–SINCE 1982–

Asset Allocation for Business Purchases – A Quick Primer for Buyers and Sellers

By Graeme Cloutte, CPA

The tax implications of buying and selling a business need to be addressed before coming to the closing table to finalize the carefully structured deal that First Business Brokers has put together. One of these key implications is how the transaction is structured for purposes of “asset allocation.” In what follows, I am assuming that the deal is a sale of assets, rather than of company stock or LLC membership interests.

The vast majority of deals are asset sales rather that sales of shares of a corporation. There are two main reasons for this. Few buyers are comfortable buying shares, because they would assume all of the liabilities, including those that they don’t even know about, from the seller. Who knows what scary creatures may emerge from the woodwork some months or years after the sale goes through?

The other reason for the preponderance of asset sales is that the buyer can deduct the cost of the assets he or she acquires over a shorter timeframe as depreciation expense. However, with a stock sale, the buyer just “sits” on this cost for years, only getting a tax benefit when he or she sells the business many years down the road.

How the purchase price is to be allocated among classes of assets must be handled consistently between buyer and seller, who each attach Form 8594 to their respective tax returns for the year of the purchase/sale so that the IRS can police this tax treatment. Here is a table that outlines the various “classes” of assets, as prescribed by the IRS and as shown on Form 8594:

IRS Asset ClassSeller’s PreferenceBuyer’s Preference
Class 1Cash and Cash-like assetsNo preference as no taxable gain or loss as amount matches tax basisNo preference
Class IISecuritiesNo preference as no taxable gain or loss as amount matches tax basisNo preference
Class IIIAccounts ReceivableNo preference as no taxable gain or loss as amount matches tax basisNo preference
Class IVInventoryLow amount to minimize ordinary incomeHigh amount as it provides an immediate deduction against ordinary income
Class VOther Tangible Property: 
 Personal propertyLow amount to minimize gain treated as ordinary incomeHigh amount as it provides a deduction against ordinary income, but sales tax may have to be paid on these purchases
 Real EstateHigh amount as affords long term capital gain treatmentLow amount as long depreciation term
Class VICovenants Not to Compete & Other Intangible Property: 
 Covenant Not to CompeteNormally low amount as taxed as ordinary income over term of covenantNormally low amount is deducted over 15 years, as for goodwill
 Other Intangible PropertyHigh amount as taxed as long term capital gainNormally low amount as deducted over 15 years, as for goodwill
Class VIIGoodwill & Going Concern ValueHigh amount as taxed as long term capital gainLow amount as deducted over 15 years

Notice that the preferences of the buyer and seller are typically at odds with each other. This requires negotiation between the parties, a process that normally takes place between the letter of intent and the drafting of the purchase contract. Generally, as a buyer, the preference is for assets that can be deducted quickly. For example, inventories can be deducted as a normal operating expense, and much, or all, of the equipment can be deducted in the year of the business purchase under tax code section 179. For 2012, up to $139,000 of assets purchased can be deducted under section 179. This amount changes from year to year as a result of the politics of Congress. This ceiling of $139,000 applies both to the entity itself, as well as to each owner.

The wildcard in all this is sales tax. The purchase of fixed assets to be used in the business is subject to sales tax (also known as use tax). In Colorado Springs, the combination of State and city sales tax is a rate of 7.4%. Both city and State aggressively seek out businesses that change hands, requiring buyers to submit a “use tax” report listing their purchases of equipment.

Sometimes minimizing use tax (sales tax) trumps the tax deduction of quickly writing off fixed assets.

As is true in so many aspects of the tax law, the rules are complex, requiring the close cooperation of the tax advisors of buyers and sellers in order to craft a purchase price allocation that optimizes the tax results for each of them. With careful planning, buyers and sellers can both be “tax winners.”

The above is not intended to be tax advice for any particular situation. You are advised to seek competent professional tax advice in a transaction for the purchase or sale of a business.

(originally published in August 2012 eNewsletter) 

Graeme Cloutte, CPA, is the founder and principal of Cloutte & Associates, P.C., a Colorado Springs based CPA firm specializing in helping small businesses with tax preparation and tax minimization, QuickBooks set up, and training and profitability enhancement. He can be reached on (719) 633-6150 or