A small business merger can increase the market and financial power of everyone involved, but it takes strategic foresight for such a move to be successful. Taxes are a significant consideration during the planning process because they can financially impact the transaction.
True, equal mergers are relatively rare compared to acquisitions. Many transactions labeled “mergers” are technically acquisitions, where one company takes control of another, usually because of a difference in size, control, or risk (even if that difference is slight). From a financial and tax perspective, it’s essential not to be caught up in the emotional response you may have when considering a small business merger versus an acquisition. Listen to your tax and legal advisors so that they can help you see things from an analytical standpoint.
Consider the following when weighing your options:
Structure: Mergers can often be structured as tax-free reorganizations. This option, under IRC Section 368, can allow the target company to exchange its shares without immediately recognizing gains. On the other hand, an asset purchase allows the buyer to “step up” the basis of acquired assets to their fair market value, which could lead to higher depreciation or amortization deductions. A stock purchase is another structure, which can be favorable for sellers looking to turn the sale price into capital gains over a potentially higher ordinary income rate. Remember that tax laws are constantly changing, particularly after a pivotal administration change, so what makes sense now may not make sense even a few months later.
Differing tax liabilities and credits: Each business has a unique tax profile that should be considered. These include net operating losses (NOLs), tax credits, and capital loss carryforwards. State and local tax implications should also be considered, including sales and transfer tax laws, nexus issues, and other state and local tax treatments. The nature of the other business can also introduce new taxes that a small business hasn’t had to consider before. For instance, perhaps the other business manufactures its products, owns property or equipment you’ve never dealt with, or sells a different type of product or service from yours.
Forensic and post-merger considerations: Tax planning doesn’t end after the merger. It’s critical to consider all aspects of the long game. What is the best timing, for instance? Selling at the end of the year could allow for vital tax deferral opportunities. Plus, consider the dynamics of the new partnership or leadership circle. A new exit plan with a rock-solid buy-sell agreement should be set up from the start. We’ve covered what can happen to businesses when these tools aren’t in place: Disputes, sudden exits, fraud, and even marital issues can throw the future of the new entity into question.
Merging small businesses is a complex process with significant tax implications that can make or break the deal’s success. While the potential benefits of increased market share and financial strength are enticing, careful tax analysis and strategic planning are needed. Feel free to contact us with questions.
