PRICE ALLOCATION CONSIDERATIONS ON ASSET SALES

by my friends at BizBen

When buying and selling a business in California, there is the not so little matter of paying sales tax. Yes, sales tax when buying a business, just like you would pay sales tax on a pair jeans at the department store. The theory is that when you are buying a business, you are not just buying the Goodwill, but you are also buying tangible equipment critical in the operation of the business. That tangible property is known as Chattel Real, which is also known as Personal Property.

Furniture, Fixtures and Equipment (FF&E) are things such as a POS systems (Cash Registers), CNC Machines, Lathes, Mills, Kitchen Equipment (for eateries), etc.. So who pays? In California the Seller is responsible for collecting the sales tax and remitting the payment to the State Board of Equalization (SBOE). In the negotiation of a purchase contract for a business, it is the standard custom for the buyer to pay the sales tax bill as they are buying the business and its FF&E.

The State Tax People

However, this is not written in stone, so a buyer may negotiate to have the seller pay some or all of the sales tax due. Why should a seller pay some of the sales tax?. In the cases where we have had seller’s chip in, most of the time it is because of concessions in other areas of the transactions. To a certain degree, the buyer and his financial advisors may feel that they should allocate more of the Transaction Purchase Price into the FF&E. In those cases, where the buyer is motivated by post close of escrow tax ramifications, the seller should have less of an expectation to help out, as the sales tax bill is being increased for greater depreciation benefits for the buyer.

Some FYIs:

  • Coin Laundry/Laundromats do not have sales tax due on the value of the washers and dryers during a sale to a buyer. Sales tax is due on vending equipment though.
  • In the past, if the business that is being sold does not have a permit with the SBOE, then the SBOE would reject and return sales tax payment to escrow, because there was no account number for the business with the SBOE.
  • The SBOE is being stricter than ever on collecting sales tax when a business is being transferred in any format. One of the escrow officers we work with told us that the SBOE manage to collect the full sales tax amount on the cost of the build out of a failed business that ended up selling for pennies on the dollar.

What this means for you is to budget for the Sales Tax bill when buying a business, and always work with a good escrow company.

If a business has no tangible FF&E and property useful in the operation, then, lucky for you, most likely no sales tax is due upon the close of escrow.

When selling and buying a business, it is almost always necessary to allocate the purchase price to various categories of assets for tax and accounting purposes, whether this is a transfer of all the assets of the business or an actual stock sale of the business entity (i.e., corporation or LLC). While specific rules need to be followed, it also requires creativity and finesse borne from education and experience; the parties definitely should seek appropriate professional advice.

This discussion considers allocation issues encountered in the vast majority of business sales, those where the buyer is taking over all the assets of the business but not the entity itself.

The effect on the buyer and the seller may be different for each allocation category, and those differences can amount to significant tax and financial consequences for each party.

The general rule is that the value of the assets of the business should be the “fair market value;” for the most part, the allocation is based upon negotiation between the parties and a compromise of their respective advantages and disadvantages. The buyer is determining what upfront taxes are to be paid at closing and the "book value" of the new business that will establish the amount of depreciation and amortization that can be used to decrease taxes in the future. The seller, if selling for a gain, is establishing how much will be taxed at capital gains rates and how much at ordinary income rates—or, perhaps, not taxed at all.

Precision regarding the specific value of each asset is NOT necessary; what is most determinative is an "arms length" negotiation between the two parties with disparate interests and objectives. Just as the actual fair market value of the business is determined by negotiation, so is the fair market value of each of the components of the business assets. Keep in mind, these are complex matters that could amount to a lot of money, and a certified public accountant (CPA) should be consulted. The business broker(s) should be involved as well to continue to help the buyers to negotiate constructively, creatively, cooperatively, and in good faith.

While there can be certain categories used in specialized situations, by far the usual ones are tangible personal property (or “FF&E”), registered motor vehicles (part of “FF&E”, but listed separately), leasehold improvements, covenant not to compete, training and transition (“consulting”) services, customer list, inventory, and good will. (If there is a liquor license involved, there are special rules for its tax treatment as a separate allocation item.)

TANGIBLE PERSONAL PROPERTY, a.k.a. FURNITURE, FIXTURES, & EQUIPMENT (“FF&E”): Typically, this asset class has a “life” of seven years for depreciation purposes (although certain equipment can be depreciated over just five years). [See IRS publication 946.] For example, if $210,000 is allocated toward FF&E, then the straight line depreciation “write off” would amount to $30,000 per year, for each of seven years.

For the Buyer: Obviously allocating a large amount to this category can be very advantageous to the buyer, with one caveat—the buyer will have to pay state and local sales tax on this amount, generally ranging from 8.75% to 9.25%, through the escrow agent at the closing. (The California State Board of Equalization requires that this amount be at least the seller’s current depreciated book value.) Even though a high allocation to FF&E can result in a significant initial cost for sales tax, it can result in considerable tax savings over time through depreciation, particularly if a large amount can be allocated to a five-year-life equipment category.

For the Seller: If held for over a year, gains exceeding previously-deducted depreciation are long-term capital gain; otherwise it is non-passive ordinary income.

REGISTERED MOTOR VEHICLES: While technically part of the FF&E, motor vehicles should be listed separately because the sales tax is not paid through the escrow at closing; instead, it is paid by the buyer to the DMV when the vehicle title transfer occurs. And, the value of the vehicle(s) for sales tax purposes should not be some arbitrary amount determined by the parties; rather, it should be based on a fair market value from some reputable source, such as Kelley’s Blue Book.

LEASEHOLD IMPROVEMENTS: Long-term improvements made by the seller to the building (not repairs and maintenance) can be allocated; but, they have the longest depreciation term—29.5 to 39 years, depending on the circumstances and the accountant. Since most leases are for less than this term and most businesses have leased premises, in my opinion there is rarely any advantage to either party to use this category and it should be avoided.

COVENANT NOT TO COMPETE: No matter how long it is, the covenant not to compete has a tax “life” of 15 years.

For the Buyer: Approximately 6.67% (1/15) can be amortized (“written off”) each year.

For the Seller: Treated as non-passive ordinary income.

TRAINING AND TRANSITION (“CONSULTING”) SERVICES:

For the Buyer: Can be fully deducted as a current year expense.

For the Seller: Considered ordinary earned income, also subject to self-employment (social security) tax, approximately 15%.

CUSTOMER LIST: Does not need to be separately allocated. 15-year tax “life.” In my opinion, this category should be avoided, and the value of the customer list included in good will.

For the Buyer: Approximately 6.67% (1/15) can be amortized (“written off”) each year.

For the Seller: Considered ordinary income.

INVENTORY: Inventory consists of the value apportioned to that part of the current assets that will be sold to customers or will be converted into product(s) to be sold (e.g., stock on the shelves of a retail store, raw materials in a factory, food in a restaurant); the “stock in trade.”

For the Buyer: This is considered “cost of goods sold” upon the eventual sale of the inventory. There is no sales tax payable as long the business buyer has a valid tax certificate and the inventory is actually purchased for resale.

For the Seller: To the extent that the value exceeds the cost basis of the inventory (which is rare), that excess is ordinary income.

GOOD WILL: What is “good will”? Basically, it is what is left over after everything else is allocated. My preferred definition is: “the enterprise value; the current ability of the business to generate profit in the future.”

For the Buyer: This is a15-year amortization item, approximately 6.67% (1/15) can be amortized (“written off”) each year.

For the Seller: If held for over a year, treated as long-term capital gain.

This information is provided to be educational, but not to be specific professional advice for any particular transaction. While an escrow agent or a business broker can suggest the options for purchase money allocation, only a CPA or other qualified tax accountant can provide professional advice to be relied upon.