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ALI-ABA Topical Courses Mergers & Acquisitions of S Corporations: How to Structure the Deal December 13, 2011 Video Presentation TABLE OF CONTENTS Page PROGRAM SCHEDULE ix FACULTY PARTICIPANTS xi FACULTY BIOGRAPHIES xiii STUDY MATERIALS 1. Mergers & Acquisitions of S Corporations: How To Structure the Deal - Outline 1 By Jerald David August and Stephen R. Looney TABLE OF CONTENTS 2 I. INTRODUCTION. 5 II. APPLICATION OF SUBCHAPTER C TO SUBCHAPTER S. 6 III. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION PROVISIONS 8 IV. SUBCHAPTER S ELIGIBILITY REQUIREMENTS 9 V. TAX-FREE REORGANIZATIONS. 61 VI. TAXABLE ASSET ACQUISITIONS. 85 VII. CONCLUSION 110 APPENDIX I 111 APPENDIX II 114 2. Mergers & Acquisitions of S Corporations: How to Structure the Deal - PowerPoint 119 Presentation By Jerald David August and Stephen R. Looney vii 2 PROGRAM SCHEDULE December 13, 2011 Program Schedule Eastern Central Mountain Pacific Alaska Hawaii National Teleseminar/Webcast 12:00 pm 11: 00 pm 10: 00 am 9: 00 am 8: 00am 7: 00am Adjournment 3:15 pm 2:15 pm 1:15 pm 12:15 pm 11:15 am 9:15 am Known for their thorough and practical advice, Planner Jerry August and his co-panelist Steve Looney will walk you through the various methods for selling or purchasing the assets or shares of stock of an S corporation or a closely held regular or C corporation. Among the topics to be highlighted will be the impact of the eligibility rules under Subchapter S in structuring acquisitions involving stock of an S corporation, use of qualified subchapter S subsidiaries, taxable and tax-free acquisitions involving S corporations, section 338 (h)(10) deemed asset sales, tax history portability questions, allocation of income or loss in the year of the acquisition, impact on built in gains tax under Section 1374 and related topics. If you are handling buy/sell deals now, invest just three hours and afford yourself the opportunity to ask questions of nationally recognized experts. All participants will have unlimited complimentary access to the program archives. Checklists and sample language are included with a detailed analytical outline on the areas covered. The sample language pertains to tax representations and warranties; due diligence items, etc., are in the checklists. As always, the materials prepared by Jerry August will be a good reference for the future. Program Schedule 12:00 p.m. Mergers & Acquisitions of S Corporations: How to Structure the Deal --- Jerry August and Stephen Looney 15 Minute Break Mid-program 3:00 p.m. ---Questions and Answers 3:15 p.m. Adjournment Total 60-minute hours of instruction: 3.0; Total 50-minute hours 3.6. Suggested Prerequisite: Attendees should have working knowledge of the tax rules governing Subchapter S as well as asset or stock sales, both taxable and non-taxable acquisitions. Educational Objective: Acquisition of knowledge and skills to develop proficiency as a practitioner; maintenance of professional competence as a practitioner; provision of information on recent legal developments. Level of Instruction: Intermediate to Advance ix Nothing in this program, the program materials, or communications stemming from the program (including questions and answers) should be considered as the rendering of legal advice. Non-lawyers should seek the advice of a licensed attorney in all legal matters. Registrants/readers should assure themselves that these presentations/materials/communications are still current and applicable at the time they are delivered or read. Neither ALI-ABA nor the speakers/authors can warrant that these presentations/ materials/communications will continue to be accurate, nor do they warrant them to be completely free of errors when delivered/published. Registrants/readers should verify statements before relying on them. These presentations/materials/communications reflect the viewpoints of their speakers/authors and do not necessarily express the opinions of ALI-ABA Continuing Professional Education or its sponsors. The members of this program's faculty are contributing their services to further the continuing legal education of their fellow members of the Bar. x ALI-ABA Topical Courses Mergers & Acquisitions of S Corporations: How to Structure the Deal Tuesday, December 13, 2011 Video Webcast PLANNING CHAIR Jerald David August, Esquire Fox Rothschild LLP 2000 Market Street 20th Floor Philadelphia, PA 19103-3222 And Florida Office 222 Lakeview Ave Ste 700 Esperante Building West Palm Beach, FL 33401-6148 FACULTY Stephen R. Looney, Esquire 800 North Magnolia Avenue Suite 1500 Orlando, FL 32803 Producer: Nancy Mulloy-Bonn, Esquire xi 2 FACULTY BIOGRAPHIES Planning Chair Jerald David August, Philadelphia, Pennsylvania and West Palm Beach, Florida Fox Rothschild LLP Jerald David August is Co-Chair of the Firm’s Tax & Estates Department. Mr. August maintains a practice in Philadelphia as well as in West Palm Beach. He is a national authority on federal taxation and is a frequent lecturer throughout the U.S. on federal tax matters, including corporate and partnership taxation, international taxation, wealth transfer taxation, tax controversy and tax litigation. Mr. August is past Vice-Chair (Publications) of the American Bar Association, Section of Taxation and past Editor-in- Chief of The Tax Lawyer, Vols. 58 & 59, which is the leading law review for tax practitioners in the U.S. He is Editor-in-Chief of the Journal of Business Entities, a leading national tax publication. Mr. August has served as Chair of the S Corporation and CLE Committees of the ABA Tax Section and has served on the Task Force on Federal Wealth Transfer Taxes, Subcommittee on Carryover Basis and as Chair of the ABA Tax Section’s Task Force on Pass-Through Entity Integration. He is a long-standing member of the Advisory Board of the New York University Institute on Federal Taxation and has served as Chair of the Institute on Federal Wealth Taxation (2006 - 2011) and Chair of the NYU Annual Institute on Federal Taxation Closely-Held Businesses Session (2001 - 2011). He has chaired and participated in various national programs including the Graduate Tax Program of the NYU School of Law, ALI-ABA, ABA Tax Section, and various state bar programs and institutes, including Pennsylvania Bar Institute and Florida Bar Tax Section. He is a member of the ABA Tax Section Committees on Government Submissions, Foreign Activities of U.S. Taxpayers, U.S. Activities of Foreigners & Tax Treaties, Partnerships & LLCs and S Corporations; Business Law Section, Mergers & Acquisitions Committee, International Mergers & Acquisitions Subcommittee; American College of Tax Counsel; the American College of Trust and Estate Counsel; American Tax Policy Institute; American Law Institute; and, member of the Consultative Groups on Restatement (Third) of Donative Transfers and Restatement (Third) of the Law of Trusts. Mr. August has represented the Tax Section of the Florida Bar Association before the United States Supreme Court in Estate of Hubert v. Commissioner. He also has served as adjunct professor for the University of Miami Law School, visiting professor at the Graduate Tax Program at the University of Florida School of Law, University of Pittsburgh School of Law and as guest lecturer at the University of Pennsylvania School of Law. He has been named in The Best Lawyers in America, was selected as a leading attorney in tax law by Forbes: South Florida Legal and has been recognized by Chambers for the fourth year as a leader in tax law in Florida. xiii FACULTY Stephen R. Looney, Orlando, Florida Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, PA Mr. Looney is the Chair of the firm’s Tax Department. He represents clients in a variety of business and tax matters including entity formation (S and C corporations, partnerships, and LLCs), acquisitions, dispositions, redemptions, liquidations, reorganizations, tax-free exchanges of real estate and tax controversies. His clients include closely held businesses, with an emphasis on medical and other professional practices. He is a former Chair of the S Corporations Committee of the American Bar Association’s Tax Section. He is Board Certified in Tax Law by the Florida Bar, as well as being a Certified Public Accountant (CPA). Professional and Civic Activities American Bar Association Tax Section Member Former Chair of the S Corporations Committee The Florida Bar - Member Health Law Section Tax Section American College of Tax Counsel - Fellow Business Entities Journal Board of Advisors and Department Heads, Current Developments Editor The Florida Bar Foundation, Inc. – Fellow State Bar of Texas The Missouri Bar Missouri Society of Certified Public Accountants Leadership Orlando, Graduate Kiwanis Club of North Orlando - Member, Board of Directors and Past President My Region, Regional Development Program - Member, Board of Directors Education Master of Laws (LL.M.) in Taxation: University of Florida Levin College of Law, Gainesville, Florida, 1985 Graduated First in Class Juris Doctorate: University of Missouri Columbia School of Law, Columbia, Missouri, cum laude, 1984 Order of the Coif; Missouri Law Review, Member and Note and Comment Editor Undergraduate Degree in Accounting and Business Administration: Drury College, Springfield, Missouri, magna cum laude, 1981 xiv Bar Admissions Florida Texas Missouri U.S. Tax Court Recognition & Awards Board Certified in Tax Law by The Florida Bar Named an Outstanding Tax Attorney in Chambers USA, America’s Leading Business Lawyers, 2007 - 2011 Named an Outstanding Tax Attorney in The Best Lawyers in America®, 2006-2011 Named an Outstanding Tax, Business/Corporate and Health Care Attorney in Florida Super Lawyers Magazine, 2006- 2011 Named one of Orlando’s Best Tax Attorneys by Orlando Magazine, 2006-2011 Named an Outstanding Tax Attorney in Florida Trend Magazine’s Legal Elite, 2005 - 2006 Named an Outstanding Tax Attorney in Orlando Business Journal’s Best of the Bar, 2004 Listed in Marquis Who's Who in American Law Martindale-Hubbell: AV Rating xv 2
"ALI ABA Topical Courses Mergers Acquisitions of Corporations"