The fast-paced world of private equity investment, mergers and acquisitions (M&A) and the art of aligning business interests in the perfect deal certainly sounds glamorous. It’s often where Wall Street meets Hollywood and depicts people reaping lots of money in the process! There are so many components in the making of a successful merger, including synergies between the companies’ cultures and employees, financial aspects, logistics, and other important areas. Tax matters (and in our world, state tax matters) are often the last pieces of the puzzle to be brought to the deal process. And while taxes are rarely the things making the headlines in a transaction, they really are an important piece of the overall transaction – both on the state income tax side (which we’ll discuss briefly below) and the sales tax side. And all the things that we discuss regularly here in our blog – nexus, taxability, look-back, exposure and remediation – they all come up in an M&A transaction. And if the exposure is big enough, it can derail a deal. Unfortunately, we’ve seen it happen!
In an acquisition of a company the deal is structured as either the purchase of the stock of a company (an equity deal) or its assets (an asset deal). From an income tax perspective (federal or state), the structure of the deal makes a difference as well.
Regarding sales tax, on the actual purchase itself, there is generally no sales tax due on the consideration paid for a company in equity-based deals. However, there may be sales tax ramifications on the purchase of assets in an asset-based deal. Most states have exemptions for assets transferred as part of an acquisition (for instance an “occasional sale” exemption), but it is always important to understand the transaction itself, including the actual assets transferred, timing of such transfers, etc.