The following article is adapted and reprinted from the M&A Tax Report, Vol. 9, No. 11, June 2001, Panel Publishers, New York, NY.


by Robert W. Wood

The "change in ownership" phrase has a variety of meanings under the tax law, particularly in the context of merger or acquisition transactions. In almost all cases, it is a negative concept. Consider the net operating loss rules, where it is certainly something to be avoided. The same applies for the golden parachute rules. Under the golden parachute rules, "excess parachute payments" are nondeductible to a paying corporation, plus subject to a 20% excise tax imposed by Section 4999(a). The rules apply only to excess parachute payments. A parachute payment is any compensatory payment to or for the benefit of a disqualified person (officer, shareholder, key employee or highly-compensated person performing personal services for the corporation) under the following circumstances:

Thus, the change in ownership or effective control is the lynchpin of the golden parachute payment rules. All of the concern about formulas, base amounts, savings clauses, the acceleration of options, etc., simply don't come into play if there is no payment contingent on a change in ownership or effective control.

Merger Okayed

A recent letter ruling concludes that the merger of two corporations will not result in a change of ownership and effective control of the target, nor will it trigger the golden parachute rules of Section 280G. Predictably, the ruling goes on to state that the excise tax of Section 4999 will not apply to payments to current or former employees of the target that are contingent on the merger.

The facts of Letter Ruling 200108008, Tax Analysts Doc. No. 2001-5448, 2001 TNT 38-24, are fairly straightforward. A wholly-owned subsidiary of the acquiring company ("Acquiring Sub") will merge with and into the target. The target will survive, then becoming the acquiring company's wholly-owned subsidiary. A second wholly-owned subsidiary of Acquiring Sub, Acquiring Sub2, will also merge with and into the company, with the company surviving as Acquiring Sub's wholly-owned subsidiary.

Interestingly, the favorable ruling (no change in ownership) is premised on the proviso that after the merger, company shareholders do not act in a concerted way to control the management and policies of the acquiring company.

No Change in Ownership, Vol. 9, No. 11, The M&A Tax Report (June 2001), p. 1.