Structuring Tax Provisions in M&A Agreements and Protecting Section 382 Tax Attributes

Recording of a 110-minute premium CLE/CPE webinar with Q&A

Conducted on Thursday, August 22, 2013

Recorded event now available

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Course Materials

This teleconference will discuss best practices for structuring and negotiating M&A agreement provisions with tax ramifications and tax-specific agreements, and will discuss the use of tax receivables agreements and ways to protect valuable Section 382 tax attributes.


M&A agreement provisions have tax consequences that require the skill of tax practitioners to structure carefully, including purchase price and allocations, tax representations and warranties, tax-related covenants for pre- and post-closure, tax indemnities, escrows, earn-outs, NOLs, and Sec. 338 elections.

Income tax receivable agreements (TRAs) can allocate tax benefits realized by the buyer years after the sale. The buyer makes payments to the seller to compensate the seller for future tax benefits due to step-up in basis of seller's assets or use of the seller’s NOLs to offset the buyer’s taxable income.

In order to prevent a Section 382 ownership change and protect valuable tax attributes, companies can employ different steps to prevent a hostile takeover resulting in an ownership change. If the seller is in bankruptcy, it can seek an order to avoid the Section 382 change of ownership.

Listen as our authoritative panel of tax practitioners discusses best practices for structuring and negotiating tax provisions of M&A agreements, as well as other provisions with tax consequences, the use of tax receivables agreements, and how to protect valuable Section 382 tax attributes.



  1. Tax implications of various M&A agreement provisions
  2. Structuring provisions with tax ramifications and tax-specific agreements
  3. Use of income tax receivable agreements
  4. Protecting Section 382 tax attributes
    1. Outside of bankruptcy
    2. Post-bankruptcy filing


The panel will review these and other key questions:

  • What are best practices for structuring tax-related terms of the M&A agreement?
  • What are the benefits of income tax receivable agreements and what are the critical terms?
  • What protective measures can companies take to protect Section 382 tax attributes and how can this be accomplished if the company is in bankruptcy?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.


R. David Wheat
R. David Wheat

Thompson & Knight

He focuses his practice on corporate tax, M&A tax, transactions involving partnerships and LLCs, and tax...  |  Read More

Gordon Warnke
Gordon Warnke


He is the Global Head of the Tax Practice and the head of the firm’s U.S. Tax Practice in New York. His primary...  |  Read More

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