New tax law impacts M&A in a way you would not expect

I wanted to give you a heads up in the case you had not already seen this that the new tax law has a hidden issue related to M&A.  Since it is so new there is no Code section to refer to, but Paragraph 1504 of the new law adds to the list of assets that are excluded from the definition of capital assets.


Prior law excluded copyrights, literary, musical, or artistic compositions, letters or memoranda, or similar property from the definition of a capital asset if the asset is held either by the taxpayer who created the property, or a taxpayer for whom the property was produced.  Seldom in M&A do we see these assets being transferred.  The new law however changes this considerably.  The new law adds to this list patents, inventions, model or design, and a secret formula or process which is held by the taxpayer who created the property (or for whom the property was created).

The added items are encountered many time in the sale of a business.  The problem is that these items are intangibles and the value of these items have, historically been included in the portion of the purchase price that is allocated to goodwill.  Goodwill is a capital asset, and therefore subject to capital gains tax, whereas the previously mentioned items are not capital assets if the sale occurs in 2018 or later and must be excluded from goodwill value.  This give us an opportunity and creates some danger.  The opportunity is now we have another category of purchase price we can negotiate, the danger is if we do not separately state the allocation to these assets and they accidentally end up in the goodwill allocation the IRS could, upon audit make a sizable adjustment for the portion of the goodwill that they deem to be the value of these excluded items.  Fair Market Value in a sale between unrelated parties is whatever they agree upon.  If they do not agree then the IRS will have the ability to create a value.  In most cases the value of a business in excess of the value of its tangible personal or real property is considered “goodwill”.  This represents the value of the cash flow in excess of the tangible asset value.  If the business makes its money from the production of a product that has a patent or uses a secret formula then much of this excess value may actually be attributable to the patent or secret formula, which would render that portion of the purchase price subject to ordinary income tax rates and not be treated as capital gains.  If the value of these excluded assets are separately stated and the value is agreed to in the purchase agreement the IRS would have a hard time adjusting it.

The bottom line is if the business possesses any of the excluded assets it would be wise to allocate a negotiated portion of the purchase price to this class of assets.

Let me know if I can help further.

Harold F. Ingersoll, CPA/ABV/CFF, CVA, CM&AA

Partner at Atchley & Associates, LLP

Measuring “fair value” for financial reporting purposes

The balance sheet usually reflects the historic cost of assets and liabilities. But certain items must be reported at “fair value” under U.S. Generally Accepted Accounting Principles (GAAP). Here’s a closer look at what fair value is and which balance sheet accounts it affects.

Fair value vs. fair market value

Accounting Standards Codification (ASC) Topic 820 defines fair value as “the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date.” This definition is similar in many respects to “fair market value,” which is defined in IRS Revenue Ruling 59-60.

The main difference is that fair market value focuses on the universe of hypothetical buyers and sellers. Conversely, FASB uses the term “market participants,” which refers to buyers and sellers in the asset’s or liability’s principal market. The principal market is entity specific and may vary among companies.

Hierarchy of value

Under ASC Topic 820, fair value is most often associated with business combinations and subsequent accounting for goodwill and other intangibles after the deal closes. Other examples of items that are reported at fair value include:

  • Impairment or disposals of long-lived assets,
  • Asset retirement or environmental obligations,
  • Stock compensation, and
  • Certain financial assets and liabilities.

When measuring fair value, the FASB provides a hierarchy of methods that may not necessarily apply to valuations performed for other purposes. GAAP gives top priority to market-based methods, such as quoted prices in active markets for identical assets or liabilities.

When market data isn’t readily available for a specific company, GAAP looks to quoted prices in active markets for similar assets or liabilities — in other words, comparable public stock prices or sales of controlling interests in comparable companies. The least desirable level of inputs under GAAP is unobservable data, such as cash flow or cost estimates prepared by management (which may be used to estimate value under the income or cost approach).

Changes in value

Decreases in the fair value of an asset (or increases in the fair value of a liability) may result from, say, poor company performance, changes in economic conditions and inaccurate estimates made in the past. Companies aren’t allowed to overstate the value of assets (or understate the value of a liability) under GAAP, so changes in fair value may lead to write-offs or restatements.

Outside expertise

Auditors are specifically prohibited from providing valuation services for their public audit clients. Private companies may follow suit to prevent independence issues during audits. So, companies often turn to valuation experts who are independent from their auditors to make fair value estimates — and then their auditors can evaluate whether those estimates appear reasonable. Contact us if you have any questions about fair value, including how it’s estimated or when it applies.

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