Federal taxation of corporations, partnerships, estates, and trusts

Federal Taxation: Corporations, Partnerships, Estates & Trusts

Corporate Acquisitions & Reorganizations - Tax planning considerations

Why use a reorganization instead of a taxable transaction

Avoiding the reorganization provisions

Reorganization is a concept that is defined by paragraph A of Section 368(a) (1) of the IRC as being "a statutory merger or consolidation." To elaborate: A statutory merger involves transfer of seller assets and liabilities to the buyer in exchange for the buyer's stock. A statutory consolidation, on the other hand, involves the two companies transferring their assets to a new one in exchange for the stock of that new one. In both cases, the entity that sells is liquidated. This called reorganization

There are three types of reorganizations, and each of them has their specific reasons for being more beneficial than using the taxable transaction.

The three types are the following:

Type "A" Reorganization:

This is primarily of benefit to the seller who can obtain some cash, debt, or preferred stock as part of the purchase price, while still retaining tax deferred status on the price that is paid with the stock. I tis not commonly used when valuable assets are associated with the entity is sold, since one or either of the parties may decide to terminate it when the entity is liquidated. However, in other cases, the seller may prefer this type of reorganization.

2. The Type "B" Reorganization

This type goes under the clauses of paragraph B. Of Section 368(a) (1) of the IRC, namely:

The acquisition by one corporation, in exchange solely for all or a part of its voting stock (or in exchange solely for all or a part of the voting stock of a corporation which is in control of the acquiring corporation), of stock of another corporation if, immediately after the acquisition, the acquiring corporation has control of such other corporation (whether or not such acquiring corporation had control immediately before the acquisition).

The buyer, in short, only exchanges his stock for the stock of the seller with the selling entity, thereby, belonging to the buyer. The seller, too, cannot give stockholders of the entity the option of being paid with cash instead of stock.

People who would prefer this reorganization would do so in the case when the entity is valuable (perhaps due to its contacts) and has to be retained and not liquidated for various reasons.

3. The Type "C" Reorganization

This is regulated by paragraph C. Of Section 368(a) (1) of the IRC which states as follows:

The acquisition by one corporation, in exchange solely for all or a part of its voting stock (or in exchange solely for all or a part of the voting stock of a corporation which is in control of the acquiring corporation), of substantially all of the properties of another corporation, but in determining whether the exchange is solely for stock the assumption by the acquiring corporation of a liability of the other shall be disregarded.

In short, the seller has to transfer at least 90% of his net assets (as well as those critical to the operation of the business) in exchange for the buyer's stock, there must be a clear match of stock, and the entity has to be liquidated. The buyer can pay some cash as part of the transaction, but at least 80% of the assets purchased must be matched for stock. Income tax is paid on the rest.