7.14 Tax Receivable Agreements
A common method for partnerships or limited liability companies
(LLCs) to raise capital via an initial public offering (IPO) or through a
special-purpose acquisition company (SPAC) is by using the umbrella partnership C
corporation (“Up-C”) structure. An Up-C structure involves (1) the formation of a
new corporation (often referred to as “PubCo”) for the purpose of completing a
public offering and (2) the restructure of transactions to carry on the business of
an operating entity (often referred to as “OpCo”) that is usually structured as an
LLC or a limited partnership.
To become a public company and complete the Up-C structure, PubCo typically executes
a series of reorganization steps that allow it to take advantage of certain tax
benefits for pass-through entities. Shares of PubCo are issued and sold to the
public in an IPO; PubCo then uses the proceeds from the IPO or newly issued stock to
acquire an ownership interest in the existing OpCo. As a result of the IPO and the
reorganization steps, PubCo becomes a holding company whose sole asset is its equity
interest in OpCo, which generally represents a controlling financial interest in
OpCo that must be consolidated in accordance with ASC 810. In the absence of
substantive operations before the reorganization steps and IPO, PubCo would not meet
the definition of a business, and its legal acquisition of OpCo would therefore not
be considered a business combination under ASC 805. Alternatively, the
reorganization steps and IPO represent transactions that are under common control
(e.g., an equity transaction) and the OpCo units that continue to be held by
existing owners are accounted for as an NCI within equity on PubCo’s consolidated
balance sheet.
An Up-C structure can benefit the pre-public-offering owners (existing owners) of
OpCo by allowing them to maintain ownership for U.S. federal income tax purposes
through an LLC or partnership, which would continue to receive the advantages of a
single taxation level until the existing owners sell their interests.
An Up-C structure also gives the existing owners the right to exchange their OpCo
interests for cash or newly issued shares of PubCo on a one-for-one basis. If they
exercise this right, PubCo will be entitled to certain future tax benefits from
adjustments under the Internal Revenue Code related to the assets of OpCo.
Specifically, PubCo would receive a step-up in the tax basis of the net assets
resulting from the exchange with existing owners, which in turn would provide
additional tax amortization and depreciation expense in future periods (i.e., a
deferred tax asset).
To incentivize existing owners to exchange their LLC or partnership units, PubCo may
negotiate and execute a tax receivable agreement (TRA) with them. A TRA gives
existing owners that have exchanged their units the right to receive a percentage
(usually 85 percent) of the net cash savings, if any, in U.S. federal, state, and
local income tax that PubCo realizes or is deemed to realize. The TRA payments
capture the value of the future tax benefits transferred to PubCo that would have
otherwise been forgone in a traditional IPO.
Under the terms of a TRA, PubCo accounts for the exchange of LLC or partnership units
by existing owners as an equity reorganization through which:
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A deferred tax asset is recognized as a result of the increase in the tax basis of the net assets. The deferred tax asset is recognized directly in equity as part of the equity transaction.
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The corresponding TRA contingent obligation (usually 85 percent of the net cash savings to be realized) is recognized as a reduction of equity on the same date the initial deferred tax asset is recognized.
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After initial recognition, any increase or decrease in both the deferred tax asset and the TRA obligation would be recognized in the income statement.
To compute the amount of the TRA obligation, PubCo calculates
realized tax benefits by comparing its actual tax liability with the amount that it
would have been required to pay in the absence of the future tax benefits from the
step-up in tax basis. PubCo then measures the payment obligation under the TRA as
the negotiated percentage (e.g., 85 percent) of the realized tax benefits.
When assessing how to classify the TRA payments in the statement of cash flows, PubCo
would apply ASC 230-10-45-10, which requires entities to “classify cash receipts and
cash payments as resulting from investing, financing, or operating activities” on
the basis of the nature of the cash flow. However, certain cash payments may
resemble more than one type of cash flow. ASC 230-10-45-22 states:
Certain cash receipts and payments may have aspects of more than one class of
cash flows. The classification of those cash receipts and payments shall be
determined first by applying specific guidance in this Topic and other
applicable Topics. In the absence of specific guidance, a reporting
entity shall determine each separately identifiable source or each
separately identifiable use within the cash receipts and cash payments
on the basis of the nature of the underlying cash flows, including when
judgment is necessary to estimate the amount of each separately
identifiable source or use. A reporting entity shall then classify
each separately identifiable source or use within the cash receipts and
payments on the basis of their nature in financing, investing, or operating
activities. [Emphasis added]
Currently, there is no authoritative accounting guidance on the
classification of TRA payments in the statement of cash flows. We believe that the
classification and presentation of such payments should be evaluated on the basis of
the substance or nature of the transaction.
When assessing the nature of a TRA, PubCo would consider whether the
payments represent cash outflows to NCI holders that are equal to a percentage
(e.g., 85 percent) of the cash tax savings realized by PubCo as a result of
increases in the tax basis derived from the existing owners’ exchanges of OpCo units
for shares of PubCo. ASC 810-10-45-23 addresses distributions to NCI holders and
states, in part:
Changes in a parent’s ownership interest while the parent
retains its controlling financial interest in its subsidiary shall be
accounted for as equity transactions (investments by owners and
distributions to owners acting in their capacity as owners).
Since the reorganization steps and IPO represent transactions under
common control and the authoritative guidance in ASC 810-10-45-23 concludes that
payments to acquire NCIs would be considered “distributions to owners acting in
their capacity as owners,” payments under the TRA to NCI holders to settle a TRA
obligation can be considered payments related to an equity transaction. This is
further clarified in Section
6.2.2, which states that distributions to NCI holders (in their
capacity as equity holders) are considered equity transactions.
ASC 230-10-45-15(a) suggests that TRA payments should be classified as cash outflows
for financing activities because such payments are a settlement of an obligation
established through an equity transaction. However, remeasurement of the TRA
liability is recognized in the income statement; consequently, the definition of
“operating activities” in ASC 230-10-20 suggests that TRA payments could be
classified as cash outflows for operating activities because “[c]ash flows from
operating activities are generally the cash effects of transactions and other events
that enter into the determination of net income.” TRA payments therefore have
aspects of more than one class of cash flows.
In the absence of guidance on this topic (i.e., on the attribution of TRA payments to
the equity transaction or on the cash effect of a transaction included in the
determination of net income when both aspects are present), we believe that it is
reasonable to apply by analogy the cash flow guidance on contingent consideration
payments made after a business combination and on the settlement of zero-coupon debt
instruments.
As discussed in Section 7.5.4, an entity is
required to classify as financing activities payments made up to the amount of the
contingent consideration liability recognized on the acquisition date; any payments
made in excess of the initial contingent consideration liability must be classified
as operating activities. Note that ASC 230-10-45-15 refers to “payments” to indicate
that cumulative payments to date that are related to a contingent consideration
liability should first be classified as financing activities up to the amount of the
initial liability and that cumulative payments in excess of that initial liability
should be classified as operating activities. In addition, Section 6.4.2 discusses the cash flow presentation
of zero-coupon debt instruments, which is similar to the presentation of payments
made on contingent consideration liabilities. Specifically, an entity is required to
classify payments made up to the amount of the principal of the zero-coupon debt
instrument (initially recognized on the balance sheet) as financing activities and
classify payments made to settle zero-coupon debt instruments related to accreted
interest for the debt discount (recognized in earnings) as operating activities.
By analogy, the cumulative TRA payments should be classified as cash outflows for
financing activities up to the amount of the TRA liability initially recognized on
the date of the existing owner share/unit exchange (initially recognized in equity
on the balance sheet), and cumulative TRA payments in excess of those amounts should
be classified as cash outflows for operating activities (settlement of amounts
recognized in earnings).
The examples below illustrate the classification of TRA payments.
Example 7-19
On October 1, 20X1, Company A, a newly
formed corporation, files a Form S-1 registration statement
with the SEC to indicate its intent to publicly issue shares
(i.e., undertake an IPO). As part of becoming a public
company, A executes a series of reorganization steps to take
advantage of certain tax benefits for pass-through entities
that use an Up-C structure. Company A’s IPO closes on
November 1, 20X1, and 10 million shares of A are issued and
sold to public investors at $15 per share for proceeds of
$150 million. Company A then uses the proceeds from the IPO
to contribute $100 million to Company B, a limited
partnership operating entity, in exchange for 8,333,333
units of B as well as to purchase 4,166,667 units of B from
B’s existing owners for $50 million. Through the Up-C
structure, the continuing existing owners of B are granted
the right to exchange their B units for cash or newly issued
shares of A on a one-for-one basis.
Upon the reorganization and IPO, A is a
holding company whose sole asset is its equity interest in
B, which represents 60 percent of the economic interests in
B. Assume that the reorganization and IPO represent
common-control equity transactions under ASC 805-50 and that
A has a controlling financial interest in B under ASC 810-10
and therefore consolidates B. The remaining 40 percent of
the economic interests in B is classified as an NCI within
equity on A’s consolidated balance sheet.
As part of the negotiations for the
transactions, A enters into a TRA with the existing owners
of B. The TRA provides for the payment of cash by A to the
existing owners of B in exchange for their units of B, which
is equal to 85 percent of the net cash savings, if any, in
U.S. federal, state, and local income tax that A realizes,
or is deemed to realize, from the step-up in the tax basis
of the net assets resulting from the exchange with existing
owners of B.
Immediately after the closing of the IPO on
November 1, 20X1, certain existing owners of B exercise
their exchange rights and exchange 5 million units of B for
5 million newly issued shares of A, which accounts for the
exchange as an equity reorganization. Company A records the
following journal entries:
During the fiscal year ending December 31,
20X1, no payments are made to the existing owners of B under
the TRA. However, A is able to use certain tax benefits
subject to the TRA to reduce cash taxes paid to the IRS so
that $2 million is paid to the existing owners of B (which
exercised their exchange rights) on December 1, 20X2. No
remeasurement adjustments are recorded to the deferred tax
asset or TRA liability between November 1, 20X1, and
December 1, 20X2. In this example, the TRA liability is
initially recognized as equity on the balance sheet, with no
adjustments recorded as earnings. The entire amount of the
$2 million paid is presented as a financing activity in the
statement of cash flows.
Example 7-20
Assume the same facts as in Example
7-19 except that, as of the date of the
unit/share exchanges by the existing owners of Company B
(November 1, 20X1), Company A has a full valuation allowance
against its net deferred tax asset on the basis of
projections of future taxable income. Because of the full
valuation allowance, A does not recognize an initial net
deferred tax asset or an initial TRA liability on November
1, 20X1 (i.e., it is more likely than not that A will not
realize the future tax benefits, so the initial net deferred
tax asset is $0, which results in a TRA obligation of $0).
Company A records the following journal entries:
On December 31, 20X2, on the basis of a reassessment of
projected future taxable income, A releases its full
valuation allowance because management believes that it is
more likely than not that the future tax benefits will be
used. Company A records the adjustment to the net deferred
tax asset and TRA liability as follows:
Company A is able to use certain tax
benefits subject to the TRA to reduce cash taxes remitted to
the IRS so that $3 million is paid to the existing owners of
B (which exercised their exchange rights) on December 1,
20X4. No subsequent remeasurement adjustments are recorded
to the deferred tax asset or TRA liability between December
31, 20X2, and December 1, 20X4. In this example, the TRA
liability is initially recognized through net income or loss
in the income statement. The entire amount of the $3 million
paid is presented as an operating activity in the statement
of cash flows.
Example 7-21
Assume the same facts as in Example
7-19 except that during the fiscal year
ending December 31, 20X1, Company A records an increase in
the deferred tax asset of $5 million as follows because of
changes in the geographic mix of A’s earnings that affect
A’s tax savings:
Company A is able to use certain tax
benefits subject to the TRA to reduce cash taxes remitted to
the IRS so that $12million is paid to the existing owners of
Company B (which exercised their exchange rights) in each of
the fiscal years ending December 31, 20X2, 20X3, and 20X4.
In this example, assume that A does not record any
additional remeasurement adjustments after December 31,
20X1.
Before the TRA payments, a portion of the
TRA obligation is initially recognized through equity
(offsetting entry to APIC) and another portion of it is
recognized through earnings. The cumulative TRA payments
should be classified as cash outflows for financing
activities up to the amount of the TRA liability initially
recognized on the date of the existing owner share/unit
exchange (initially recognized through equity on the balance
sheet), and cumulative TRA payments in excess of those
amounts should be classified as cash outflows for operating
activities (settlement of amounts recognized through
earnings). Accordingly, the entire amount of the $12 million
paid in the fiscal years ending December 31, 20X2, and
December 31, 20X3, is presented as a financing activity in
the statement of cash flows because the cumulative payments
of $24 million (2 × $12,000,000) are less than the initial
TRA liability recorded in equity. For the $12 million paid
during the fiscal year ending December 31, 20X4, only $10
million remains [$34,000,000 – (2 × $12,000,000)] from the
initial TRA liability recorded in equity. The $10 million is
presented as a financing activity in the statement of cash
flows, and the $2 million in excess of the initial TRA
liability recorded in equity [(3 × $12,000,000) –
$34,000,000] is presented as an operating activity in the
statement of cash flows.