Legal Blog

M & A Nuggets: Use Of 338 Tax Election In An Installment Purchase

shutterstock_311143181One of my previous nuggets discussed how a purchaser and seller can structure a transaction legally as a stock purchase but as an asset sale from a tax viewpoint.  This can be accomplished through what is known as a 338 Election.  The 338 Election is often used when a seller refuses to engage in an asset sale or when a business factor, such as the requirement to maintain a major contract in the name of the seller, exists.  In many business purchases, the purchase price is paid over time, in installments.  Unbeknownst to many, the 338 Election can be coupled with an installment purchase.  This can result in benefits for both the purchaser and the seller – the purchaser is able to depreciate or deduct all or substantially all of the purchase price over time; the seller is able to defer gain on the sale over time.  Coupling a 338 Election with an installment purchase can be a huge win-win situation for the purchaser and the seller. manuggets subscribe2


Glenn D. Solomon Esq., is a principal at the law firm of Offit Kurman and has provided counsel to businesses and business owners for more than twenty-five years, with extensive experience in the purchase and sale of businesses, structuring ownership agreements, and advising companies in financial distress


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