already familiar with capital gains taxes, but most home buyers are not. Therefore, the decision to buy houses in PA is not made because of the capital gains tax reductions that you, the seller, will get if the property sells before the end of 2010.

The current capital gains tax rate is actually a two-fold calculation. If you are selling a property for which you have claimed depreciation, then you must be aware of the total amount of the depreciation claimed. Many investment home buyers bought properties as part of a we buy houses type program and want to sell the house now. In that case, the capital gains tax rate will be 10%.

On the other hand, if you have claimed depreciation be aware that when you find a home buyer, you will be taxed at 25% for the amount that you claimed in depreciation when you sell your house now. The advantage of selling is still in your favor however, since the remaining sales revenue will be taxed at the lower 10% rate.

This advantage means that you will keep more of the profits when you sell your house now, instead of waiting until after the end of 2011. Whether you pay just the lower amount of capital gains tax, or you split the percentage rate, you will still likely earn more from the sale in the next year than at any point in the future.

The market is definitely leaning toward sellers right now, because there are many individual home buyers in Philadelphia and investors looking to buy houses in PA. They are looking for deals, and although the idea of selling at a lower price does not always seem appealing in comparison to waiting a year or so to sell, today it is not a bad idea to sell a house fast for a lower price. This is because even at a lower selling price, your property is going to bring you larges profits than if you wait a year and sell for a significantly higher price.

Keep this information in mind as you make decisions regarding your real estate investments, particularly if you are already planning to sell in the near future. There hasn't been a better market for home buyers in years, and fortunately for the investor, prices are higher than they were over the last few years and there is a significant profit to be made by selling in the next year.

Capital Gains When Selling Your Home

Over the years the tax laws have changed with regards to how the sale of your home is taxed. There were once laws that said that you could rollover the profit from the sale into a new more expensive home. There used to be a one time exclusion on the sale of your home if you were over 65. Those laws are now no longer valid and have been replaced by the current law.

The current law states that if you purchase a home, and live in it for 2 out of 5 years, you do not have to pay capital gains (or any other tax) on up to $500,000 gain for a married filing joint couple or $250,000 gain for a single person. In plain English, this means that if a couple purchased a home for $200,000, lived in it for 2 years and then sold it, they could sell it for $700,000 without paying any taxes on the profit ($450,000 for a single person). There is no limit, you can buy and sell a home every two years with the same exclusion.

What if you do not live in the home for two years? There are three exceptions to the two year rule.

1. Change in Place of Employment. The IRS says that if you, your spouse, a co-owner of the home, or a person whose main home is the same as yours changes employment, you can still take the exclusion. The employment can be a new employer, the same employer or self employment. The new employment must however, be at least 50 mile farther from the home you sold than the old place of employment. The change of employment must take place while you are living in the home.

2. Health. The IRS says that you can claim the exclusion if you have to move because of a specific medical problem. This can be for a parent, grandparent, stepparent, sibling, step sibling, half sibling, mother or father in law, aunt, uncle, nephew, niece or cousin. The move must be to obtain, provide, or facilitate the diagnosis, cure, mitigation, or treatment of disease, illness or injury. You can't take the exclusion if you move just because it will benefit a persons general health or well-being unless a doctor recommends the change of residence.

3. Unforseen Circumstances. Unforseen circumstances is an event that you could not reasonable have anticipated before you bought and moved into the property. They include things such as natural or man made disasters, act of war or terrorism, death, unemployment (if you qualify for unemployment), divorce or legal separation, multiple births resulting from the same pregnancy or a change in employment that results in the inability to pay your ordinary living expenses. Unforseen circumstances does not cover if you just prefer a different home or your finances improve or you spend too much to maintain a luxurious life style.

Examples:

Employment: Justin was unemployed and living in a townhouse in Florida that he owned and used as his main home since 2005. He got a job in North Carolina and sold his townhouse in 2006. Because the distance between Justin's new place of employment and the home he sold is over 50 miles, he qualifies for the exclusion of the gain from the sale of the townhouse.

Health: In 2005, Chase and Lauren, husband and wife, bought a house that they used as their main home. Lauren's father has a chronic disease and is unable to care for himself. In 2006, Chase and Lauren sell their home in order to move into Lauren's father's house to provide care for him. Because they are moving to care for the father, they qualify for the exclusion.

Selling Your Business - A Tool To Reduce Capital Gains Taxes

"I would rather expire at my desk than to sell my business and pay Uncle Sam one dime in taxes." How many owners that have paid their fair share of taxes for twenty years of building their business feel this way? The tax bite is the single biggest factor in an owner's reluctance to sell his/her company.

I have previously written articles discussing various aspects of transaction structures to minimize taxes. As a result, I am often contacted by a panicked seller that is a week from closing his business sale as he looks in disbelief at his accountant's spreadsheet detailing the tax burden of his impending sale.

Recently, the seller of a Sub Chapter S Corporation with an $8 million transaction value contacted me. The tax basis was below $200,000 and $4 million of the transaction value was the assumption of debt. When the dust settled, he was looking at a capital gains tax liability of a staggering $965,000 while only receiving the remainder of proceeds after the assumption of debt. The assumption of debt is considered as part of the capital gain for tax purposes.

The owner sent his accountant's spreadsheet to me and since I am not a tax accountant, I sent it to my tax wizard at BDO Seidman. He found a few small tweaks, but said that there was not much that could be done from an accounting standpoint for this owner. When I reported this back to the seller I could feel his disappointment and frustration.

So I began my quest for a better solution. After several dozen phone calls to my professional network, I was directed to a little known vehicle called a Private Annuity Trust. This vehicle has passed the scrutiny of the IRS and the Tax Court. It is not a way to avoid the payment of taxes, rather a method of deferring them with substantial economic benefit to the owner's beneficiaries.

Below is a simplified description of the process. As the owner contemplates the sale of his business (or any highly appreciated asset for that matter) he "sells" it to a trust PRIOR to its ultimate sale. This trust purchases the asset at FMV and exchanges an annuity payment stream complete with IRS life expectancy tables and interest rates. The trust then sells the company to the buyer to fund the annuity.

The transaction is accompanied by a gift to the trust in the amount of 7% of the face value of the annuity. This is so it qualifies as a trust by creating an entity with economic value. Remember, the private annuity is viewed as having zero economic value because the asset minus the obligation theoretically equals zero.

The trust is in the name of the owner's beneficiaries and all aspects of the trust are controlled by the trustees/beneficiaries and not by the owner. The trust for the benefit of the heirs owns the assets and owns the annuity payment obligation. The trust can be structured to defer the annuity payments for a period of time to coincide with the owner's need to receive these payments, lets say, for example, ten years During those ten years the trust's investments or a commercial annuity grow without incurring a tax bite for the business sale.

When the annuity payments start, the owner is taxed at his then current tax rate for the portion of the annuity payment attributable to the capital gains, his basis (no tax), and depreciation recapture from the sale, and the income produced from the annuity. The annuity pays the owner and spouse this annuity payment until last to die or until the annuity investments run out. If the owner and spouse die, any remaining assets are transferred to the beneficiaries outside of estate tax liability.

If your investments perform at the rate used in the annuity calculation and the last to die lives to their exact life expectancy, theoretically the trust value will be whatever the gift portion (7% of the selling price) has grown to. However, if the investments do very well and you outlive the life expectancy tables, you could receive payments well in excess of the original annuity face value. Those excess payments would be taxed at your then current income tax rate.

If the investments do well and the value grows above the required annuity reserve amount, the excess can be distributed to the beneficiaries as income.

In the simplest of views, this acts like an IRA. You are not currently taxed on the amount you put in, it grows tax deferred and you pay taxes upon distribution, hopefully at a far more favorable tax rate. In the case of the frustrated seller from above, what if he deferred all payments by ten years on the full sale price and the $965,000 in capital gain taxes owed? He had a life expectancy of 20 years beyond the start of the distributions. The $965,000 that he did not pay in taxes grows at 7% to $1,939,323 by the time distributions start.

Every annuity payment contains a portion of the capital gain or 1/20th of the total capital gain annually. Therefore, the bulk of the resulting investment value of the capital gains tax deferral provides huge returns for years to come.

If it seems too good to be true, remember it is tax deferral and not tax avoidance. The owner has sold his business first to the trust in return for an annuity payment stream. The owner cannot control the trust. To the extent that the owner wants immediate access to some of the sales proceeds, he would pay all taxes in proportion to the amount he is receiving. In cases like the one above, this tax deferral tool can have a dramatic impact on the financial status of the owner and his heirs by allowing the tax deferred funds to compound for many years before their ultimate distribution and the payment of any tax.

Minimising Capital Gains Taxes When Selling Stocks

If you are located in the UK: The answer is simple really here. Instead of buying and selling stock and shares, use financial spread betting to trade. Spread betting is a form of short-term trading that is ideal for taking directional speculative positions on the stock market. In the United Kingdom and Ireland, no tax is applicable on gains made through spread betting because it is considered a gambling activity. You are also able to short markets as well. Alternatively, you can make sure of an Individual Savings Account to shelter your money from the taxman. The UK has recently introduced new rules that should be welcomed by regular share investors who want to reduce their CGT liability. Such individuals are likely to get the most from having an ISA.

If you are located in the USA: Under current USA law, you can donate appreciated stocks to charitable organizations and make a deduction on the full market value of the stocks without paying capital gains taxes if (and only if) you've held them for more than a year. So if you're planning to make a significant tax-deductible donation, don't do it in cash; donate the long-term-held stocks instead.

If you are located in Canada: In Canada, you can move your shares in a portfolio, without having to sell them, into a tax-protected program quite similar to the US 401(k). It's referred to as RRSP in Canada. You can sell without having to materialise gains at all, but it has to remain in the sheltered account in order to retain the tax protection. Having said that, in Canada, once you take the money out of the sheltered investment vehicle it's taxed normally as income.

In addition, it is worth noting that in the USA and most other European countries longer term gains like proceeds from funds are taxed more favorably. Of course it helps your tax situation if you can offset your trading and investing gains with losses like what you can do with CFDs.

When Selling Rental Property, How Do You Stretch Your Profits?

Before you get all excited about selling rental property for juicy profits, it's crucial for you to learn how to slash your capital gains tax first so that you can maximise your hard earned profits. Find out how smart property investors cut down or even eliminate their taxes right now.

What are Taxes You Will Have to Pay When Selling Rental Property?

Capital gains tax is a type of tax that is imposed on the profits that you earn from selling investments such as your shares or rental property. As the name suggests, you won't have to pay a single cent if your rental property was actually sold for a loss.

So how much can you expect to pay? Depending on which country you live in, you can expect to pay anything between 10 to 30%. The good news for some is that there are actually no such taxes for them to worry about. This includes rental property owners who are lucky enough to be in Hong Kong, New Zealand or Singapore.

If you are from the U.S. and hold on to your property for at least 1 year before selling it, your tax rate will range from 10% to 25% depending on your income tax bracket.

However if you sell your rental property after holding it for less than 1 year, your profits are considered as short term capital gains and you will be taxed more heavily at the same rate of your ordinary income tax. This will mean you can expect tax rates of 10% to 35% depending again on what is your taxable income.

How to Cut Down or Even Totally Eliminate Your Capital Gains Tax

Before selling rental property take a closer look at your country's tax laws first to see if you can spot any loopholes that you can exploit.

For example do you know that foreign property investors in the U.K. do not have to pay these taxes and in Russia you can avoid it completely by owning the rental property for at least 3 years before selling.

If you live in the U.S., it's vital to know how the legendary 1031 exchange works so that you can milk it to legally avoid paying any money for your capital gains.

What makes the 1031 exchange so popular with rental property owners is that it allows your to defer paying taxes on your capital gains tax as long as you reinvest the money from the property sale to buy another similar type of property.

In some countries such as the U.S., home owners enjoy lower tax rates than property investors when selling off their homes. If you can find a way to qualify as a home owner instead of a rental property investor, you can enjoy these tax savings as well.

For example in the U.S. you can be considered as a home owner if you lived at least 2 of 5 years before selling off the property. You are also allowed to rent out your property for 14 days or less every year without being taxed.

Avoid Capital Gains Tax When Selling Real Estate

You can cut the capital gains tax out of a real estate sale with the use of Exchange 1031. Exchange 1031 provides that if you are going to use proceeds of the sale of a real estate property to purchase additional property, you can avoid paying the capital gains tax.

The idea is to bolster real estate sales by allowing taxpayers to waive this tax on your property sale if the main purpose of the sale is to purchase another property. This provision gives an incentive for both the buying and selling of property.

Capital gains taxes assessed in the sale of real estate are estimated at around 20%-30%. If a taxpayer is engaged in a "like kind" real estate purchase, the tax reduces his ability to purchase a similar property by effectively cutting the resale value of their property by 20%-30%. This, in turn, will reduce the amount of money that they are likely to spend on a "like kind" purchase of another property.

There, of course, are conditions to deferment of capital gains tax under Exchange 1031.

The value of the property you are purchasing with the proceeds from the sale of your property must be equal to or more than the net profits from the selling of your property.

The full equity realized from the sale of your property must be used to purchase the "replacement" property.

If the replacement property you purchase under an Exchange 1031 provision turns out to be of lesser value than the property you sold, you will be liable to pay an accrued tax. The amount of your tax liability will be determined by the amount the replacement property fell short of the full equity of the sold property.

In other words, the amount of tax liability you incur will depend upon your given situation and the amount of full equity you realized after the sale of your property. Therefore, part of the tax is deferred in this instance, rather than deferring all of the capital gains tax.

The hope of this provision is that such a substantial tax savings will encourage real estate sellers to purchase "replacement" property rather than invest the income from such a sale of real estate into some other venture. It is a good provision for people looking to "buy up" in the housing market.