I’m seeing some #deals where the earnout isn’t paid in cash, but extra shares. 🤔 That raises a surprisingly tricky #tax question.
The deal structure looks like this: at completion, the seller receives shares plus a contingent earnout. If the earnout is satisfied, the seller is paid in further shares. The big question becomes whether those future shares can also enjoy scrip‑for‑scrip treatment. As we all know, applying two tax regimes is more fun than just one.
If the earnout qualifies as a look‑through earnout right (LTER) – think future benefits not reasonably ascertainable, underlying asset was an active asset, benefits within 5 years, contingent on economic performance etc. etc - the answer is usually yes. The #ATO says so in PBR 1052214930033. They’ve also confirmed that the ‘single arrangement’ requirement can be satisfied when shares are exchanged in two stages (ATO ID 2002/274).
But when the earnout doesn’t qualify as an LTER, things get less friendly. The earnout becomes a separate CGT asset under TR 2007/D10. That separate asset is treated as ‘ineligible proceeds’ (ATO ID 2002/100), meaning it’s carved out of the rollover 😬.
📌Takeaway: Earnouts can absolutely be paid in shares — but they’re only tax‑effective if they qualify as an LTER. Otherwise, you’re outside the rollover, and nobody enjoys that.
#AustralianBusiness #DealMaking
Can a "Roth 401k" go into a "Roth IRA" though? or does it have to go to a "Rollover IRA"? (to be tax-and-penalty-free)