What Constitutes a “Success-Based Fees” in a sale of a business

Fees paid to investment bankers or private equity firms contingent upon the successful closing of a transaction (i.e. stock purchase, asset purchase, merger, etc.) have been the subject of recent blog posts.

• In May 2011, the IRS issued favorable guidance (Revenue Procedure 2011-29) allowing a taxpayer to treat 70 percent of the success-based fees as an amount that does not facilitate the transaction, thus a deductible expense. 
• Then in August of 2011, the IRS issued a directive to its Revenue Agents not to challenge a taxpayers treatment of success-based fees, essentially allowing for early application of the Revenue Procedure.
• Last week, the IRS released Chief Counsel Advice (CCA) 201234027 that provides additional clarification on what constitutes a “success-based fee” under Treasury Regulation 1.263(a)-5(a). 

The example cited in the CCA is as follows:

A taxpayer retains an investment banker to provide services as part of a “covered transaction,” the sale of the taxpayers business.  Pursuant to an engagement letter, the investment banker will receive $10 million upon the successful closing of the transaction.  Further, the taxpayer must make certain milestone payments along the way.  The taxpayer will pay $1 million upon the signing of the merger agreement and another $1 million upon shareholder approval of the transaction.  These milestone payments are creditable toward the $10 million that will be owed upon the closing of the transaction.  If the transaction does not close, the taxpayer will not owe the investment banker the additional $8 million, but the $2 million of milestone payments are not refundable.

In the CCA, the IRS states that the $2 million of milestone payments which are nonrefundable are guaranteed payments and do not qualify as success-based fees.  The remaining $8 million would still qualify under the Revenue Procedure.  Taxpayers contemplating a purchase or sale of a business need to be aware of this guidance and closely examine their engagement letter with their investment banker. 

Do you have a question about the application of this guidance to your specific facts?  Contact our Transaction Advisory Services Group or reach out to me directly by email or by calling (855) MARCUM1.