Tax Coordination: Reorgs, Deemed Asset Sales, Parachutes, Comp Caps

Tax structure can shift hundreds of millions of dollars between buyer and seller without changing headline price. The banker's job is to identify the issues and translate them into financial terms; the tax advisors structure the actual paperwork.

Tax-Free Reorganizations Under the Reorganization Provisions

The Internal Revenue Code provides multiple paths for a tax-free stock-for-stock or stock-for-asset combination where shareholders defer (not avoid) gain recognition. The deferral is preserved by taking back the acquirer's stock at a substituted basis; gain is recognized when that stock is later sold.

Four common-law requirements apply to every tax-free reorg:

• Continuity of interest: Target shareholders retain substantial equity in the combined entity; generally at least 40% of the consideration must be acquirer stock
• Continuity of business enterprise: Acquirer continues the target's historic business or uses a significant portion of the target's historic assets
• Valid business purpose: A non-tax business purpose for the transaction, independent of tax avoidance
• Step-transaction doctrine: The substance of integrated steps governs over the form of separate transactions

The Seven Reorganization Types

Triangular variants:

• Forward triangular merger: Target merges into the acquirer's subsidiary; the subsidiary survives
• Reverse triangular merger: The acquirer's subsidiary merges into the target; the target survives

Both triangular variants ringfence target liabilities inside the surviving subsidiary while preserving tax-free treatment, and both are common variants of the statutory merger structure.

Exam Tip: Gotchas

• A "Type A" reorganization allows up to ~60% cash (boot); a "Type B" requires "solely voting stock" (zero cash). Mixing those up is a common trap. The Type A is the most flexible structure; the Type B is the strictest.
• Continuity of interest requires at least ~40% stock consideration. A deal with 30% stock and 70% cash fails the continuity test and loses tax-free treatment.

The Deemed-Asset-Sale Joint Election

A joint buyer-seller election treats a qualified stock purchase as a deemed asset sale for federal tax purposes. The buyer gets the asset step-up; the seller treats the transaction as a deemed asset sale at the target level followed by a liquidation.

Qualified stock purchase (QSP):

• Purchase of at least 80% (by vote and value) of target stock within a 12-month period by a corporate buyer

Eligibility for the election:

• Target must be either (i) a member of a selling consolidated group (a corporate subsidiary), or (ii) an S-corporation
• A freestanding C-corp target is NOT eligible

Tax effect:

• Buyer steps up the target's asset basis to fair-market value
• Buyer amortizes acquired intangibles (including goodwill) over 15 years
• Seller treats the transaction as a deemed asset sale at the target level, followed by a deemed liquidation
• Seller files the election on the relevant election form (Form 8023) and asset-allocation form (Form 8883), generally due by the 15th day of the 9th month after the acquisition

Exam Tip: Gotchas

• The deemed-asset-sale election is the "unicorn" of M&A tax planning. It gives the buyer asset-purchase tax treatment AND the seller a clean stock-purchase exit. But it is ONLY available when the seller is a consolidated subsidiary or an S-corp. A standalone C-corp target cannot make the election.
• The election is JOINT. Buyer and seller both have to sign. A seller that opposes the election can block it.

The Golden-Parachute Excise-Tax Provision

A "parachute payment" is compensation contingent on a change in control, paid to a disqualified individual (an officer, shareholder, or highly compensated individual), where the aggregate present value of all such payments equals or exceeds 3x the individual's base amount.

Base amount:

• The disqualified individual's average annual W-2 compensation over the 5 tax years preceding the change in control

When triggered, the "excess parachute payment" is taxed:

• Excess parachute payment = total payments minus 1x base amount (NOT minus 3x)
• Subject to a 20% federal excise tax at the recipient level
• Non-deductible at the corporate level

Common golden-parachute triggers in sell-side deals:

• Accelerated equity vesting on change of control
• Change-in-control cash bonuses
• Severance arrangements that pay out on a deal close
• Golden-parachute employment agreements (single-trigger or double-trigger)

Private-company cleansing vote:

• A non-public target can avoid the excise-tax consequences if at least 75% of disinterested shareholders approve the parachute payments after full disclosure
• Not available to public-company targets

Exam Tip: Gotchas

• The 20% excise tax applies to the excess parachute payment = total payments minus 1x base amount, NOT minus 3x base amount. Once you cross the 3x trigger, everything over 1x base is taxed and non-deductible. A small over-payment can balloon into a multimillion-dollar tax problem.
• The "3x base amount" is the trigger. The "1x base amount" is the haircut. Two different numbers, two different jobs.

The Executive Compensation Deduction Limit

For a publicly held corporation, no deduction is allowed for compensation in excess of $1 million per year paid to a covered employee.

Covered employees:

• CEO, CFO, and the three other highest-paid named executive officers
• After the American Rescue Plan Act, effective for tax years beginning after 2026, the next five highest-paid employees are added
• "Once covered, always covered": once an individual is a covered employee, they remain so for life with respect to that issuer

Scope:

• The 2017 tax reform legislation eliminated the prior performance-based-compensation exception; all compensation (salary, bonus, equity, deferred comp) counts toward the $1 million cap

Relevance to M&A:

• The seller's compensation arrangements may need to be cleansed or restructured pre-deal to optimize buyer-side deductibility
• Pre-deal restructuring is a common tax-planning step

Exam Tip: Gotchas

• "Once covered, always covered" survives the change in control. A target's covered employees remain covered employees at the post-deal acquirer entity for compensation paid in respect of services to the target.
• The performance-based-compensation exception is GONE. Older study materials may quote the old performance-comp carve-out. It has been repealed; every dollar over $1 million counts.

Recapitalizations as a Pre-Deal Step

Pre-deal recapitalizations can change a target's capital structure to make it more saleable:

• Debt-for-equity swap: Replaces equity with debt; reduces equity needed at closing
• Dividend recap: Borrows against the target to pay a special dividend to shareholders pre-deal
• Stock split: Changes share count; cosmetic but can adjust per-share price for the target audience

A Type E recap is tax-free to the shareholders under the reorganization provisions.

Citation-Error Note in the Outline

The FINRA Series 79 content outline cites two specific tax provisions in its corporate-issues bullet. One of those citations appears to be a typo in the outline. The substantive companion provision in this area is the executive compensation deduction limit (the $1 million cap), which functions alongside the golden-parachute provision as the two big corporate-compensation traps in M&A.

Candidates should focus on the substantive rules:

• The golden-parachute excise-tax provision (3x base amount trigger, 20% excise tax on excess over 1x base amount)
• The executive compensation deduction limit ($1 million cap for covered employees at a publicly held corporation)