Ranger Licensing routinely assists its clients in the purchase and sale of businesses that are licensed or permitted by the TABC. When buying and selling a business, one of the threshold issues is whether to opt for an asset purchase or a stock purchase. This decision requires careful consideration as the decision affects a company’s assets, liabilities, ownership, and taxation.

The primary difference between an asset purchase and a stock purchase is that an asset purchase is the acquisition of a business’s assets, as opposed to purchasing the business entity. In contrast, a stock purchase is the acquisition of shares issued by a business entity. The transaction’s composition can significantly impact both the buyer and the seller.

What are Asset Purchases?

Asset purchases occur when a buyer acquires a business’s assets. These assets can include tangible and intangible components, such as equipment and trademark rights. Essentially, an asset purchase allows buyers to select which assets they wish to acquire instead of purchasing an entire company.

The transaction may include acquiring the company’s name, or the buyer may use the assets to establish a new enterprise. There is tremendous flexibility afforded to the buyer. Transactions generally initiate with a letter of intent and finalize with a bill of sale.

Advantages of an Asset Purchase

Asset purchases generally favor buyers. Three key advantages of an asset purchase include:

Advantage 1. Selectively Purchase Assets

Buyers have the option of specifying the liabilities they are willing to assume while leaving the remaining liabilities with the selling company. This advantage contrasts with a stock purchase, which involves purchasing the entire company.

Advantage 2. Seller Pays Capital Gains Tax

The seller must pay taxes on the sale’s gains, while buyers do not have any taxable events at the time of the purchase. Additionally, buyers may immediately begin depreciating the assets. As such, they can deduct the asset’s cost from their taxes, resulting in a lower tax bill.

Advantage 3. No Liability

In an asset purchase, the buyer is purchasing assets, not a business. As such, they are not responsible for the company’s liabilities. This saves time and money and mitigates risk. It is also the primary reason buyers prefer asset sales.

Disadvantages of an Asset Purchase

Asset purchases are not entirely perfect. Three critical disadvantages of an asset purchase include:

Disadvantage 1. Expensive & Time-Consuming

Asset sales are time-consuming and expensive for sellers when only some assets sell. While you can address some legal issues via a transfer agreement, transfer agreements can become challenging to negotiate.

Disadvantage 2. No Termination

If your objective is to sell the entire business, an asset sale will not automatically terminate the business. Following the asset sale, you will need to determine how to handle the remaining assets and liabilities of the business.

Disadvantage 3. Third-Party Approval

Transferring contracts as part of an asset sale requires the consent of a third party. Other asset transfers may become impossible to execute. For example, specific intellectual property transfers may require government filings or approvals, and government permits may be non-transferable. You can typically use an intellectual property assignment agreement.

What are Stock Purchases?

Stock purchases occur when a buyer purchases a company’s shares. The buyer takes ownership and control of the business, typically continuing operations. They also acquire all assets, liabilities, and obligations, whether known or unknown.

With stock purchases, it is critical to thoroughly exercise due diligence because the financial and legal risk involved is exceptionally high.

Advantages of a Stock Purchase

Stock purchases generally favor sellers. Three essential advantages of stock purchases include:

Advantage 1. Turnkey Operations

Stock purchases help buyers take all company assets and the company in a turnkey manner. There are no additional efforts required for asset retitling, contract assignment, or establishing new bank accounts, among other things.

Advantage 2. No Third-Party Consent

The buyer will benefit from seller-assigned contracts and existing licenses and permits and will not have to worry about obtaining third-party consent.

Advantage 3. Transferable Goodwill

The buyer gains access to the entity’s goodwill and credit history by purchasing stock. This benefit includes obtaining favorable finance terms and piggybacking off brand awareness, elements that companies can take more than a lifetime to build.

Disadvantages of a Stock Purchase

Much like asset purchases, stock purchases also have their flaws. Disadvantages of a stock purchase agreement include:

Disadvantage 1. Stockholder Coordination

Your business may have many stockholders. Some of them may be difficult or impossible to contact, making coordination tricky. Buyers typically seek to own 100 percent of a target’s outstanding equity. An absent holder or a small holder opposing the transaction may thwart the buyer’s efforts to accomplish that goal.

Disadvantage 2. High Risk for Buyers

Not all liabilities are identifiable when the transaction closes, meaning you may not know what may arise after the transaction is closed. This situation could give rise to expensive lawsuits, despite required disclosures in the asset transfer agreement.

Disadvantage 3. Assumption of Debts and Liabilities

Along with the company’s stock and assets, the acquiring company also acquires the company’s debts and liabilities. Before signing an agreement, the acquiring company should conduct extensive due diligence measures to avoid taking on unknown issues.

Why Do Buyers Prefer Asset Sales?

Buyers prefer asset sales over stock sales as they mitigate potential future risk. Asset sales can help acquiring companies avoid civil lawsuits, breach of contract disputes, warranty claims, and more. They are also helpful to buyers because asset sales are typically not cash-based, and the seller typically retains any long-term debt obligations.

Tax Treatment: Asset Purchases vs. Stock Purchases

Tax treatments are critical for buyers and sellers to consider, as they can influence how the transaction is structured. A buyer must carefully consider circumstances in which a C Corp target company possesses tax implications that provide future benefits.

Asset Purchase Tax Implications

Tax implications do not transfer to the buyer in an asset purchase. Sellers should exercise caution in cases where the target company possesses significant tax implications. The target company may use these tax benefits to offset any gains in connection with the transaction.

Stock Purchase Tax Treatment

Tax liability generally transfers to the buyer for future use in a stock purchase. However, if the stock purchase results in a change in ownership of more than 50 percent over three years, the tax implications should be evaluated further to determine whether the buyer is subject to any restrictions under Internal Revenue Service (IRS) Code Sections 382 or 383, which may limit the buyer’s ability to use them.