November 7, 2019 Introduction: In the world of mergers and acquisitions (M&A), the wording of agreements holds significant weight. When conflicts arise after a deal is closed, legal professionals and judges turn to the precise language in the M&A documents…
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Buyer’s Defeat in Dispute with Asset Seller Over Deal’s Sales Tax Responsibility
Posted in allocation of sales tax from transaction, asset purchase agreement Tagged with: allocation provision, asset purchase agreement, buyer-seller dispute, contract language, Gaines Mar. & Servs., Inc. v. CMS Mar. Stor., intermediate court of appeal, LLC, M&A case study, M&A legal blog, New York state trial court, sales tax responsibility
Recent Posts
- Why Every M&A Earnout Deal Needs a Buyer Efforts Clause — Even with Strong Buyer Covenants
- M&A Seller Deadlines Nobody’s Watching: Earnout Calculations, Indemnification, and Escrow Claims
- Delaware’s Implied Covenant of Good Faith and Fair Dealing Can’t Save $400 Million Regulatory Earnout Milestone When Government Changed Approval Pathway
- What Your Anti-Reliance Clause Cannot Do
- Make the Transfer of the Digital Assets an APA Closing Condition
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Categories
- "as is where is"
- 351 M&A transactions
- Accounting Firm Dispute Resolution
- accounting methodology
- actual knowledge
- actual notice to known creditors
- against public policy
- agreement to agree is unenforceable
- agreement to agree on earnout revenue inclusion
- all cash deal
- allocation of preclosing taxes refunds and credits
- allocation of sales tax from transaction
- alter ego
- alter ego
- alternative dispute resolution
- ambiguous exclusion
- amortization
- anti-destruction clause
- anti-reliance clause
- anti-reliance clause
- anti-stripping covenants
- APA closing conditions
- approval of franchisor
- approval of investment banking fee
- arbitration
- arbitration in employment agreements
- arbitration vs expert determination
- asbestos claims
- asset buyer's assumption of seller's liabilities by contract
- asset purchase
- asset purchase agreement
- asset seller's liabilities
- asset vs stock deal
- Assignment
- assignment of contracts
- assumed liabilities
- assumption of a contract
- assumption of contract by incorporation by reference
- attorney client privilege
- Attorney's Fee Provision
- bad faith
- bankruptcy sale
- best efforts to secure financing
- binding only upon execution of definitive acquisition agreement
- bitcoin
- blockchain
- boilerplate provisions
- bona fide offer
- book value adjustment
- books and records rep and warranty
- boot
- boot
- bootstrapping doctrine
- breach of contract
- breach of contract
- breach of contract exclusion
- breach of representations and warranties
- breach of seller's covenants
- broad or narrow scope of forum selection clause
- bundled sales
- business cards
- business judgment rule
- buyer assumption of seller liability
- Buyer beware
- buyer connected to seller insiders
- buyer covenant to provide seller access to promote seller products post-closing
- buyer earnout working capital funding covenant
- buyer equity
- buyer has no regulatory problems
- Buyer payment of seller retained liabilities
- buyer representations and warranties
- buyer's assumption of seller liabilities in asset acquisition
- buyer's covenants
- buyer's stock as currency
- buying distribution business
- C Reorganization
- Calculating Earnout Metrics
- California
- cannabis dispensary
- capitalization of cash flow
- cash
- cash and cash equivalents
- CERCLA or superfund liability
- certificate of insurance
- certificate of need
- CGL Policy
- Change of Control
- choice of law provision
- choice of law provision
- claim against seller's liability insurance
- closing
- co-author
- commercially reasonable efforts
- common interest doctrine
- compliance with all applicable laws
- compliance with law
- consent to assignment
- consent to assignment
- Consistent with past practice of acquired business
- constructive knowledge
- constructive knowledge
- continuity of enterprise exception
- continuity of ownership
- contracts
- contravene strong state public policy
- controlling shareholder fiduciary duty M&A
- copyrights
- corporate overhead
- corporate overhead allocations
- covenant not to compete
- Covenants
- Cross-Selling Earnout Credit
- customer and supplier rep
- customer deposits
- customer due diligence
- customer list
- customer list
- cybersecurity risks
- damages
- de facto merger exception
- death of seller's impact upon noncompetition payments
- deduction of expenses buyer traded away
- deferred closing
- defining earnout milestone by business goal
- defining retained business by category not as currently conducted
- Delaware
- deliberate fraud carveout
- denial of consent must be reasonable
- dental practice sale
- Description of business assets purchased
- determination of purchase price adjustment
- digital assets
- diminuation of value
- direct
- director and officer duty of care
- director liability
- directors and officers insurance policy
- discharge in bankruptcy
- disclosure schedule
- discounted cash flow or DCF
- dispute resolution procedure
- dispute resolution provision
- distressed business acquisitions
- divestitures
- doing deal with company's officer or director
- due diligence
- duty to defend
- Duty to Defend
- Duty to negotiate in good faith
- duty to warn
- earn out
- earn out dispute procedure
- earn outs
- Earned customer deposits
- earnout
- earnout as ownership interest in buyer
- earnout based upon revenue from at will contracts
- earnout dispute resolution procedure
- earnout payable upon constructive termination
- earnout payable upon termination without cause
- earnouts based on construction milestones
- earnouts based upon fda/ec milestones
- earnouts in bankruptcy
- EBITDA
- EBITDA
- EBITDA earnouts
- economic loss doctrine
- employment agreement
- employment agreement
- enforce against nonparty
- enforceability of non-owner noncompete
- enforcing buyer earnout deadlines
- entire fairness
- environment representations and warranties
- environmental
- environmental problems
- equitable contribution
- equitable estoppel
- escrow
- exclude transaction costs and success bonuses from profit calculation
- Excluded Assets
- excluded liabilities
- excluded or retained liabilites
- exclusive remedy
- exclusivity provision
- excuse for untimely indemnification claim
- executory contracts
- expenses that should be capitalized
- express duty to negotiate in good faith
- Express efforts clause vs. Delaware's implied covenant of good faith and fair dealing
- extension by contract in Delaware
- extension of closing
- extra-contractual fraud
- extracontractual fraud
- F reorganization
- failure to make timely purchase price payment
- fair insider deal
- Family and Medical Leave Act
- FDIC approval
- federal employer liability
- federal employment discrimination liability
- federal multiemployer pension plan withdrawal liability
- federal securities fraud
- federal wage and hour violations
- fee based upon buyer debt assumption
- financial representation and warranty
- financing acquisition issues
- for cause termination
- force majeure
- foreign income tax
- form over substance
- forum non conveniens doctrine
- forum selection clause
- franchise sale
- fraud
- fraud carveout
- fraud carveout
- fraud in business sale
- fraud in the inducement exception
- fraudulent concealment
- fraudulent inducement
- fraudulent intent
- fraudulent omission
- full disclosure
- full disclosure rep
- full disclosure rep
- further assurance provision
- further assurance provision
- getting buyer to provide earnout calculation supporting data
- governmental approval
- governmental approval of transaction
- Guaranty
- guaranty of related acquisition agreements
- handshake redemption obligation
- hinder, delay or defraud
- hiring seller's employees
- hybrid noncompetes
- implied assumption of seller contract/liability
- implied covenant of good faith and fair dealing
- implied covenant of good faith and fair dealing
- implied duty of good faith and fair dealing
- implied warranty of merchantability
- importance of nonreliance clause in nondisclosure agreements
- indemnification
- indemnification cap
- indemnification for pre-closing product loss
- independent trustee
- inequitable
- insider
- insurance broker duty
- insurance coverage
- insurance requirements
- integration clause
- integration clause bars extracontractual promises of future performance
- Intellectual Property
- Internal Revenue Code Section 1377 election
- investment banker/business broker
- joint venture
- judgement for intentional misrepresentation
- Key Employee Retention Requirement
- key employees of target
- Kovel doctrine – translator exception
- land use issues
- layoff notice law or Warn Act
- leases
- leases
- letter of intent
- liens
- liquidated damages provision
- LOI good faith negotiation covenant
- loss payee
- lost profits
- lower middle market m&a
- M&A agreement
- M&A closing conditions
- MAE rep
- major shareholders exclusion
- mandatory vs. permissive
- material
- material contracts
- material rep and warranty breach
- Medi-Cal provider agreements
- membership interest purchase agreement
- mere continuation
- mere continuation exception
- merger
- merger agreement
- midco transaction
- minority business participation program
- misappropriation of likeness
- misleading personal financial statement
- missing attachment to acquisition document
- modification as counteroffer
- multi-employer pension plan
- mutual mistake
- mutual mistake
- negligent misrepresentation
- Negotiated Pre-closing price concessions and releases
- net working capital adjustment
- New York
- no kickback or bribe rep
- no oral modifications of contract
- no pending government investigations or inquiries
- no solicitation of seller employees
- No Undisclosed Liabilities
- Non-Disparagement Clause
- non-reliance clause
- nonbinding
- nonbusiness income
- nonbusiness income/sale of subsidiary
- noncompete area
- noncompete term extensions
- noncompetition covenant
- noncompetition covenant term
- nondischargeable debt in bankruptcy
- nondisclosure agreement
- nondisclosure agreements
- nondisclosure provision
- nonqualified preferred stock
- nonsolicitation of employees and customers
- nonsolicitation of former customers
- note payment amount adjustment
- notice
- notice provision
- objection -reasonable detail
- officer duty of care
- offset or setoff provision
- offset right
- One class of stock
- only assessed taxes
- oral contract
- oral contracts
- oral copyright agreement
- ordinary course of business
- overly complicated language in contract
- owner liability for company breach of financing deal
- Ownership of Target Law Firm File
- parol evidence rule
- patent licensor consent in forward merger
- patents
- payroll tax
- permits and certificates
- personal goodwill
- personal guaranty
- personal guaranty of company debt by selling shareholder
- personal guaranty of lease
- Personal Name
- photo or image
- piercing veil of acquisition subsidiary
- post asset purchase issues
- post closing covenants
- post signing asset valuation
- post-closing adjustments for pre-closing sales and services
- post-closing sales tax
- PPA v indemnification
- PPP loan
- PPP loan assumption
- pre-closing management agreement
- pre-closing operating arrangement
- pre-closing sales tax
- Pre-Suit Investigation Right
- preservation of due diligence materials
- prior-material-breach doctrine
- private credit financing
- private equity
- Privilege Access Protocol
- Problem with distributors
- Problem with Investment Banker/Broker/Finder Fee
- problem with mandatory arbitration clause
- Problem with products
- problem with prorations
- problem with purchase price adjustment
- problem with seller co-owners
- problem with seller contract
- Problem with seller lessor or landlord
- Problem with seller owner's competition
- problem with seller's owner
- problem with stock options
- Problem with Union Pensions
- Problem with Vendors and Suppliers
- Problems when business fails after closing
- Problems with Bankruptcy Auction Sales
- Problems with business records
- Problems with Competitors
- problems with condition of assets
- problems with creditors of distressed business
- problems with customers
- Problems with Deferred Purchase Price
- Problems with Deposits
- Problems with Description of Assets
- Problems with description of purchase price
- Problems with distressed business seller unexpired tenant leases
- problems with divestitures
- Problems with due diligence
- problems with earnouts
- problems with employees
- problems with escrows
- Problems with financials
- problems with financing transaction
- problems with forum selection clauses
- Problems with franchise deals
- problems with general liability insurance
- Problems with governments
- problems with indemnification notice
- problems with insurance
- Problems with intellectual property
- problems with leases
- problems with noncompetition covenants
- problems with oral M&A promises
- problems with patents
- problems with pensions
- problems with post-closing litigation in inconvenient form
- Problems with post-closing management of business
- problems with products liability claims
- Problems with Real Estate Leases
- problems with receivables
- problems with regulatory industry acquisitions
- Problems with related party contracts
- Problems with rollover equity
- Problems with sale of auto dealerships
- problems with seller nondisclosure
- problems with seller's employees
- problems with seller's lender
- Problems with seller's pre-closing errors & omissions
- Problems with seller's projections
- problems with seller's real property
- problems with seller's unemployment insurance experience rating
- problems with sharing tax benefits
- problems with simultaneous closings
- problems with subordination rights
- problems with successor liability
- problems with survival provisions
- problems with taxes
- Problems with typos
- Problems with Undisclosed Liabilities
- Problems with undocumented employees
- product line exception
- projections
- projections
- promissory estoppel
- promissory note
- prudence
- public information exclusion
- punitive damages
- purchase agreement
- purchase price
- purchase price adjustment
- Put buy infrastructure promises in writing
- quality of earnings assessment
- ratifying unassumed contract by post-closing action
- reasonably equivalent value
- receipt of buyer equity – seller protections
- receipt of buyer equity or security
- receipt of buyer equity or security
- receivables
- reciprocal Non-Disparagement Clause
- recoupment doctrine
- reformation
- reformation of contract
- regulated business
- reliance
- remote use of trademark out of territory
- representation and warranty about customers
- representations and warranties
- rescission
- rescission
- restricted offset or setoff
- restrictive post-closing covenants
- retained business carveout
- retaliation
- retention bonus
- revenue and profit projections
- reverse termination or breakup fee
- Revlon doctrine
- Right of publicity
- risk of post closing payments
- robust buyer litigation warranty in earnout deal
- robust objective buyer earnout covenants
- royalty
- S corporation
- sale leaseback
- sale of assets of business
- sale of business to ESOP
- sale of product line
- sales order
- sales tax
- sales tax imposed on equity sale of DRE
- sales tax risk
- SBA approval re PPP loan
- scienter
- scope
- Section 1377 election
- Section 363 sale
- securing buyer's note
- securing deferred purchase price
- security agreement
- sell side M&A
- seller carried purchase price
- seller knowledge
- seller owner responsibility for underreported sales tax
- seller owners equity interest in buyer
- seller ownership in buyer
- seller rep of no federal employer liability
- seller's age discrimination claims
- seller's covenants
- seller's federal injunctions
- seller's unemployment experience rating
- seller's warranty claims
- seller's workers compensation experience rating
- Selling shareholders problem with their board of directors
- severance benefits
- sexual harassment
- shareholder approval of deal
- shareholder buyout of partner
- shareholder personal guaranty of target lease
- shareholder release
- sharing transaction tax deduction benefits
- sick time
- signature escrows are risky
- signing LOI with revisions by signer
- social media transfer
- special indemnity escrow
- specific performance
- spousal consent
- state and local tax
- state approval of nonprofit hospital
- state franchise/income tax
- statute of frauds
- statute of limitations
- statute of limitations
- stay bonus
- step-down provision
- stock purchase agreement
- stock sale
- strategic acquisition
- strategic acquisition
- structure of transaction
- subordination
- substance over form
- substantially all assets
- success fee
- successor liability
- sufficiency of assets rep
- supply problems
- survival of covenants
- survival of reps and warranties
- survival period commencement
- tangible net worth
- target's stock options
- tax
- tax benefit sharing
- tax deferred reorganization
- tax penalties and additions
- Taxation
- termination of M&A agreement
- termination or breakup fee
- third party
- third party beneficiary clause
- time of the essence
- timely objection to indemnification claim
- tolling
- tolling
- tort misrepresentation in M&A
- tortious interference with prospective economic advantage
- trade secret misappropriation
- trade secret misappropriation by former seller employee
- trademark infringement
- trademarks
- transferee liability for taxes IRC Section 6901
- TRO/preliminary injunction before filing for arbitration
- tying fraud to economic loss
- typo or scriverner's error
- UCC search
- Uncategorized
- understanding private equity
- undisclosed deal term
- Uniform Fraudulent Transfer Act or Uniform Voidable Transfer Act
- union fringe benefits
- union liabilities
- unitary business
- unjust enrichment
- unliquidated or disputed claim
- unwanted assets
- vacation time
- valuation
- waiver of contractual provision
- waiver of jury trial
- waiver of removal to federal court
- waiver provision
- willful breach carveout
- willing buyer or procuring cause
- Withholding Post-closing payments
- working capital adjustment
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