Sunday, January 31, 2010

Business Sellers You Will Be Hurt by Impending Capital Gains Tax Increase

Thinking of selling your business? If you have planned it correctly, most of your transaction proceeds should be long term capital gains. Given the current political climate and the redistribution or wealth focus in the White House, capital gains taxes will come under attack. If you are a business owner and are thinking of selling your business within the next 5 years, you may want to move up your exit timeframe.

The reduced 15% tax rate on capital gains, previously scheduled to expire in 2008, has been extended through 2010 as a result of the Tax Reconciliation Act signed into law by President Bush on May 17, 2006. In 2011 these reduced tax rates will revert to the rates in effect before 2003, which were generally 20%.

We believe that this"owner of capital" tax is the most vulnerable for increase. I expect that the long term capital gain tax rate will be moved to an upper limit of 28% by late 2010 for the high end income bracket.

Translation, the business seller is going to take a big hit on his after tax proceeds if his business sale is concluded after November 1, 2010. Let's look at a quick example. A 63 year old man started his business 25 years ago and he sells it for $5 million. All his equipment has depreciated so his basis is approximately $0. Under current tax laws he would have a $5 million capital gain from the sale of his business. His after tax proceeds would total $4,250,000.

If he sells after November 1, 2010, and the tax laws change as I am predicting. The same sale would net him $3,600,000. He lost $650,000 because of this change. If you wait until the actual change is voted into law, there will be a rush to the exits causing an unusually high number of businesses to be for sale. That would further reduce proceeds for the seller because of supply and demand pressures.

The most important tax issue, however, for the business seller continues to be the corporate structure (C Corp, S Corp, or LLC) and whether the business sale is an asset sale or a stock sale. First, unless you are planning on going public or have hundreds of stockholders do not form a C Corp to begin with. Use an S Corp or an LLC. If you currently are a C Corp ask your attorney or tax advisor about converting to an S Corp. If you sell your company within a 10-year period of converting to an S Corp the sale can be taxed as if you were still a C Corp.

Here is what happens when there is an asset sale of a C Corp. The assets that are sold are compared to their depreciated basis and the difference is treated as ordinary income to the C Corp. Any good will is a 100% gain and again is treated as ordinary income. This new found income drives up your corporate tax rate, often to the maximum rate of around 34%. You are not done yet. The corporation pays this tax bill and then there is a distribution of the remaining funds to the shareholders. They are taxed a second time at their long term capital gains rate.

Compare this to a C Corp stock sale. The stock is sold and there is no tax to the corporation. The distribution is made to the shareholders and they pay only their long term capital gain on the change in value over their basis. The difference can be hundreds of thousands of dollars.

This anticipated change to the capital gains tax rates will certainly add to the complexity of selling a business. I cannot stress how important a factor taxes will be in your successful business exit. Here is my summary checklist:

Tax Consideration Checklist Get Good Advice on Original Corporate Structure

If C Corp - Retain Ownership of all Appreciating Assets Outside Corporation - i.e. Real Estate, Patents, Franchise Rights: avoid double taxation

Look at Deal Economics First, Taxes Second

Make Sure Your Transaction Support Team has Deal Experience

Before You Go To Market, Work With Your Team to Understand Deal Structure vs. After Tax Proceeds

You Have the Right to Pursue the Minimum Payment of Taxes - Exercise Your Rights

It Is Never as Effective as an Afterthought

The Pros Can Match Your Desired Outcomes With the Right Tools. Be aggressive in your tax positioning of your sale, both with the buyer in your negotiations and with your filing with the IRS. The various deal structure options are very important issues that need to be understood from a tax impact perspective. Remember that a deal term that is favorable to the buyer for tax treatment is correspondingly unfavorable to the seller. You can bet that the buyer's team of advisors is well versed on this topic. Make sure that your team of advisors is equally well versed or you could end up with a much less than you thought in after tax proceeds.

Dave Kauppi is a Merger and Acquisition Advisor and President of MidMarket Capital, providing business broker and investment banking services to owners in the sale of lower middle market companies. For more information about exit planning and selling a business, click to subscribe to our free newsletter The Exit Strategist

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Selling Your Business - 10 Steps to Maximize Your Selling Price

The purpose of this post is to help you evaluate your company as a strategic acquirer might. From that perspective we will ask you to focus on ten critical areas of value creation.

You started your company 20 years ago “in your garage”, worked many 80 hour weeks, bootstrapped your growth, view your company with the pride of an entrepreneur, and are now considering your exit. The purpose of this article is to help you evaluate your company as a strategic acquirer might. From that perspective we will ask you to focus on ten critical areas of value creation. The benefit to you is that the better your performance in these areas, the greater the selling price of your business. The most likely result is that you will sell at the high range of the multiples normally associated with your industry. For example, during the last 18 months similar companies have sold at an EBITDA multiple of between 4.8 and 5.7 times. Moving your company from the low end to the high end of that range can result in a significant swing in transaction value. If your EBITDA were $2 million, the low price is $9.6 million and the high price is $11.4 million. The Holy Grail in selling your company is when an acquirer throws out the traditional multiples and acquires your company based on strategic post acquisition performance. Below is our list of STRATEGIC VALUE DRIVERS:

1. CUSTOMER DIVERSITY - If too much of your current business is concentrated in too few customers that is perceived as a negative in the acquisition market. The concern is that if the owner exits and the major customers leave, the business could be negatively impacted. On the plus side, if none of your customers accounts for more than 5% of total sales, that is viewed as a real plus. If you find yourself with a customer concentration issue and are planning an exit, start focusing on a program to diversify. A quick fix would be to make an acquisition of a competitor with customer diversity, integrate them and then take your company to market.

2. MANAGEMENT DEPTH - A common thread in privately held businesses is a concentration of responsibility with the owner operator. The buck stops here may be a good slogan for a presidential candidate, but it will not help create value for a business owner. An acquirer will look at the quality of the management staff and employees as a major determinant in acquisition price. A key in preparing for exit is to develop your people so they could run the business after you are gone. You should make the move of assigning your successor a year in advance of your scheduled departure date. If you have no one that you feel has the ability then go hire someone that can do the job. If you have a strong management team in place and you are anticipating an exit, you should try to implement employment contracts, non-competes, and some form of phantom stock or equity participation plan to keep these stars involved through the transition. A strong management team is a valuable asset in the middle market. If you have one, take steps to keep it in place and the market will reward you. If you are weak in that area, the acquisition market will punish you if fail to take the corrective action.

3. CONTRACTUALLY RECURRING REVENUE - All revenue dollars are not created equal. Revenue dollars that are the result of a contract for annual maintenance, annual licensing fees, a recurring retainer fee, technology license, etc. are much more powerful value drivers than new sales revenue, time and materials revenue, or other non-recurring revenue streams. It's all about risk. The higher the risk (future sales) the lower the return. The lower the risk (contracted revenue stream) the higher the return. The most extreme case of this occurs in the software industry where companies are typically sold at a multiple of recurring maintenance revenue. New license sales, historical levels of project work and projected install revenue are virtually eliminated from the valuation formula. The lesson here is that if you can turn a T&M situation into an annual contract, you will be greatly rewarded when it comes time to sell your business.

4. PROPRIETARY PRODUCTS/TECHNOLOGY - This is the area where the valuation rules do not necessarily apply. Strategic acquirers buy other companies to grow. If they believe that a new technology can be acquired and integrated with their superior distribution channel, they may value your company on a post acquisition performance basis. The marketplace rewards effective innovation. On the flip side, however, the market yawns at “me too” commodity type products or services. That business is vulnerable to competition, especially after the owner leaves. Continue to look for ways to innovate in what ever industry you are in. Your innovation should not be limited to product improvements. The marketplace values innovations in distribution systems, collaborative product design process, customer service and other functional areas that can provide a competitive advantage. If you create a technology advantage in your company, think what that could mean to a much larger company.

5. PENETRATION OF BARRIERS TO ENTRY - A wise buyer told me once, “I want to own companies where I have an edge.” He happened to be a buyer of Waste Facilities. All the regulations and approvals required tend to limit competition. In its simplest form, a large restaurant chain buys a small family owned restaurant to acquire a grand fathered liquor license. Owning hard to get permits, zoning, licenses, or regulatory approvals can be worth a great deal to the right buyer. Your company may be able to secure approvals on the local level that a national player may have difficulty obtaining. Selling your product or service to the government can be quite lucrative, but the government market is extremely difficult to penetrate. If your product or service applies and you can break through the barriers, you become a more attractive acquisition candidate. The same holds true of a local marquee account that would be desirable for a larger supplier to crack. One strategy for penetrating these accounts is to ask the buyer to identify the best salesman that calls on him. Go hire that salesman to sell your product to that account.

6. EFFECTIVE USE OF PROFESSIONALS - Reviewed or audited financials by a reputable CPA firm are quite valuable in the eyes of a buyer. Professional financials cast a positive halo on your approach to controlling your business while at the same time reduce the buyer's perception of risk. Bring a good outside attorney into the mix, and the risk drops even more. The thought process is that this attorney has been giving his client good advice for years on protecting the company from litigation. A strong professional team is a great asset in growing your business and in helping you obtain maximum value when you exit.

7. PRODUCT/SALES PIPELINE - Large pharmaceutical companies are well known for buying smaller pharmaceutical companies that have a robust product pipeline for very generous prices. Smaller companies often are more agile and have better R&D efficiency than their high overhead big brothers. In technology, time to market is critical and big companies are constantly evaluating the build versus buy question. Small companies that develop a hot new technology are faced with the decision of developing distribution internally or selling to a larger company with developed channels. A win/win scenario is to sell out at a price, in cash and stock at closing, that rewards the smaller company for what they have today, plus an earn out component tied to product revenues with the new company. The same earn out philosophy can be employed for a selling company that has a large sales pipeline. The acquirer is not anxious to pay for that pipeline at closing and the seller wants to delay his company's sale until the next big deal. An intelligently structured sales contract with a contingent payment based on closing accounts in the pipeline is a great solution.

8. PRODUCT DIVERSITY - A smaller company that has a quality portfolio of products but may lack distribution can become a valuable asset in the hands of the strategic buyer. A narrow product set, however, increases risk and drives down value. If you are planning to exit, review your product portfolio. Are there obvious gaps that could be filled quickly? How about buying a small company with a few complementary products? What about buying a product line from a company? Can you lock up distribution rights for North America for the best product from a Finnish manufacturer? Have your customers been asking you to develop a new product? Spread out your product risk as a value enhancing strategy.

9. INDUSTRY EXPERTISE AND EXPOSURE - This activity is often overlooked because it is difficult to measure its direct returns. We find that it is a value driver when it is time to sell the business. To the extent possible, encourage your staff to publish articles in industry magazines and newsletters. Get exposure as a presenter at industry events. Encourage local and industry reporters to use you as the voice of authority with industry issues. Your company is viewed in a more positive light, you may get more business referrals, and a buyer from your industry will remember you favorably and is more likely to consider you as an acquisition candidate.

10. WRITTEN GROWTH PLAN - If I could get you to do one thing that will cost you nothing but brain power and your time it would be to capture the opportunities available to your company in a two to five page written growth plan. Even if you are putting your company on the market tomorrow, it is not too late to identify all the opportunities your company has created. For any company, in any stage, this is a valuable living document to guide you strategically. Small companies with limited staff are forced to put out fires and live tactically. A growth plan helps create a process that will allow you to break big strategic plans into executable tactical activities. What additional markets could we pursue? What additional products could we deliver to our same customers? What segments of my current market offer the most growth potential? Where are the best margins in our customer set and product set? Can we expand in those areas? Can we repurpose our products for different markets? Are we getting the best return on our intellectual property? Can we license our technology? Do strategic alliances or cross marketing agreements make sense? Capturing this on paper as part of your exit plan will increase the likelihood that an acquiring company will view you more as a strategic acquisition. It demonstrates that you have identified a path for growth and it may identify opportunities that the buyer had not considered. Those opportunities can add to the purchase price.

The bottom line when it comes to unlocking the market value of your privately held company is not limited to the bottom line. Profitability is hugely important, but the factors above can result in significant premiums over traditional valuation approaches. When one buys or sells Microsoft stock, there is no room for interpretation about the market price. The market for privately held businesses is imprecise and illiquid. There is plenty of room for interpretation and the result for the best interpretation by the marketplace is a big pay off when you decide to sell.

Dave Kauppi is a Merger and Acquisition Advisor and President of MidMarket Capital, providing business broker and investment banking services to owners in the sale of lower middle market companies. For more information about exit planning and selling a business, click to subscribe to our free newsletter The Exit Strategist

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Selecting a Business Broker - Look Out for these Red Flags

Selecting a business broker or an M&A firm to represent your company for sale can be a confusing and difficult process. This post exposes some of the red flags to watch for as you select the firm to represent you in your business sale.

Last week I got a call from a business owner who had decided to sell his business. He and his partners were beginning the beauty contest phase of selecting a firm to represent them in the sale. His partners had begun discussions with a merger and acquisition advisory firm. He had followed up with this firm prior to calling us and had questioned them on several issues. He shared his findings with me and asked my opinion. Generally I subscribe to my old IBM training and will not disparage a competitor, however, some of the answers were alarming to me so I elected not to withhold my opinions.

The first red flag was that this competitor required a large up-front engagement fee. I certainly have no problem with Merrill Lynch or Goldman Sachs charging their up front fees to their fortune 1000 clients. These firms are a proven commodity with a proven process. Their clients feel confident that a liquidity event will result from their work. A monthly fee is a more accommodating approach for smaller clients whose cash flow would be strained by a large up-front payment.

We have had many prospective clients approach us after unfortunate experiences with these big up-front fees. In one recent case, we were brought into a holding company who had acquired one of our sell side clients. Another division had engaged an M&A firm to sell one of their subsidiaries. After a $40,000 up-front payment and over four months, not one prospect had been contacted. Another common result for clients of these up-front fee firms is a beautiful, bound, 40-page book of boilerplate compiled by a junior level analyst. Unless this is accompanied by a concerted sales and marketing effort, this book will become a very expensive coffee table book.

Think of evaluating the performance of your M&A firm like you were evaluating a salesman selling your company's product. If you are not getting status update reports or pipeline reports indicating who has been contacted and what progress was made, you are not managing your business sales process.

Another red flag we see with these up-front fee firms is a 4 or 5-year exclusivity period. Our firm will not take an engagement unless it is exclusive, however, locking a seller in for 5 years is unconscionable. Here's what that says to me. Some of the less honorable firms are marketing machines who target business owners with their 6 letters per year mailing campaigns. These campaigns are designed to get the business owners to their beautifully orchestrated seminars for potential business sellers. The presenters are very polished speakers. I doubt that these wonderful presenters have actually closed a business sale.

Their objective is to lock up 3 or 4 businesses per seminar with a $40,000 book and to put them into their growing inventory of 5-year exclusive engagements. These businesses are not actively sold, but are passively presented in mass mailers and on Internet sites. I can't tell you the number of times we have been contacted by firms that are unfortunately the victims of this approach.

I am just getting warmed up. Let me expose, forgive my French, the biggest load of crap presented at these seminars. “We have foreign buyers.” Some unscrupulous moron in our industry discovered that this phrase was particularly alluring to unsuspecting business sellers. If your business selling price is less than $30 million, you will not be a candidate for foreign buyers.

Ask any law firm that does transactions. Check with BV Resources, the number one database of completed transactions. You will find it a rare occurrence to have foreign buyers at the small end of the market. The transaction costs are just too high to make a small purchase economically viable. The buyer will have to fly teams of people with potential language barriers, new sets of laws, new accountants and attorneys, etc.

What is the allure of these alleged foreign buyers? Are they going to pay you a huge premium over a U.S. buyer? Are they going to be duped into a poor investment decision for your benefit? Pleasssssse! If you are a smaller business, you are not a target for a foreign buyer. If you are presented with this line, run for the exits.

Another classic red flag is when a potential business seller asks to talk to references and the business broker tells his prospective client, “That's going to be tough. They are sitting on a tropical island drinking umbrella drinks.” Come on. Our firm is in regular contact with the majority of our sellers. They are very valuable to us as references in our business development efforts.

We absolutely protect them from frivolous contact, however. Our firm is contacted by over fifty potential sellers annually. We have to go pretty far down the mutual discovery process before we connect a potential client with our references. If we have not pre-qualified a prospect, we are not going to waste our references' time. However, if the major issues on fees, qualifications, approach and chemistry have been satisfied, do not hire an M&A firm without talking to two references.

The final issue I would like to discuss, I would not call an official red flag, but maybe a “nice to have.” Have you sold any companies in my industry? Sometimes, your business is unique and there has not been much M&A activity and you will have to weigh other factors more heavily. The advantages in using business broker or merger and acquisition firm that has industry experience are that it both speeds up the sale process and it increases the likelihood of a completed transaction.

An M&A firm that has your industry experience will already have their database of potential buyers established. They know the right contact person and these prospects know them and actually take their calls. This alone can reduce the sales cycle by as much as 90 days. Another big advantage of industry experience is your advisor will understand valuation multiples and deal structures unique to your industry. That can be invaluable when the buyer is attempting to grind down your selling price. Industry credibility is very important when your advisor gets the CEO of a targeted buyer on the phone and has exactly 30 seconds to establish buyer interest. It really helps if you speak his language. Our clients in information technology and healthcare have found industry specialization to be of significant value.

Our industry is misunderstood at the lower end of the market. The fortune 1000 companies would not consider a capital event without engaging an investment banking firm. Smaller companies seeking a sale need the same kind of services, but with a fee structure that is more size appropriate.

When I see a couple of firms with a powerful marketing reach engaging in practices that hurt our industry, it ticks me off. Most of the firms that service the lower end of the market are hardworking, honorable people seeking to provide excellent value. Many of these firms are members of the International Business Brokers Association, IBBA. This organization sets standards for business practices and ethical behavior. They also have established an industry certification, the CBI, Certified Business Intermediary.

So as you consider the company you want to engage to sell your business, he is what you look for:

1. No big up-front fees, but monthly fees.
2. No promises of foreign buyers for companies under $30 million.
3. A period of exclusivity from 12 to 24 months, not 5 years.
4. A firm that actively sells your company using direct calling into targeted buyers, and not simply posting on business for sale Web Sites and mass mailings.
5. A firm that tracks and reports their sales progress to you bi-weekly with a status or pipeline report.
6. A firm that is a member of a professional association like IBBA or M&A Source or a local or regional business broker network like MBBI.
7. A firm that at the appropriate time will introduce you telephonically to two of their reference clients whose business they successfully sold.
8. A firm that has a principal that has passed their industry testing and has been issued a CBI designation.
9. An Advisory firm that has experience selling companies in your industry and understands who the targeted buyers are, the right contact, and the industry nomenclature. Finally they should understand your industry's unique valuation metrics and deal structures.

This is the most important contractor or vendor you will ever hire for your business. Your economic future depends on the success of this engagement. Think of other major purchase decisions you have made for your company. Be every bit as rigorous in making your selection of an M&A advisor.

Dave Kauppi is a Merger and Acquisition Advisor and President of MidMarket Capital, providing business broker and investment banking services to owners in the sale of lower middle market companies. For more information about exit planning and selling a business, click to subscribe to our free newsletter The Exit Strategist

Ten Signs That It is Time to Sell the Family Business

A Business Owners Toughest Decision is deciding to sell. In many cases he ignores some market dynamics that foretell difficult times ahead. Those difficult times often result in a significant drop in the value of the business. This post will help you identify some of those signs.

For the past 20 years you have built your business. Your company has become part of your identity. Even when you are not at work, you are working, thinking, planning. You never stop. If you sell you are leaving behind much more than a job. In this article we will discuss some signs that might indicate that it is time to exit your business.

1. Late in your working life you are faced with a major capital requirement in order for your company to maintain its competitive position.
2. A large competitor is taking market share away from you at an accelerating pace.
3. Your legacy systems, production capabilities, or competitive advantage has been “leap frogged” by a smaller, nimble, entrepreneurial firm.
4. A major company in a related industry just acquired a direct competitor.
5. Your fire to compete at your top level is not burning as brightly as it once did.
6. Your kids are not interested or are not capable of running the business.
7. You have had a health scare and have decided to smell the flowers.
8. You have lost a major client of a key employee.
9. The market is hot and you decide to take some chips off the table for asset diversification.
10. You exit in an orderly fashion and from a position of strength as you intended.

Lets look at these in a little more detail.

Major Capital Investment Required - You are supposed to be diversifying your assets, not concentrating them even further. Think about a simple payback analysis. Does that extend beyond your retirement date? You want to be able to defend that investment with the energy and intensity you devoted when you were originally growing your business. Maybe it is time to bring in an equity partner with smart money, an industry buyer with the management depth, infrastructure, or distribution network to protect that investment. You might consider selling not with a three year employment contract. Let the new owner defend the required capital investment.

A Large Competitor is Taking Market Share Away from You - Believe me, the news is not going to get better. As an investor you would probably sell the stock in a company you owned if Microsoft or GE decided to assume a presence in that market. Business owners often struggle with objectivity when a similar event takes place in their own company's industry.

Your Legacy Systems have been “Leap Frogged” by a Nimble Entrepreneurial Firm - This happens all the time and can cause an erosion of your customer base. Your inertia will sustain you for a while, but eventually you will begin to experience customer defections. You can either rewrite, acquire or sell. If you decide to sell, do so before losing too many clients.

A giant company in a related industry just acquired one of your major competitors. Watch out, they did not make this acquisition to maintain status quo. They want to grow their market share. They will be coming after your clients. The good news is that as a defensive measure, one or more of their competitors will be compelled to make a similar acquisition. It is best to be aggressively ahead of the curve and get acquired while the market is hot and prices are being bid upwards.

Your interest and competitive fire is eroding. Let's face it, if you are not growing, you most likely are contracting. Your competition was tough when you were on your game. Your family's net worth is under attack if you are no longer fully committed.

Your original plan was to turn your business over to your children. They may not be interested or capable of competing at this level. Perhaps the greatest legacy you can leave to your kids is to convert your company into a diversified portfolio of financial assets that are far less risky than turning the company over to inexperienced managers.

You have a health scare and all of a sudden you start thinking of all the sacrifices you made and all the things you want to do before it is too late. Your list of goals is immediately changed from financial in nature to family, friends, travel, experiences, philanthropy, etc. You might want to listen to your heart this time.

You have lost a major client or a key employee. That can be a real blow to a business. The owner, by nature, is optimistic and believes that the lost business will soon be replaced and does not ratchet down the expense level to match this new sales level. If he does cut, inevitably, it is not fast enough and not deep enough. Maybe it is time to seek a buyer that could replace that business before your company's value is severely impaired as your profits erode.

The market is hot and you decide to take some chips off the table for diversification. You may be thinking of retiring in four years, but a consolidation is occurring in your industry and valuations are up 20%. Sell at the top and sign a four year employment or consulting contract. The odds are that if you exit on your original schedule, valuations will have settled back down to the norm.

You ring the bell and exit on your own terms, from a position of strength, exactly like you planned. You are well aware of the competitive forces in the market and the relative strength or weakness in valuation multiples. You have prepared your business to be attractive to a strategic buyer. Everything is going your way. You hire a good M&A advisory firm to present you confidentially to the most likely buyers. Several recognize your value and show interest. You are able to get a little competitive bidding going. Your transaction value rises and your terms improve. You pull the trigger and complete the sale. Mission Accomplished.

Dave Kauppi is a Merger and Acquisition Advisor and President of MidMarket Capital, providing business broker and investment banking services to owners in the sale of lower middle market companies. For more information about exit planning and selling a business, click to subscribe to our free newsletter The Exit Strategist

Saturday, January 16, 2010

Selling a C Corporation - A Tool to Minimize the Tax Bite

Often times a seller of a C Corporation discovers at the eleventh hour of his business sale, the punishing bite that taxes take out of his transaction proceeds. Trying to change the deal at this point my cause the deal to blow up. This post discusses the importance of advanced planning and deal structure. We also explore a creative tool to both reduce and delay the payment of taxes.

I have previously written articles discussing various aspects of transaction structures to minimize taxes. As a result, I am often contacted by a panicked seller that is a week from closing his business sale as he looks in disbelief at his accountant's spreadsheet detailing the tax burden of his impending sale. By the time he realizes this tremendously unfavorable tax situation, it is far too late in the process to change the deal.

If you are the owner of a C Corp and are planning on selling your company, you must understand the ramifications of the stock sale versus the asset sale. Here is what happens when there is an asset sale of a C Corp. The assets that are sold are compared to their depreciated basis and the difference is treated as ordinary income to the C Corp. Any good will is a 100% gain and again is treated as ordinary income. This new found income drives up your corporate tax rate, often to the maximum rate of around 35%. This tax must be paid as the result of the asset sale.

You are not done yet. The corporation pays this tax bill and then there is a distribution of the remaining funds to the shareholders. They are taxed a second time at their personal long term capital gains rate. This is often called the double taxation issue of a C Corp asset sale.

Compare this to a C Corp stock sale. The stock is sold and there is no tax to the corporation. The distribution is made to the shareholders and they pay only their long term capital gain on the change in value over their basis in the stock. The difference can be hundreds of thousands of dollars and for larger transactions, millions of dollars.

Most corporate buyers have it drilled into their heads by their attorneys that they should not agree to a stock sale because the buyer will inherit all of the assets and all of the liabilities of the selling corporation, even the scary hidden liabilities. A second reason buyers want to do an asset acquisition is that they get to take a step up in basis of all the assets and can depreciate them at a higher amount than inheriting those assets under their current depreciation schedule.

Early in the process with the seller, communicate to them your desire for a stock sale because of the punishing double taxation you will face with an asset sale. You could give him two purchase prices, one for a stock sale and a much higher one (30% higher) for an asset sale. If you try to introduce this concept late in the process, you will find it very difficult to recover.

We are always looking for ways for our business sellers to maximize their transaction proceeds while keeping as much as possible through the use of intelligent tax planning and deal structure. Sometimes our sellers are just not able to convince the large company buyer to agree to a stock acquisition that is more tax favorable to the seller. We wanted to come up with some solutions that would be more tax favorable.

So I began my quest for a better solution. After several dozen phone calls to my professional network, I was directed to a provider of a creative new application of a vehicle called an Installment Sale. They call this The Installment Sale with Guaranteed Annuity Payments. This vehicle has passed the scrutiny of the IRS and the Tax Court. It is not a way to avoid the payment of taxes, rather a method of reducing and deferring them with substantial economic benefit to the owner and the owner's beneficiaries. I asked Chris Princis from Brook Hollow Financial to explain this unique way to both reduce and defer capital gains taxes that are the result of a C Corporation asset sale.

Large Tax Bill Due upon Sale

Capital Gains, Depreciation Recapture and even Income taxes may be levied against the proceeds of the sale of the business. Depending on the initial amount invested and how much the business has grown, these taxes can consume much of the sale price. Currently the maximum Federal Corporate Tax stands at 35%. Most states have a Corporate Tax rate of 5% as well, with the total amount often nearing 40% of the business sale proceeds. Remember, a C Corp asset sale is treated as ordinary income to a corporation. Currently the Federal Capital Gains Tax stands at 15% for the individual. Most states have a Capital Gains Tax as well, with the total amount often exceeding 20% of the gain. We believe that these rates will have near term upward pressure caused by the need for the Treasury Department to make up for the $800 billion shortfall that will result from the repeal of the Alternative Minimum Tax.

Loss of Regular Income

When a business is sold, the owner's cash flow stops as well. Therefore, the amount of money that was being produced needs to be replaced. Without this regular income, former business owners are left with a significant gap in what they receive each month and must alter any plans or budgets accordingly.

What to do with the Proceeds

Another major challenge that a business owner will face is what to do with the proceeds of any sale. There are many ways to put this money to work for you, but this often means accepting significant risk and investing in markets without much experience. Alternatively, sellers might mitigate risk, but only at the cost of getting a very low return. Either way, inadequate returns and potential loss of capital are serious risk factors that must be considered.

Need to Mitigate Future Risk

Among the challenges presented by investing the new capital is that there may be different goals for the individual at this stage of his or her career. If the sale is prompted by a desire to move away from daily management and responsibility, or simply to cash out at a good time in the market, the owner may want to revisit his or her goals. A review of the financial needs and expectations may reveal a requirement for total investment certainty. While these alternatives do exist, most do little to provide a reasonable return and can make planning more difficult with these limited resources. The need and desire to mitigate future risk should play an important role in any decisions about your investment plans.

The Traditional Business Sale - Cash Transaction

The cash transaction option is fairly straightforward. The seller is paid cash from the buyer. After any loans or other debts are paid, the funds are then made available to the seller. At this point, the seller must pay federal and state taxes on the proceeds, and then the remaining balance is left to invest. This drastically reduces the principle and lowers any future returns. The stock market and other liquid investments carry very significant market risk, and the individual could lose some or all of the money. On the other hand, the individual could place the money into a guaranteed investment such as a certificate of deposit, but the returns will drastically lag other possible alternatives. Investing on your own requires some planning and active management of the portfolio, but more importantly, it may provide for unpredictable future income necessary to manage and care for an investor and his or her family.

Another Approach - The Installment Sale

The Installment Sale is a mechanism that has been available since the 1930's. In this type of transaction, the buyer of a business agrees to pay the seller a certain amount of money over a fixed period of time. Under this approach, the IRS has ruled that only the amount of distribution in any given year is subject to any applicable taxes in proportion to the total due. The problem here had been reliance upon the buyer to continue to make the payments promised. Often times the business is run poorly and is no longer producing enough revenue to make the promised payments. There has always been recourse in these transactions, so that if the buyer did not live up to his obligation, the seller could foreclose and reclaim ownership of the business. However, this offered little protection if the business has not been run properly or the value lowers for other reasons, since the original seller would now reclaim a much less valuable business.

An Improved Approach - The Installment Sale with Guaranteed Annuity Payments

There is a way to ensure that these types of transactions could still be utilized while eliminating the possibility of default. The transaction takes place as described above, only there is a second transaction that occurs simultaneously. At the time of closing, the buyer purchases an annuity from an A+ rated Annuity company. Therefore the seller receives a guarantee that regardless of the future strength of the business, the payments will be made as agreed upon, and all of the tax deferral benefits remain intact.

The benefits of this type of transaction are as follows:

· Seller is able to sell the business without future risk
· Tax-deferral creates much greater taxable equivalent return
· Flexible planning allows for specific plans tailored to individual needs
· Stabilizes future income with certainty for life
· Much larger total benefit over time - guaranteed
· Payments can continue to pass on to heirs in the event of death
· Eliminates need for expensive life insurance
· Requires no management responsibility
· There are no direct or on-going fees
· Expedited closing

A simple way to look at this plan is to compare it to an IRA. With the IRA your investments get to grow on a tax deferred basis for many years and you get the benefit of earning investment returns on the amount not paid in tax. When you draw the funds out of the account, you are then taxed at your then current rate. With the guaranteed annuity installment sale, you may elect to take a portion of the business sale proceeds at close and pay all of the appropriate taxes on that portion.

You then could structure the guaranteed annuity to begin paying you a certain amount starting in 5 years for another 20 years. The investment would be allowed to grow tax deferred for that 5-year period. When you started taking distributions, you would be taxed at the rate you would have been from the original sale transaction. The important thing to remember here is that instead of receiving the entire distribution at closing and paying a huge tax bill up front, you are taking 1/20th of the distribution each year and paying 1/20th of the tax. The remaining portion of the deferred tax stays invested and earns income over the 20-year period. This substantially increases your return on the deferred portion of your sale proceeds.

This mechanism is a great way to secure your proceeds with guaranteed payouts, no ongoing involvement or management responsibility, and beneficial tax treatment. This will ensure the highest possible taxable equivalent return when compared to any fixed-income, guaranteed investment. Remember in a business sale the important number is how much you get to keep.

Dave Kauppi is a Merger and Acquisition Advisor and President of MidMarket Capital, providing business broker and investment banking services to owners in the sale of lower middle market companies. For more information about exit planning and selling a business, click to subscribe to our free newsletter The Exit Strategist

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Tuesday, January 05, 2010

10 Keys to a Successful Business Exit Webinar

Webinar/Interview/Presentation entitled 10 Keys to a Successful Business Exit

Dave Kauppi is a Merger and Acquisition Advisor and President of MidMarket Capital, providing business broker and investment banking services to owners in the sale of lower middle market companies. For more information about exit planning and selling a business, click to subscribe to our free newsletter The Exit Strategist