Taxable Acquisition Transactions

Synopsis

The Internal Revenue Code has many rules that govern the status of transactions and determine whether or not an acquisition is taxable. This panel features experts in taxable acquisitions discussing how various sections of the Code impact tax strategy; particularly § 336 and § 338.

They're joined by IRS Associate Chief Counsel William Alexander, who provides context for the Codes. The lively discussion centers around the evolution of Code interpretation, the future of § 336(e), and strategies, such as "busting the B." Additional statutes discussed include § 304, § 318, § 331, § 332, § 351 and others.





Outline

I. Taxable Acquisitions
    A. What is a Taxable Transaction
    B. What is a Purchase?
    C. Firm and Fixed Plan
    D. Creeping Disposition of Control
    E. What is Typical of Ownership?
    F. Proposed § 336(e) Regulations
    G. Competing Tensions
    H. § 336(e) Analogue to § 338(h)(10)
    I. Real-Life Application of § 336(e)


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The Penn State Dickinson School of Law

Founded in 1834 by Judge John Reed, The Dickinson School of Law is the oldest law school in Pennsylvania and the fifth oldest in the nation. Throughout its history, the law school has trained distinguished graduates who have gone on to become leaders of the bar, of the judiciary, of government, and of business. These alumni include the first secretary of the U.S. Department of Homeland Security, five governors, three U.S. senators, and more than 100 federal, state and county judges and countless prominent lawyers and civic leaders. In 2000, the law school merged with Penn State, one of the country’s premier research universities, and stepped into a new era of legal excellence.

Penn State Dickinson School of Law Center for the Study of Mergers and Acquisitions

The center, headed by Samuel C. Thompson Jr., former director of the UCLA Center for the Study of Mergers and Acquisitions, examines corporate, securities, tax, antitrust, and other legal and economic issues that arise in mergers and acquisitions. An important part of the center’s mission is to sponsor continuing legal education programs addressing these issues.

The Association of the Bar of the City of New York

The years following the Civil War were tumultuous ones for New York City, offering many opportunities to the dishonest. Unsavory politicians and errant members of the bench and bar were among those who took advantage of those troubled times. In December 1869, a letter was circulated among some of the city’s lawyers addressing those improprieties. It called for the creation of a new bar association to “sustain the profession in its proper position in the community, and thereby enable it ... to promote the interests of the public ....” More than 200 lawyers responded by signing a declaration of organization and in 1870 The Association of the Bar of the City of New York was born. The young organization quickly made its presence felt. Among its first activities was a campaign to defeat corrupt politicians and judges at the polls and to establish standards of conduct for those in the legal profession.

The association continues to work at political, legal and social reform, and maintaining high ethical standards for the legal profession. The association also continues to implement innovative means by which the disadvantaged may be helped. Much of this work is accomplished through the Association's more than 160 committees, each charged to consider a specific area of law or the profession.

The association has grown to more than 23,000 members. To serve them, the association strives to move ahead in many areas. The library is the largest member-funded law library in the country, and provides members with a “gateway” to online services, including free use of LexisNexis and WestLaw, while continuing to provide more traditional library services. The Small Law Firm Center, Career Management Program and other benefits are constantly evolving to serve members’ needs. More than 150 continuing legal education programs are presented annually.

The public good remains one of the association’s highest priorities. The Legal Referral Service, jointly sponsored by the association and the New York County Lawyers’ Association, provides an array of services directly aimed at serving the needs of the public. The City Bar Justice Center identifies the most pressing legal concerns of New York’s neediest and uses novel approaches to address them, often involving community participation.





Speakers / Authors:

Photo of William D. Alexander

William Alexander
Internal Revenue Service

William D. Alexander is the Associate Chief Counsel (Corporate) at the Internal Revenue Service. He has been with the IRS Office of Chief Counsel (Corporate) since 1990. Prior to joining the IRS, he was associated with Simpson Thacher & Bartlett in New York. He has a bachelor’s degree from Cornell University, a law degree from Columbia Law School, and an LL.M. in taxation from New York University School of Law.

Photo of Joshua T. Brady

Joshua T. Brady
Bingham McCutchen LLP

Joshua Brady is a partner at Bingham McCutchen LLP, where his practice encompasses a broad range of corporate tax issues involving corporations, partnerships, owners and investors. He advises public and private clients on sophisticated acquisition and disposition structures, including tax-free mergers, tender offers, going-private transactions and cross-border joint ventures.

Mr. Brady also has extensive experience representing taxpayers before the Internal Revenue Service and the Treasury Department on matters involving proposed legislation, regulations, and obtaining IRS private letter rulings.

Prior to entering private practice, Mr. Brady served as a member of the Mergers and Acquisitions Group in the Washington National Tax office of KPMG LLP, where he specialized in corporate tax matters. Most recently he was a partner at Ivins, Phillips & Barker, Chartered. He is admitted to practice in Washington D.C. and Maryland.

Mr. Brady was previously the chair of the Washington D.C. Bar Taxation Section Corporation Tax Committee, where he is a frequent speaker on tax matters. He is an adjunct professor at Georgetown University Law Center, where he teaches corporate tax in the Tax LL.M program, and has served as an adjunct professor at George Mason University School of Law.

Mr. Brady is also a volunteer in the IRS Military Volunteer Income Tax Assistance Program, where he trains military personnel to prepare tax returns for members of the armed services and their families.

Mr. Brady received his J.D. in 1991 from Yale Law School where he served as editor of the Yale Law Journal. He was inducted into the Phi Beta Kappa honor society at Georgetown University, where he earned his A.B. in 1994.

Photo of Michael L. Schler

Michael L. Schler
Cravath, Swaine & Moore LLP

Michael L. Schler is a partner in the Cravath Tax Department. His practice includes corporate tax, corporate finance (including structured finance and securitizations), mergers and acquisitions and international transactions.

Mr. Schler is a former chair of the New York State Bar Association Tax Section, and he remains an active member of the Tax Section Executive Committee. He is a member of the American College of Tax Counsel, the chair of the New York Tax Forum, a trustee and the former president of the American Tax Policy Institute, a past Consultant in tax programs of the American Law Institute, the author of many published tax articles, and a frequent speaker at tax conferences. He is the co-chair of the annual merger and acquisition tax institute co-sponsored by Penn State Dickinson School of Law and the New York City Bar.

He received a B.A., magna cum laude, from Harvard University in 1970, a J.D. from Yale Law School in 1973 and an LL.M. in taxation from New York University in 1979. After a clerkship with Hon. Max Rosenn of the U.S. Court of Appeals for the Third Circuit, he joined Cravath in 1974 and became a partner in 1982.

Photo of Mark J. Silverman

Mark Silverman
Steptoe & Johnson

Mark J. Silverman is a partner in the Washington, D.C., office of Steptoe & Johnson LLP, where he heads Steptoe’s tax practice. Mr. Silverman was named one of the top 10 tax lawyers in Washington, D.C., in 2005 by Legal Times. He is a member of The American Law Institute, Tax Advisory Group for the Study of Subchapter C of the Internal Revenue Code.

Mr. Silverman was formerly an advisor to the Committee on Ways and Means during its consideration of revisions to the corporate tax provisions of the Internal Revenue Code. He is a fellow of the American College of Tax Counsel. Mr. Silverman was formerly a council member of the American Bar Association, Section of Taxation and was formerly chair of the Corporate Tax Committee. He chaired the Tax Section Task Force on Leveraged Buyouts. Mr. Silverman co-authored the Tax Advisors Planning Series on Financially Troubled Businesses, was formerly corporate tax editor of The Journal of Taxation, and is a member of the advisory boards of the NYU Institute on Federal Taxation and BNA Tax Management, Consolidated Returns Tax Report, M&A Tax Report and Corporate Taxation magazines.

Mr. Silverman is on the editorial board of The American Journal of Tax Policy, and is on the board of trustees of the Southern Federal Tax Institute. Mr. Silverman chairs the ALI-ABA annual consolidated returns program. Mr. Silverman was formerly a member of the executive committee of the New York State Bar Association. In addition, he is an adjunct professor of law at Georgetown University Law Center and was formerly attorney-advisor to Judge Samuel B. Sterrett of the U.S. Tax Court.

Mr. Silverman received his LL.M. from New York University Law School in 1971. He graduated from Suffolk University Law School with his J.D. in 1970 and received his B.S. from Indiana University in 1967.

Mr. Silverman is a frequent speaker on tax matters and has published numerous articles on the subject. He is admitted to practice in New York and the District of Columbia.

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Course Code : 776422

Release Date: 2/12/2014 12:00:00 AM
Length: 1hr 1min
Format Type: Video
Recorded Date: 4/25/2013

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