Tax consequences are a crucial factor impacting the negotiation, structure, and documentation of M&A deals. Deal counsel advising buyers and sellers must understand the tax ramifications of a planned transaction at the outset to negotiate and structure the deal in the most tax efficient manner possible.

Practitioners must consider a broad spectrum of buy- and sell-side issues, including evaluating the benefits and risks of a stock sale versus an asset sale and determining whether to structure the deal as a taxable or tax-free transaction or reorganization. Counsel must also weigh the tax implications involved in structuring earnouts and other deferred payments connected with an M&A transaction.

When drafting the purchase and sale agreement and other deal documents, counsel must be careful to reflect their respective client's intent regarding tax outcomes and include tax indemnification provisions to protect their interests.

The panel will review these and other relevant issues:

• The benefits and risks of a stock sale versus an asset sale
• Critical factors in determining whether to structure a deal as a taxable or tax-free transaction
• Principal concerns in structuring earnouts and other deferred payments in connection with an M&A deal
• Best practices for drafting tax provisions in documentation
• The implications of potential tax legislative changes, including to the corporate tax rate and capital gains rates