Monday, April 24, 2017

DRAFTING IN THE DETAILS

By: Emily Dorisio


The Fifth Circuit Court of Appeals recently affirmed that the devil really is in the details in a case that illustrates the importance of ensuring that deal documents accurately reflect the parties’ agreed upon terms with respect to a transaction.   In Makric Enterprises, Inc. v. CIR, No. 16-60410 (5th Cir. 2017), Makric and its shareholders negotiated a sale of Alpha Circuits, Inc., a wholly owned subsidiary of Makric.  After execution of a letter of intent and preparation of initial document drafts, Makric and its shareholders renegotiated the structure of the sale with buyer.  The deal documents were revised, but failed to accurately reflect the renegotiated structure.  Makric and its shareholders did not report the sale as reflected in the deal documents on their respective tax returns – they reported the transaction based on the renegotiated structure.  The discrepancy resulted in an assessment of additional tax and penalties against Makric of more than $3.4 million.  Makric sought to have the Tax Court reform the transaction from the transaction set forth in the deal documents to the renegotiated structure on grounds of mutual mistake, but the Tax Court refused and the Fifth Circuit agreed with the Tax Court. 

This case illustrates the importance of structuring a deal for maximum tax efficiency and following that up by making sure that the structure is accurately reflected in the deal documents.  If you would like more details about this case or need assistance with a transaction, please contact Emily Dorisio in the Lexington, Kentucky office at (859) 899-8714.