When the owner faces the decision of how and when to leave their closely held business one of the key components is how to reduce the level of taxes triggered by the exit. With the changing economic climate, taxes are and continue to be one of the major pieces of the puzzle that needs to be deciphered in order to maximize net proceeds to the business owner. Combined federal and state tax rates can be as high as 55 percent or greater. Therefore, early tax planning is critical in helping to achieve the owner’s financial goals.

When exiting a business there are five major decisions that the business owner will make over the life of his career that can have a profound effect on the amount of taxes he or she will eventually pay when the transaction is executed. The following is a brief discussion on these topics.

Entity Formation

A key indicator in determining the tax ramifications for the buyer and seller is the entity formation. Most companies are structured as either C Corporations, S Corporations, LLCs, Partnerships or Sole Proprietorships. With the advent of the LLC, the C Corporation is becoming somewhat extinct in the closely held business arena. However, a considerable number of C Corporations are still in existence today. These entities require a significant amount of planning in order to achieve the business owner’s financial goals upon liquidation. Selecting or changing to the appropriate entity formation can mean the difference between realizing an effective tax yield in excess of 60 percent or as little as zero.

Deal Structure

Generally, transferring a business is accomplished through either an asset sale or equity/stock sale. Each method proposes advantages and disadvantages to both the buyer and seller and is often subject to much negotiation.

Of paramount importance to the buyer is minimizing unknown liabilities, maximizing step up basis in assets, speeding the write off of assets purchased through various depreciation methods, minimizing the purchase price, stretching out the payment terms and obtaining adequate representations and warranties.

Conversely, the seller is trying to maximize the sales price while reducing the tax burden and accelerate payments from the buyer in order to minimize the financial risk of non-payment. Achieving these goals by both parties can often be a long and arduous process.

Tax Code

The Internal Revenue Code can be your best friend or your worst enemy. With the proper strategy, the code can be used to your advantage by utilizing various techniques to reduce, defer or eliminate taxes altogether and put more dollars in your pocket. Remember, it’s not so much what you get in the transaction that is of key importance, it’s what you keep.

Asset Protection

How would you feel if you were sued for an action in which you had no involvement? All too often asset protection is equated with insurance or other financial products. However, there are times when risks are not insurable or a claim is so high that it exceeds your coverage amounts.

Utilizing various entity types with protective characteristics can provide business owners with the level of protection that is needed from creditors and predatory lawsuits. Would you agree that if you lost everything you had there would be no need for financial, tax or exit planning?

Coordination of Business, Personal & Financial Planning

All too often we see that business owners have taken the initiative to start planning for various aspects of their lives. Life insurance has been acquired. Wills and trusts have been developed. Perhaps a buy sell agreement has been created. Just as often as we see these plans in place we discover that the lack of coordination between them can and will lead to unintended consequences.

Each aspect of a business owner’s personal, business and financial planning goals should be examined and integrated in order to support the owner’s motives and goals. Non-taxable benefits are structured in a manner that will make them taxable. Assets will revert to the unintended recipient. These are but a few of the consequences that are often realized when documents are not coordinated with owners’ goals. The “fire drill” concept should be utilized in order to determine what the actual effect would be to the business and family should one of the documents need to be triggered.

 U.S. Treasury Circular 230 requires that this firm advise you that any tax advice provided was not intended or written to be used, and cannot be used by you, for the purpose of avoiding penalties that the IRS could impose upon you.