TARGET IS A C CORPORATION / SEC 338 (H) (10) ELECTION

Acquiring a company that is structured as a C corp is difficult as we all know. Other than a stock purchase (far from ideal from the buyer's perspective), it is often difficult if not impossible to get enough after-tax proceeds in the hands of the seller from an asset sale to make a transaction work. As a result, the Sec 338(h)(10) election is often touted as a solution ("best of both worlds"), but the election is often misunderstood. The [joint] Sec 338 (h[redacted]election can only be used when the target is a U.S. corporate subsidiary of a parent company or when the target is an S-Corp. The election cannot be used when the target is a stand-alone C corp, and thus, it is typically of no value in many lower middle market circumstances. I thought it would be helpful to clarify the use of this election for those working with C corp sellers. Other than allocating valuation to employment agreements, covenants not to compete, and lease terms (none of which are ideal), I haven't seen many practical strategies that have been effective in this context. "Personal goodwill" often comes up in these discussions but I have yet to see a real world transaction where it has been part of the structure but I am interested in the experience of others. Any other tax strategies surrounding the acquisition of a C corp that have worked well for you and would be of value to the search community?



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