Tax & Business Insights

Sales of Businesses: Seller Financing and More

Volume 21 Issue 4 --  July/August 2009

In the last two issues, we have been looking at issues relating to structuring a sale of a business as a stock sale or as an asset sale. In this issue, we will conclude this series with some suggestions for other aspects of the business sale, regardless of whether it is a stock sale or an asset sale.

In that connection, Tax and Business Professionals has developed over a 20-year period a Checklist For Business Purchases or Sales that many have found valuable in formulating their ideas about buying or selling businesses. Please contact us if you would like a copy.

One feature of all business sales agreements is payment provisions. It is important that the payment provisions are consistent with the type of sale — sale of assets or sale of interests in the business entity. In other words, the payment for an entity sale must go to the entity owners, while payment for an asset sale must go to the asset owner (the business entity).

Many small business sales involve seller financing, where the buyer pays a portion of the purchase price at closing and the balance through promissory notes. When the seller provides financing, consideration must be given to the type and amount of security that the seller will receive to secure the future payments. Security can take a variety of forms, including personal guaranties, security interests in the property sold or in other property, or stand-by letters of credit. What matters is making sure that the seller is adequately protected in the event that the buyer defaults. 

Many business sales involve contingent sales prices, where the total amount of the purchase price is tied to some measure of the performance of the business after the sale closes. Such arrangements can create a host of logistical and tax issues.

The manner of computing the amount and timing of the payment of any contingent payment amount is very important and must be structured carefully to coincide with the business’s normal accounting practices. Particularly in asset sales, this may require that the buyer place the purchased assets in a separate entity so that tracking the business’s performance after the sale can be done more easily.

Contingent price arrangements also can create some special and complex tax issues, if the seller plans to use installment reporting. For example, suppose a business is to be sold for a guaranteed price of $1 million, but with an additional $100,000 due each of the next five years if certain performance targets are met. For tax purposes, the sales price for computing any installment gain may be treated as $1.5 million, and, under some potentially complex rules, a portion of the “sales price” may have to be treated as “interest.”

A typical business sale may also include one or more covenants not to compete, under which the seller of the business (and often its principals) will agree not to compete with the buyer for a period of time, say, two years after the sale. Generally this is a good way to protect the buyer.

 Because the buyer will want to amortize the covenant payments, it is critical that the amount of the purchase price allocated to the covenant be clearly stated. Also, any individual seller will usually have to treat the receipt of such payments as self-employment income, rather than as gain from the sale of the property.

It is common for buyers of businesses to agree to hire or retain employees (or principals) of the business to serve as employees or consultants after the sale closes, but it is usually a mistake to include such employment arrangements in the business sale agreement itself. The IRS could argue that the payments for the “services” are in reality additional payments for the business. A far better practice is for the buyer to enter into separate employment agreements with the employees or principals with separate payment provisions not related to the sales agreement.

Particularly when pass-through entities (S corporations, LLCs, and partnerships) are involved in asset sales, it is important at the time of the asset sale to consider whether the entity itself should be liquidated after the sale. Because any gain on the asset sale at the entity level will pass through to the owners, this may create a large amount of basis that the owners will recover only on liquidation of the entity. Depending upon the circumstances, this may result in a large capital loss that may be difficult for the owners to use fully. By liquidating the entity in the same year as the sale, however, that loss can often be used to offset some of the gain on the  asset sale and avoid mismatching the capital gains and losses.

These newsletters touch on only some of the most important issues in structuring the transaction. Due diligence is also required. Our Business Purchase Checklist highlights this and a number of additional considerations. Please contact us if you have any questions.

Copyright 2009
By Tax and Business Professionals, Inc.
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