Brief Download

Drafting Tax Provisions for Private M&A and Investment Funds by Ivan Mitev

The attached brief, and chapter excerpt of, “Drafting Tax Provisions for Private M&A and Investment Funds,” explains how this new treatise offers hands-on practical guidance for lawyers, accountants, or investment fund managers that need to understand the tax language used in today’s deal documents. 

Included in the brief are two chapter excerpts that serve as examples of the content and workflow of the treatise.  Chapter discussions featured are “Purchase Price and Related Adjustments,” and “Tax Matters Member; Tax Related Rights of TM or GP.” 

Please fill out the form to the right and instantly download the brief, and chapter excerpt, pictured below.

Drafting Tax Provisions Cover

Table of Contents

The Table of Contents below shows all of the chapters in the treatise, and illustrates its organization into separate chapters with subsections covering the various tax provisions.  Documents within the treatise represent some of the most essential elements of the investment fund and private M&A deal-flow.

TAX PROVISIONS IN THE STOCK PURCHASE AGREEMENT “SPA”

  • Introduction
  • Definitions
  • Purchase Price and Related Adjustments
  • Representations and Warranties of Seller
  • Tax Covenants and Tax Matters
  • Notable SPA Litigation

TAX PROVISIONS IN PARTNERSHIP INTEREST PURCHASE

  • Introduction
  • Capital Account Balance
  • Interim Distributions
  • Seller Rep for Pass-through Items
  • Target Rep for Partnership Status
  • No Publicly Traded Partnership
  • Tax Treatment
  • Tax Returns
  • Disguised Sale Disclosures
  • 754 Elections and Step-up
  • Allocation of Company Items
  • Purchase Price Allocation for Hot Asset/Step-up and Other Purposes; Disclosures Therewith
  • Electing Investment Partnership
  • Cost of Section 743 Adjustments
  • Section 197 Anti-churn Intangible Issues
  • Audits

TAX PROVISIONS IN ASSET PURCHASE AGREEMENTS

  • Introduction
  • Excluded Assets and Assumed Liabilities
  • Purchase Price Allocation
  • Closing Obligations with Respect to Taxes
  • Reps and Warranties
  • Transfer and Transaction Taxes
  • No Assumption of Tax Liabilities and No Successor Liability
  • Proration of Real Estate and Personal Property Taxes
  • Retention of Tax Records
  • Notable APA Litigation

TAX PROVISIONS IN CREDIT FACILITIES

  • Introduction
  • Definitions
  • Tax Reps and Warranties
  • Affirmative Covenants; Payment of Obligations
  • Negative Covenants; Restricted Payments
  • Miscellaneous; Indemnity
  • Yield Protection—Taxes and Increased Cost
  • Notable Credit Facility Litigation

TAX PROVISIONS IN PRIVATE EQUITY LP AGREEMENTS

  • Introduction
  • Section 704(b) Boilerplate
  • Capital Accounts; Related Definitions and Allocations
  • Governance
  • Investor Representations and Covenants

TAX PROVISIONS IN PPM

  • Introduction
  • Disclaimers
  • Summary of Terms
  • Tax Risks
  • Tax Section
  • Notable PPM Case Law

TAX PROVISIONS IN SUBSCRIPTION AGREEMENTS

  • Introduction
  • Information Provided Is Correct
  • Nonreliance
  • Confidentiality
  • Tax Information Required
  • Withholding

PROFITS INTEREST PROVISIONS IN INVESTMENT FUND AND OTHER PARTNERSHIP AGREEMENTS

  • Introduction
  • Accounting Period
  • Purpose of LP
  • Partnership Classification
  • Profits Interest; Treatment as Profits Interest
  • Safe-Harbor Language
  • Capital Accounts Revaluation
  • Getting Paid
  • A Word About Drag-Along
  • The Catch-Up
  • Book/Tax Allocations
  • Escrow
  • Confidentiality
  • Reps and Warranties of Professionals
  • Transfer Restrictions

Learn more at WoltersKluwerLR.com/DraftingTaxProvisions or contact us at 1-800-955-5217