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TIP on Tax: New rules may ease burden for small shareholders in tech acquisitions
 

TIP on Tax: New rules may ease burden for small shareholders in tech acquisitions

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This is the fourth installment of TIP on Tax, a series from Grant Thornton LLP’s Technology Industry Practice (TIP). The series introduces key tax issues for dynamic technology companies. In our ...

This is the fourth installment of TIP on Tax, a series from Grant Thornton LLP’s Technology Industry Practice (TIP). The series introduces key tax issues for dynamic technology companies. In our first article, we explored strategies for managing net operating losses (NOLs) generated in the startup phase. More at: http://gt-us.co/TIPonTax

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    TIP on Tax: New rules may ease burden for small shareholders in tech acquisitions TIP on Tax: New rules may ease burden for small shareholders in tech acquisitions Document Transcript

    • TIP on Tax: New rules may ease burden for small shareholders in tech acquisitions This is the fourth installment of TIP on Tax, a series from Grant Thornton LLP’s Technology Industry Practice (TIP). The series introduces key tax issues for dynamic technology companies. In our first article, we explored strategies for managing net operating losses (NOLs) generated in the startup phase. Our second article offered insights into the effective use of NOLs resulting from acquisitions of loss-making businesses. The third article addressed accounting for NOLs. This article focuses on new rules put out by the IRS that could ease compliance burdens for small shareholders of those loss-making businesses. Introduction The super-hot tech M&A market can be good news for smaller technology companies seeking to be acquired and — perhaps more importantly — for their shareholders. Yet many of those companies remain in a tax loss position following years spent in not-yet-profitable R&D, or trying — often at a loss — to expand business profitability. Section 382 of the Internal Revenue Code generally limits the amount of NOLs a new buyer can use after acquisition, to prevent so-called “loss trafficking.” Beginning in 1986, the IRS and Treasury Department began putting into place an extremely complicated set of rules under section 382 to prevent such loss trafficking. One major fallout from those rules is a high degree of complexity and compliance burden, coupled with a system that might imply an ownership change has occurred (limiting the use of NOLs) when, to a layperson, it doesn’t appear there was a loss trafficking transaction. Fortunately, new IRS regulations are trying to address some of those concerns. Loss limitations, generally When a technology company undergoes an ownership change, its ability to use its NOLs becomes limited. An ownership change occurs when one or more 5% shareholders increase their ownership, in aggregate, by more than 50 percentage points over a three-year period. Congress decided to create this limitation to prevent profitable companies from purchasing those in a loss position purely to use those losses to offset future profits. Greg Fairbanks, Senior Manager and Corporate Tax Specialist, Grant Thornton LLP Section 382 of the Internal Revenue Code generally limits the amount of NOLs a new buyer can use after acquisition, to prevent so-called “loss trafficking.”
    • 2 Aggregation and segregation Under previous rules, direct and indirect small shareholders (those owning less than 5% of the target loss company) were aggregated and treated as a 5% shareholder (called a “public group,” even if these were shareholders of a private company) upon starting a section 382 analysis. The rules then required the creation of an additional public group every time a person who owned 5% or more of the corporation sold stock to small shareholders (i.e., less than 5%). These aggregation and segregation rules caused problems for many shareholders, especially when stock was frequently purchased and sold. And the rules often caused or hastened ownership changes when there was no intent or motive of loss trafficking. In October 2013, the IRS and Treasury Department changed their regulations to address the unintended consequences of these complex rules by creating three exceptions to the general rule of segregation for some transactions involving a loss corporation and 5% shareholders: • Secondary transfer exception • Small redemption exception • General exception to segregation rules for 5% entities and shareholders Secondary transfer exception Under this exception, the segregation rules don’t apply with respect to transfers of loss corporation stock to small shareholders from 5% shareholders or entities. They also wouldn’t apply to transfers of 5% entity stock to small shareholders. Small redemption exception Under this exception, the loss corporation doesn’t segregate into a new direct public group redemptions of stock that are “small” and fall within rules governing this exception. The rules are a mirror of the small issuance exceptions and exempt from segregation up to 10%, by class or by fair market value, of the stock redeemed within a tax year. Suppose a corporation was owned 100% by small shareholders, and the company undertook a tender offer to redeem 10% of the shares. Under the old rules, the 10% would be segregated from the 90% that continue as shareholders. After the redemption, the continuing shareholders own 100%, with a 10% cumulative shift occurring. Under the new rules, no such segregation takes place and the company is treated as owned 100% by small shareholders both immediately before and after the tender offer, resulting in a 0% shift. TIP on Tax: New rules may ease burden for small shareholders in tech acquisitions Example: LossCo is owned 20% by X and 80% by small shareholders aggregated as a public group. On successive dates within a three-year period, X sells its stock to small shareholders, and Y then purchases 20% from the public. Under the old law, X’s sale would create a new public group with 20% ownership of LossCo, and the historic public owning 80%. The purchase by Y comes pro rata from both groups, with the end result being Y owning 20%, historic public 64%, and new public (from X’s sale) 16%. The total ownership shift is 36% because both Y and the new public are new, non-historic shareholders. Under the new law, X’s sale goes back to the historic public and Y buys from such historic public. The end result is that Y owns 20% and the historic public 80%, for a total ownership shift of only 20%.
    • General exception to segregation rules for 5% entities and shareholders The final regulations also provide relief for indirect shifts for first-tier entities that own 5–10% of a corporation’s stock. Prior to the new law, corporations were obligated to look through and track indirect shifts for any entity that owned 5% or more of the corporation’s stock. That means indirect issuances and redemptions could create indirect shifts. This also resulted in a high compliance burden for the corporation, as it was difficult to obtain all the information necessary to do such an analysis. The new law prevents such segregation from taking place for entities that own 10% or less, mitigating some of this complexity. TIP on Tax: New rules may ease burden for small shareholders in tech acquisitions Note: In the previous example, if the LLC owned 15%, the new regulation would not apply and the corporation would be in the same quandary as under prior law. Simpler application These new regulations are meant to make life a little easier for small shareholders and 5% shareholders of loss corporations, and they’re here just in time. For many tech companies that have gone through initial funding and subsequent investment stages, it’s entirely possible to have many different public groups. And even if the company is still privately held, a thriving secondary market for shares can result in administrative burdens for those remaining shareholders in the event of an acquisition. The final rules are effective as of Oct. 22, 2013, and may be permissively applied to dates before then, so long as application of the final rules doesn’t result in an ownership change occurring before Oct. 22. The final regulations may not be applied to any date on or before the date of an ownership change that occurred before Oct. 22. Though improved, these regulations are still complicated, and there are myriad issues to consider. Companies should consider consulting with tax professionals to avoid unexpected surprises. 3 Example: A corporation is owned 10% by a limited liability company (LLC) that has historically issued and redeemed membership interests. However, the LLC, which has historically been reluctant to share private owner information, has no legal obligation to share this information with the corporation. Prior to the new law, the corporation was obligated to track and take into account the effect of all those indirect issuances and redemptions. Practically, this was an almost impossible task that could result in potentially negative results. The new law prevents such segregation events from taking place, thereby obviating the need to obtain such information. Contacts Paul Howell Partner and National Technology Industry Tax Leader T 214.561.2314 E paul.howell@us.gt.com Greg Fairbanks Senior Manager and Corporate Tax Specialist T 202-521-1503 E greg.fairbanks@us.gt.com
    • Tax professional standards statement This document supports Grant Thornton LLP’s marketing of professional services and is not written tax advice directed at the particular facts and circumstances of any person. If you are interested in the subject of this document, we encourage you to contact us or an independent tax adviser to discuss the potential application to your particular situation. Nothing herein shall be construed as imposing a limitation on any person from disclosing the tax treatment or tax structure of any matter addressed herein. To the extent this document may be considered to contain written tax advice, any written advice contained in, forwarded with or attached to this document is not intended by Grant Thornton LLP to be used, and cannot be used, by any person for the purpose of avoiding penalties that may be imposed under the Internal Revenue Code. “Grant Thornton” refers to Grant Thornton LLP, the U.S. member firm of Grant Thornton International Ltd (GTIL). GTIL and the member firms are not a worldwide partnership. Services are delivered by the member firms. GTIL and its member firms are not agents of, and do not obligate, one another and are not liable for one another’s acts or omissions. Please see grantthornton.com for further details. © 2014 Grant Thornton LLP  |  All rights reserved  |  U.S. member firm of Grant Thornton International Ltd Connect with us grantthornton.com @grantthorntonus linkd.in/grantthorntonus