Michael Milazzo

Monday, 20 December 2004 11:44

Optimal tax structure

Thorough planning and careful implementation of numerous interrelated steps lead to successful acquisitions and divestitures. Many factors can make or break the transaction, including tax planning, accounting and business issues.

Buyers need to identify and evaluate acquisition candidates and compare them with other companies in the marketplace. Thorough due diligence is vital. Sellers need to maximize the sales value of the divestiture while reducing risk. Proper valuation analysis and determining fair market value help ensure that all stakeholders' objectives are met.

Whether buying or selling, designing the optimal tax structure is a critical component to the successful completion of an acquisition or divestiture. In general, the acquisition or divestiture can be structured as a stock transaction or as the acquisition of assets that represent the company's trade or business. There are numerous variations of these basic structures, but from a fundamental perspective, either stock or assets are changing hands. Tax planning involves modifying these two basic structures to accomplish the goals of both the buyer and seller.

Frequently, however, the goals of the buyer and seller are at odds. There are many alternatives. For example, if tax-free or partial tax-free treatment is a primary goal of the seller, selling shareholders must retain a significant continuing equity ownership in the combined entity, which has a direct effect on the structuring alternatives available.

From the buyer's perspective, he or she may want to obtain a step-up in the basis of the assets acquired to take advantage of future write-offs, which is generally only available in a taxable transaction. In such a situation, designing the optimal tax structure will play a critical role in the successful completion of the deal.

Source: Michael Milazzo, Skoda, Minotti & Co., (440) 449-6800 or mmilazzo@skodaminotti.com.

Monday, 30 January 2006 09:13

Tax changes

Internal Revenue Code (IRC) Section 199, known as the domestic manufacturing deduction, was added to the American Job Creation Act of 2004 by Congress to promote manufacturing and employment in the United States. Beginning in 2005, qualified business taxpayers will be able to claim a permanent deduction based on their domestic production activities.

Reducing the overall effective tax rate may improve the competitive position of U.S. business taxpayers in the global market place. The deduction may be of particular benefit to Northeast Ohio labor-intensive businesses that have experienced severe competition from overseas manufacturers that have a lower overall cost structure.

Section 199 lowers the overall effective tax rate on U.S. production income by permitting a tax deduction equal to a certain percentage of the lesser of one of the following:

  • A taxpayer’s qualified production activities income (QPAI)

  • Taxable income for the tax year

The term QPAI is defined in the IRC as an amount equal to the excess (if any) of the taxpayer’s domestic production gross receipts (DPGR) for such taxable year, over the sum of the following:

  • The cost of goods sold allocable to such receipts

  • Other deductions, expenses or losses directly allocable to such receipts

  • A ratable portion of other expenses not directly allocable to such receipts

The IRC defines DPGR as gross receipts that are derived from the following activities:

  • Lease, rental, license, sale, exchange or other disposition of qualifying production property that was manufactured in the United States, any qualified film produced by the taxpayer, or electricity, natural gas or potable water produced by the taxpayer in the United States
  • Construction performed in the United States
  • Engineering or architectural services performed in the United States

The deduction is applicable to a significant number of business taxpayers who may not fall under the common definition of manufacturing. Arguably, every taxpayer should consult with a tax adviser to review the new Section 199 provisions to determine if they qualify.

Section 199 is quite broad and complex. Consider the following example.

Company XYZ manufactures plastic lumber. The company recognizes $5,000,000 in QPAI from the sale of plastic lumber in 2005 and $4,000,000 in taxable income. The maximum Section 199 deduction Company XYZ can claim for tax year 2005 is $120,000 (i.e., $4,000,000 — the lesser of QPAI or taxable income times 3 percent, the maximum deduction percentage for 2005). Company XYZ’s effective tax rate declines to 31 percent from 34 percent (assuming no other permanent deductions) because of this new deduction.

The deduction is phased-in over a five-year period, climbing to 6 percent from 2007 to 2009, and reaching 9 percent after 2009.

Under the example above, the permanent deduction would equal $360,000 (i.e., $4,000,000 times 9 percent) when fully phased-in beginning in 2010. The effective tax rate declines to 25 percent, which helps improve the competitive position of many U.S. taxpayers doing business throughout the world.

In an effort to encourage domestic employment, Congress also included an additional limitation on the amount of the permanent deduction on an annual basis. The amount of the deduction for any taxable year may not exceed 50 percent of the W-2 wages of the employer for the taxable year:

Continuing our example above, if the same taxpayer reported $500,000 of W-2 wages in 2005, the deduction would not be affected because the regular calculation results in a lower overall deduction ($120,000 versus $250,000 — $500,000 payroll times 50 percent). However, in 2010, if payroll remained at $500,000, the deduction would be limited to $250,000.

The example illustrates that labor intensive businesses shouldn’t have a problem with this limitation; however, businesses that have automated their operations - at the expense of domestic employment - may be subject to the 50 percent of W-2 wage limitation.

Michael R. Milazzo is a Certified Public Acountant with Skoda, Minotti & Co. Reach him at (440) 449-6800 or michaelmilazzo@skodaminotti.com.