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Identify hidden financial and tax risks for your acquisition

December 16, 2021 Article 3 min read
Eric Wozniak Robert Shefferly III Michele E. McHale

If you’re considering acquiring another business, be sure to perform thorough financial and tax due diligence. If there are “skeletons in the closet,” you want to know prior to an acquisition.

image of business professionalsThe main goal of financial and tax due diligence is to mitigate the risks associated with a transaction. Due diligence provides the buyer an opportunity to uncover potential “skeletons in the closet” prior to an acquisition. As a starting point for any investment analysis, you must assess and verify the seller’s financial performance and tax compliance history. While the concept is basic, the processes involved are anything but straightforward and require careful analysis.

Due diligence provides the buyer an opportunity to uncover potential “skeletons in the closet” prior to an acquisition.

Financial due diligence

Financial due diligence is typically the most thoroughly examined aspect of the due diligence process, but don’t let familiarity obscure the task at hand. A thoughtful and holistic approach is required to truly understand the potential risk areas and their corresponding implications on the transaction.

  • Access capabilities: As a starting point, your target must be able to produce timely and consistent financial statements.  It’s vitally important to analyze the numbers with an eye toward inconsistencies and deviations from generally accepted accounting principles to determine if the target company deploys consistent procedures on a monthly and annual basis. Analyzing monthly trends can help identify potential issues beyond actual performance swings.
  • Examine position: Examine the target company’s position in the marketplace, noting trends that could impact recent performance. For instance, take a transaction involving a petroleum retailer. Financial performance could appear exceptional, though a closer inspection could reveal inflated industrywide margins due to uncharacteristic oil pricing activity. A return to average pricing could significantly deflate performance metrics, and thus valuation, commensurately.
  • Determine nonrecurring items that may impact post-close results: Finally, look carefully for any obscured events or decisions that can influence future post-integration earnings:
    • An owner that hasn’t taken a salary
    • Compensation levels for staff & management
    • Healthcare & other benefit costs
    • Legal issues, including settlements, that directly impact expenses
    • Unpaid tax liabilities, including IRS liens & other issues caused by poor cash management controls
    • Dated ERP applications that don’t provide sufficient or even accurate financial metrics, such as inventory and WIP
    • Impact of the COVID-19 pandemic on the company & its industry

Four additional considerations

While each company and transaction are different, some consistent traps to avoid include:

  1. Poor cash management controls
  2. Inventory costing & valuation
  3. Collectability of accounts receivable
  4. Ineffective systems & processes

Tax structuring, due diligence, and planning

You should view the tax implications of a proposed transaction holistically. Tax structuring and tax due diligence are necessary to ensure your long-term tax objectives are achieved.

  • Tax structuring: Tax structuring seeks to identify the optimal tax structure for a transaction, preferably one that achieves a step-up in the tax basis of assets. Possible ways to achieve a step-up may include a:
    • Direct asset purchase
    • Deemed asset purchase (e.g., Section 338(h)(10) or Section 336(e) elections, purchase of a disregarded entity)
    • Purchase of an ownership interest in a partnership or limited liability company that’s classified as a partnership for tax purposes
    • Unilateral Section 338(g) election to treat a stock purchase as an asset purchase
  • Tax due diligence: Tax due diligence should be tailored to your target entity’s tax classification (C corporation, S corporation, limited liability company, or partnership) as well as the structure of the transaction from a tax perspective. In certain instances, tax exposures may be so significant that they cause the tax structure of the proposed acquisition to be altered. You may be subject to state and local successor liabilities laws, even in transactions structured as direct asset purchases. Common areas of focus during due diligence may include:
    • Failure to file required tax returns
    • Missing elections or forms (e.g., reporting of a transaction, accounting method changes, safe-harbor elections, transactions between related parties)
    • The validity of the S corporation status of the target company
    • Related party transactions (arm’s length)
    • Previous acquisitions, dispositions, or legal reorganizations
    • Timing of deductions & revenue recognition policies
    • Payroll withholding taxes & the misclassification of employees as contractors
    • Executive compensation, golden parachutes, & bonus structure/incentive plan
    • State sales & use tax issues (i.e., nexus)
  • Tax planning: Your deal team should recognize the interplay between tax structuring and tax due diligence when planning a transaction. In doing so, historical tax exposures may be mitigated, and costly future tax compliance exposures can be avoided. Additionally, the potential impact upon ROI may be minimized, and deal proceeds will be maximized upon future exit.

Your deal team should recognize the interplay between tax structuring and tax due diligence when planning a transaction.

To the extent that you’ll assume historical tax exposures given the legal form of the transaction, potential tax exposures should be addressed in the transaction documents as well as post-close.

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