Basic Tax Rules for Mergers and Acquisitions


The presenters in this course focus on the tax rules as they apply to merger and acquisition transactions. They discuss in detail acquisitions, stock versus asset purchases, contingencies, reorganizations, spinoffs, joint ventures, distributions and international transactions.


I. Taxable Acquisitions
        A. Acquiring a Parent Corporation
        B. Acquiring a Subsidiary: Two Basic Choices
        C. Acquiring a Subsidiary: Basic § 338(h)(10) Rules
II. Stock, Assets and Purchase Price
        A. Stock vs. Assets
        B. Allocation of Purchase Price Among Assets
III. Contingent Liabilities and Contingent Purchase Price
        A. Contingent Liabilities
        B. Contingent Purchase Price
IV. Amortization of Section 197 Assets
V. Reorganizations
        A. Tax-Free Reorganizations: General Requirements
        B. “A” Reorganizations
        C. Section 368(a)(2)(D) and “B” Reorganizations
        D. Section 368(a)(2)(E)
        E. Section 368(a)(2)(E) and “C” Reorganizations
        F. Section 351 Transactions
        G. Advantages and Disadvantages of Reorganizations
VI. Spin-Offs
        A. Basic Requirements (1)
        B. Basic Requirements (2)
        C. Sections 355(d) and 355(e)
        D. More on Section 355(e)
        E. More on Section 355(e), Continued
VII. Section 382
VIII. Consolidated Returns and Joint Ventures
        A. Consolidated Returns
        B. Joint Ventures
IX. Section 704 Allocations
X. Distributions and International Transactions
        A. Distributions
        B. International Transactions

Content Provided

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 Jeffrey H. Kahn

Jeffrey Kahn
The Penn State Dickinson School of Law

Professor Jeffrey Kahn’s scholarship focuses on the federal tax area. He has published articles in law reviews and tax journals, including pieces on tax policy and horizontal equity, the taxation of gifts, the charitable contribution deduction, the tax expenditure budget and personal deductions, and the tax consequences to a reality television candidate. He is also the co-author of a leading income tax student treatise and the nutshell on the taxation of S corporations. His work in progress includes an article on the taxation of insurance proceeds and a student treatise on corporate taxation.

Professor Kahn attended Duke University, where he double-majored in classical studies and Latin. He then attended the University of Michigan Law School. He graduated, cum laude, in 1997 and went to work for three years as a tax associate in the Chicago office of McDermott, Will & Emery. Prior to joining the faculty at Penn State’s Dickinson School of Law School in 2006, Professor Kahn was an associate professor at Santa Clara University School of Law. He has been a visiting professor at Vanderbilt University Law School, Stanford Law School, University of California Hastings College of Law and University of North Carolina at Chapel Hill School of Law.

Photo of Michael L. Schler

Michael Schler
Cravath, Swaine & Moore LLP

Michael L. Schler is a tax partner in the New York City law firm of Cravath, Swaine & Moore LLP. He practices in the areas of mergers & acquisitions, corporate tax, consolidated returns, financial products, and asset-backed securitization. He joined the firm in 1974 and was elected a partner in 1982.

Mr. Schler has long been active in the New York State Bar Association Tax Section. He was chair from 1994 to 1995, and has been a member of the Executive Committee since 1985. Mr. Schler is a trustee and vice president of the American Tax Policy Institute. He is also the chair of the New York Tax Forum. He is a member of the American College of Tax Counsel. He has been a consultant to the American Law Institute Federal Income Tax Project on Integration of the Individual and Corporate Income Taxes, and to the Institute’s Project on Taxation of Private Business Enterprises. Mr. Schler is the author of numerous published articles, including recent articles on consolidated returns, spin-offs, section 1032, and the dividend exclusion.

Prior to joining Cravath, Mr. Schler was a clerk for the Honorable Max Rosenn of the U.S. Court of Appeals for the Third Circuit. He graduated magna cum laude from Harvard University with an A.B. in 1970, and earned his J.D. from Yale Law School in 1973. He also earned an LL.M. in taxation from New York University in 1979.

Photo of Samuel C. Thompson, Jr.

Samuel C. Thompson Jr.
The Penn State Dickinson School of Law

Samuel C. Thompson Jr. joined Penn State’s Dickinson School of Law in July 2007 as a professor of law and the founder and director of Penn State’s Center for the Study of Mergers and Acquisitions. The Center examines corporate, securities, tax, antitrust, and other legal and economic issues that arise in mergers and acquisitions and hosts continuing legal education programs addressing these issues.

Professor Thompson, who previously was a professor of law at the University of California Los Angeles School of Law and director of the UCLA Law Center for the Study of Mergers and Acquisitions, is a highly regarded scholar of corporate and international tax, corporate governance, and antitrust and is the author of 16 books and more than 75 articles. His teaching interests focus on the corporate, securities, tax, and antitrust aspects of mergers and acquisitions as well as international tax, investment banking, taxation of business entities, and economic growth policy.

Throughout his distinguished career, Professor Thompson has held a number of notable positions, such as head of the tax department of Schiff Hardin & Waite in Chicago; tax policy advisor, on behalf of the U.S. Treasury Tax Assistance Office, to the South African Ministry of Finance in Pretoria, South Africa; Attorney Fellow in the Securities and Exchange Commission’s Merger and Acquisitions Office; consultant on merger and acquisition issues to the Federal Trade Commission; and professor in residence at the European Commission’s Antitrust Merger Taskforce in Brussels. On several occasions he has testified about tax policy before the U.S. House of Representatives Committee on Ways and Means and the House Judiciary Committee. He formerly served as dean of the University of Miami School of Law and has been a professor and distinguished visiting professor at the University of Virginia School of Law and the Jacquin D. Bierman Visiting Professor of Taxation at Yale Law School.

As a law student, Professor Thompson worked on a university-sponsored civil rights project near Leland, Mississippi, before beginning service as an officer in the United States Marine Corps, where he rose to captain and received the Navy Commendation Medal for service in Vietnam. He played varsity football at his undergraduate school, West Chester University.


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Course Code : 776210
Length : 2hr
Recorded Date : 4/23/2008
Format Type : Video

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