Taxation of Earnouts

In broad terms, a standard earnout arrangement is one where a vendor sells their business and receives for that sale consideration which includes a right to receive a future amount both contingent upon and calculated with reference to the future economic performance of the business sold for a defined period following the sale.  Earnouts might also be referable to non-economic performance indicators, or work in reverse, whereby a vendor receives a gross amount but is under an obligation to repay to the purchaser an amount if, for example, the future economic performance of the business fails to meet agreed minimum thresholds.

As earnouts, from a legal perspective, are distinguishable from installment sales (pursuant to which a vendor receives a right to a future sum of money in respect of the sale that is both certain as to amount and as to its receipt), the conventional taxation treatment of them has been problematic, inequitable and, as to the ATO’s attempts to provide a level of clarity to the provisions’ practical operation, uncertain.  Consequently, whilst their use might assist to facilitate business sales where there is uncertainty in the value, such use has been inhibited by taxation considerations.

In response to the concerns, after almost 10 years of promise but in reality legislative vacuum, exposure draft legislation was published by Treasury in April last year, with final legislation passed in February this year introducing new Subdivision 118-I with effect back to this April 2015 date.  Subdivision 118-I^[1] seeks to legislatively adopt for qualifying arrangements a ‘look-through’ approach to the taxation of earnout payments pursuant to which, in broad terms, capital gains (losses) related to the creation of the earnout right are disregarded with the financial benefit under the earnout right instead being attributed (and taxed) as part of the underlying original CGT event happening to the business assets.

This note is not intended to explore in any depth the detailed operation of these provisions, and it is assumed that a broad understanding of the provisions operation is known.^[2] Instead, this is limited to the special rules when determining the “net value of the CGT assets” under the small business CGT concession in Div 152, in circumstances where there is an earnout right.  These rules were only inserted into the Bill after the exposure draft was published and on which consultation was sought.

Access to the Small Business CGT Concessions – the Maximum Net Asset Value Test

It is one of the basic preconditions of the small business CGT concessions, under Div 152, that the taxpayer satisfy the “maximum net asset value test” under s 152-15.  This test requires a taxpayer to value their CGT assets, together with the CGT assets of any entities connected with them (or are affiliates of, or connected with affiliates of theirs).  Necessarily therefore, this includes CGT assets that are an entity’s earnout rights, because those assets are proprietary choses in action.

That this is required is notionally inconsistent with one of the key underlying purposes of the look-through earnout provisions, being to prevent taxpayer’s from having to problematically value the earnout rights received by them.  That value may indeed be crucial in determining whether a taxpayer is within or over the $6 million threshold.

Following submissions made after the release of the Exposure Draft, Treasury introduced specific provisions to, amongst other things, allow taxpayers when testing whether they satisfy the maximum net asset value test, to choose to take into account any financial benefits that may have been provided or received under the look-through earnout right after that time.  However, this choice is only available to a taxpayer after the last of the financial benefits under the earnout right has been paid (or able to be paid).  Therefore:

• the choice can only be made at the end of the earnout period and not at the time when the taxpayer first lodges their original income tax return for the income year in which the business assets were sold and the earnout right acquired;
• the choice will need to be made by retrospectively amending the taxpayer’s original income tax return for the income year following the conclusion of the earnout period; and
• the taxpayer, when first lodging their income tax return for the year in which the business assets were sold, if they seek to apply any of the small business concessions, will need to determine their entitlement to those concessions (including the passing of the maximum net asset value test) by adopting a value for the earnout right.

Consequently, it may be that if a taxpayer is, for example, close to failing the maximum net asset value test but, after valuing their earnout right, they consider they satisfy the test and access the concessions (such as the small business reduction and retirement exemption), but that value is less than the total financial benefits subsequently received by them on satisfaction of the earnout right such that the maximum net asset value test is failed, then:

• the taxpayer on amending their income tax return and increasing the capital proceeds by the amount of the financial benefits received will not be entitled to small business relief; and
• by reason of that amendment have both an income tax shortfall and, if the taxpayer has made contributions to superannuation in order to access the small business retirement concession, a liability for excess non-concessional contributions tax. Unfortunately, with respect to the latter, although the new provisions dealing with earnouts allow a “choice” to be remade, a taxpayer cannot undo actions they have taken in the period.  If a taxpayer has indeed made contributions to superannuation in order to access the retirement concession, they cannot withdraw these contributions now that the concession is no longer available.

Of significance, with respect to both the tax shortfall and possible excess non-concessional contributions tax, is that, whilst protection from the shortfall interest charge is available when that shortfall arises as a result of the increase in the capital proceeds a vendor taxpayer subsequently receives under the earnout,^[3] that protection does not extend to situations where a taxpayer might have in their original year accessed a concession for which they are ultimately not eligible, such as in the present context where the small business tax concessions are not unavailable to the taxpayer because of an increase in their capital proceeds, but rather because they fail the prerequisite eligibility conditions because the value of the net assets exceed the requisite threshold.

In practical terms therefore, taxpayers who, with their connected entities and affiliates, have worth close to the $6,000,000 threshold and who seek to rely on the small business concessions, need to pay attention to their choice of two competing alternatives:

1. not to claim the small business concessions in their original return for the income year choosing to ‘wait it out’.

Then, at the end of the earnout period, the taxpayer with the benefit of being able to remake their choices:

• make a hindsight assessment as to whether they have satisfied the maximum net asset value test noting that they can at this time choose to adopt, as the value of the earnout right, an amount equal to the financial benefits received under the earnout right; and
• either:
  • if eligible to claim the small business concessions; make a choice to do so and at that time make their contribution to superannuation, and (it would be expected in most cases) receive a refund for overpayment of tax (albeit without the benefit of any interest on that overpayment); or
  • if not eligible to claim the small business concessions, breathe a sigh of relief that they didn’t prematurely claim them and that they have no additional liability for shortfall interest charge on their increased income tax liability or excess non-concessional contributions tax.

2. zealously claim the small business concessions in their original return for the income year adopting a value for the earnout right which puts the net asset value less than the threshold.

Then, at the end of the earnout period the taxpayer:

• upon receipt of the final earnout payment, reassesses whether they have satisfied the maximum net asset value test given the then known value of the earnout right; and
• either:
  • if eligible to claim the small business concessions; breathe a sigh of relief that they were correct in their original position, and they are able to additionally claim the concessions with respect to their final financial benefit; or
  • if not eligible to claim the small business concessions, have to amend their assessment, pay a tax shortfall amount without the benefit of the concessions that they had previously claimed plus penalty shortfall interest and be unable to undo their contribution into superannuation, and potentially bear excess non-concessional contributions tax.

Not an easy choice!