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Why Deal Structure Counts: Comparing and Contrasting Asset and Stock Deals
Kenneth Tornheim

The merger and acquisition market is picking up along with the performance of the manufacturing sector. Today’s market is generally more seller-friendly than during the recession, when buyers were primarily trolling for distressed companies. Healthy, profitable companies can typically sell at higher pricing multiples today than five years ago, which means sellers do not necessarily have to concede to their buyers’ every demand.

If you are planning to buy or sell corporate assets or stock, you will need to negotiate more than just the selling price. How you structure the deal can have a major impact on how much cash and potential liabilities you will wind up with after the dust settles.

Asset vs. Stock Sales

A fundamental choice in a corporate deal is whether its stock or its assets will be sold. In a stock sale, all the outstanding shares of stock transfer to the buyer, and the business can continue to operate uninterrupted.

Asset sales are more complex. The buyer purchases all (or most) of the corporation’s assets and liabilities, renegotiates contracts and applies for new licenses, titles and permits.

From a tax and liability perspective, sellers generally prefer a stock sale, while buyers typically prefer an asset sale.

A Seller’s Point of View

With a stock sale, sellers pay tax on the difference between the selling price and their basis in the stock, and at the more favorable long-term capital gains rate as long as they have held the stock for more than 12 months.

But asset sales trigger double taxation for C corporations. The existing corporation which the seller retains and winds down in an asset sale pays tax on the gains from selling assets. The shareholders may also pay tax on cash distributions.

Asset sales also can leave sellers vulnerable to future lawsuits, such as employee discrimination or intellectual property claims. Another consideration is depreciation recapture.  Depreciation recapture is often overlooked even though the tax consequences has the potential to significantly reduce the amount of cash taken away from the sale.

View from the Buy-Side

When buyers purchase stock, assets stay at book value, and existing depreciation schedules apply. Although simpler to execute, stock sales typically result in higher taxable income for the buyer than do asset sales. With a stock sale, the buyer may be vulnerable to future lawsuits and other legal claims.

Asset sales enable the buyer to report assets, such as equipment and furniture, at fair market value. The value allocated to each fixed asset provides a fresh basis for depreciation, thereby lowering taxable income in the future. Under this arrangement, the buyer can avoid certain legal claims associated with the seller’s corporation.

S Corp Alternative

S Corporations have a third option that may serve as a middle ground between asset and stock sales. By electing IRC Section 338, the parties may be eligible to treat a stock sale like an asset sale for federal tax purposes. Although the election will not save sellers any tax, buyers will reap the tax benefits of an asset sale.

To make a Sec. 338 election, the buyer and seller must sign and jointly file Form 8023. Then each must file Form 8883, which allocates the purchase price among seven categories of assets, including cash, inventory and goodwill. Some of these categories — for example, inventory — are taxed as ordinary income. Others are subject to a capital gains tax. So, this allocation has important tax consequences for the seller.

Outside Perspectives

Asset and stock sales are not something owners of manufacturing and distribution companies handle on a daily basis. When you decide to buy or sell, it is critical to structure the deal in the most advantageous way possible from both legal and financial perspectives. Attorneys and CPAs for both the buyer and seller should be intimately involved throughout the process to help you make informed choices. For questions, contact Ken Tornheim at [email protected] or call him at 312.670.7444. Visit to learn more about our Manufacturing & Distribution Group.

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