A Useful Spin On Costly Section 338(H)(10) Election

Law360, New York (February 6, 2013, 12:32 PM EST) -- Careful vetting of relative tax benefits and costs has generally been key in a private equity firm’s decision as to whether to request a section 338(h)(10) election in the acquisition of a U.S. subsidiary from a U.S. tax group. But the decision rarely offers much room for creativity. The basic analysis (which may be complicated) is whether the benefit of the step-up to the buyer exceeds the tax cost to the seller. A recent private letter rule confirms that more innovative approaches can be used to...
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