Tax Free Mergers and Reorganizations in California: Continuity of Interest

As noted in an earlier post, some types of acquisitions can be tax free or tax deferred to the sellers. In order to determine whether the tax-free reorganization provisions are available, the type of currency being given to the sellers in exchange for their stock or assets must meet certain requirements.

The “currency” could be in the form of buyer stock, cash, compensation, debt or contingent and deferred payments.  Of that currency, some portion must be in the form of buyer equity. The amount of equity in the deal will drive the rest of the analysis.

A seller must retain a sufficient equity stake in the acquirer in order for a transaction to be treated as a tax-free reorganization. That “stake” is commonly referred to as the “continuity of interest” requirement and according to the IRS, there should be at least 50% continuity to meet the IRS safe harbor.

By “at least 50% continuity,” we mean that at least 50 % of the value of the consideration to be received by the seller will be equity of the buyer.  Fifty percent is considered safe. Case law goes as low as 25% but most tax lawyers will not accept such a low amount as sufficient continuity for the transaction to be tax-free.

Traditionally, the IRS will rule on a transaction if there is at least 50% continuity (e.g. 50% of the consideration is Buyer stock). Escrowed shares tend to count for continuity purposes and relatively recent developments in the law are more tax-friendly towards transactions with less than 50% equity.

Under current law, buyer stock is valued the day immediately before the signing of the definitive acquisition agreement. Fluctuations in value between the day of signing and the day of closing are less of a concern.   Additionally, if there is another property that has a specified value (e.g. $100,000 worth of stock), that specified value will be used.

The percentage of equity in a tax-free merger is important because the shareholders in a tax-free merger realize gain only to the extent of boot.  “Boot” includes non-stock property and securities. Selling shareholders will not recognize taxable gain or pay tax on the value of stock received in a transaction.

They will take a low “exchange” basis in the buyer stock received in the merger and recognize a gain when they eventually sell the buyer stock, but they will not recognize that gain at the time of the merger.

In our next post, I will discuss the different types of tax-free reorganizations.

For more information on mergers and acquisitions, and the tax aspects of purchases and sales of businesses, see RoyseLaw Mergers and AcquisitionsRoyseLaw TaxRecent M&A Transactions, and blog posts at Royse University M&A, and Royse University Tax. Additional materials on mergers and acquisitions can be found at our blog posts at Franchise Tax Board Audits Sale of S Corp in 338(h)(10) TransactionCorporate Reporting of Transactions Affecting BasisM&A Trends and Qualified Small Business Stock. See M&A slides at SlideShare.

Disclaimer: This blog and website are public sources of general information concerning our firm and its lawyers, as well as the information presented. They are intended, but not promised or guaranteed, to be correct, complete, and up-to-date as of the date posted. This blog and website are not intended to be, and are not, sources of legal opinion or advice. The materials, information, and communications on this blog and website do not apply to any particular person, entity, or situation, and do not apply to you or to your specific situation. You will need to consult with an attorney and/or other appropriate professional about your specific situation. Thank you.
Roger Royse

Roger Royse, the founder of the Royse Law Firm, works with companies ranging from newly formed tech startups to publicly traded multinationals in a variety of industries. Roger regularly advises on complex tax structuring, high stakes business negotiations and large international financial transactions. Practicing business and tax law since 1984, Roger’s background includes work with prominent San Francisco Bay area law firms, as well as Milbank, Tweed, Hadley and McCloy in New York City.
Read My Full Bio | Contact Me