ALI-ABA Course of Study Representing the Growing Business: Tax, Corporate, Securities, and Accounting Issues

Transcription

1 PROGRAM FACULTY PARTICIPANTS FACULTY BIOGRAPHIES STUDY MATERIAL 1. Business Planning Case Study By Thomas W. Van Dyke ALI-ABA Course of Study Representing the Growing Business: Tax, Corporate, Securities, and Accounting Issues February 21-23, 2008 Pasadena, California TABLE OF CONTENTS Page xi 2. Ethics Materials 7 By Michelle M. Matiski Table of Contents 8 Study Material 9 3. ABA Model Joint Venture Agreement: Preliminary Consideratons -- Antitrust and Choice of Entity 4. ABA Model Joint Venture Agreement: Section 1 - Definitions and Rules of Construction 5. Federal Income Tax Considerations in the Choice of Business Entity By Roger M. Ritt 6. Comparing the Forms of Business By Michael Eagan 7. State Tax Treatment of Limited Liability Companies and Limited Liability Partnerships By Bruce P. Ely, Christopher R. Grissom, and Matthew S. Houser 8. Federal Tax Update By Stephen L. Kadish and Matthew F. Kadish 9. Taxation of Partner Compensation: FICA, SECA, or Nothing By James B. Sowell 10. Paradise Lost: The Rise (and further rise) of MILTON [the More Likely Than Not (MLTN) Standard] -- Tax Positions, Preparer Penalties and Circular 230 By Matthew F. Kadish 11. ABA Model Joint Venture Agreement: Checklist for Joint Venture 389 xiii xv vii

2 11. ABA Model Joint Venture Agreement: Checklist for Joint Venture Agreements 12. Limited Liability Companies Formation Checklist By Thomas W. Van Dyke 13. ABA Model Joint Venture Agreement: Article 4 -- Allocation of Profits and Losses; Distributions 14. ABA Model Joint Venture Agreement: Article 5 -- Management 15. ABA Model Joint Venture Agreement: Article 8 -- Dissolution and Other Rights Upon Default 16. Entity Economics By Thomas W. Van Dyke 17. License Agreement By Anthony J. Marks 18. Proposed Rules on Treatment of Compensatory Partnership Interests By Steven R. Schneider and Brian J. O'Connor 19. Employee Proprietary Information and Inventions Agreement By Michelle M. Matiski 20. Employment Agreement By Michelle M. Matiski Overview of Deferred Compensation Arrangements under Section 409A 565 By Andrea I. O'Brien Table of Contents 567 Study Outline 569 Presentation Slides FIN 48 Overview: Accounting for Uncertainty in Income Taxes By Michael Eagan 23. Diagrams on Uses of ESOPs 24. An Overview of U.S. Franchise Laws By Anthony J. Marks 25. Latest Developments in Sophisticated Exempt Offerings By Leigh Walton and Chambre Malone 26. Venture Capital Term Sheet By Michelle M. Matiski 27. Diagrams on Midlife Growth and Restructuring I.R.C. Section 351 I.R.S. Regulations 687 viii

3 28. I.R.C. Section 351 I.R.S. Regulations Submitted by Stephen L. Kadish Planning for the Principal Owner: Deciding Upon the Appropriate Income 699 Tax Planning and Estate Planning Techniques for the Principal Owner By Martin J. Kalb and Jerome M. Hesch Table of Contents 701 Study Outline The M&A Process: A Practial Guide for the Business Lawyer -- Chapter 5: Planning for a Sale 31. The M&A Process: A Practical Guide for the Business Lawyer -- Chapter 6: Embarking on the Sale Process Submitted by Thomas W. Dan Dyke 32. Preliminary Due Diligence Request List By Martin J. Kalb 33. Mutual Non-Disclosure Agreement By Michelle M. Matiski 34. Acquisition Letter of Intent By Michelle M. Matiski Stock Purchase Agreement (Sample) 857 By Martin J. Kalb Table of Contents 859 Stock Purchase Agreement Diagrams on Taxable and Tax-Free Acquisitions By Roger M. Ritt 37. Diagrams on Mergers Using Disregarded Entities By Roger M. Ritt 38. Taxable Acquisitions of S Corporations By John S. Harper and William D. Klein Limited Liability Companies Classified as S Corporations - Part II 961 By Stephen R. Looney and Ronald A. Levitt Appendix A: Comparison of the Alabama and Delaware LLC Acts (Oct. 2006) 998 Appendix B: LLC Operating Agreement State Law Conversion - Section 368(a)(1)(F): Avoidance of Contingent Liabilities By Thomas W. Van Dyke 41. I.R.S. Form 8594 Submitted by Stephen L. Kadish Overview of Employee Benefits Considerations in Mergers and 1049 ix

4 42. Overview of Employee Benefits Considerations in Mergers and Acquisitions By Andrea I. O'Brien 43. Supplement Uses of ESOPs 44. Supplement Midlife Growth and Restructuring 45. Supplement Taxable Mergers and Tax-Free Reorganizations 46. Supplement Two-Step Mergers Using Disregarded Entities 47. Supplement State Law Conversion-Section 368(a)(1)(F) Avoidance of Contigent Liabilities 48. Supplement Franchising: An Overview By Anthony J. Marks x

5 ALI-ABA Course of Study Representing the Growing Business: Tax, Corporate, Securities, and Accounting Issues February 21-23, 2008 Pasadena, California PROGRAM Thursday, February 21, :00 a.m. Registration and Continental Breakfast 9:00 a.m. Introductory Remarks FORMATION OF BUSINESS ENTITY: CHOICE OF ENTITY, STRUCTURING JOINT VENTURES, PLANNING AND PREPARATION OF ORGANIZATIONAL DOCUMENTS AND AGREEMENTS FOR THE ENTITIES; INITIAL CAPITALIZATION 9:10 a.m. Description of Problem 1; Ethical Considerations of Multiple Representation 9:30 a.m. Comparing Non-Tax Aspects of Various Entity Forms 10:00 a.m. Comparing Tax Aspects of the Various Entity Forms and Business Agreements 10:45 a.m. Networking Break 11:00 a.m. Panel Discussion: Choice of Entity for Problem 1 11:15 a.m. Key Issues for Joint Ventures and Non-Tax and Tax Aspects of Limited Liability Company and Partnership Agreements 12:00 noon Tax Problems and Planning Solutions for Pass-Through and Disregarded Entities; Employment Tax Aspects 12:30 p.m. Lunch Break 1:45 p.m. Non-Tax and Tax Aspects of Entity Formation 2:45 p.m. Designing Other Significant Agreements 3:30 p.m. Networking Break 3:45 p.m. Compensating Employees 4:45 p.m. Employment Agreements 5:15 p.m. Ethical Considerations 5:35 p.m. Questions and Answers 5:45 p.m. Adjournment for the Day Friday, February 22, :00 a.m. Continental Breakfast MID-LIFE OF THE ENTITY: EMPLOYEE BENEFIT STRUCTURING AND PLANNING; FINANCING EXPANSION; SUCCESSION PLANNING FOR THE ENTITY AND THE EQUITY OWNERS; INCORPORATING THE LIMITED LIABILITY COMPANY 8:30 a.m. Description of Problem 2; Annual Review of Entity; Ethical Considerations 8:50 a.m. Employee Benefits 9:40 a.m. Comparison of Types of Financial Statements 10:00 a.m. Financing Expansion 10:30 a.m. Networking Break 10:45 a.m. Financing Expansion (cont.) xi

6 11:30 a.m. Planning for Business Succession 12:30 p.m. Lunch Break 1:45 p.m. Planning for the Principle Owner 3:00 p.m. Tax Aspects of Incorporating the Limited Liability Company 3:15 p.m. Networking Break SELLING THE BUSINESS ENTITY: TAX ASPECTS 3:30 p.m. Tax Planning for Taxable and Non-Taxable Business Acquisitions 4:45 p.m. Questions and Answers 5:00 p.m. Adjournment for the Day Saturday, February 23, :00 a.m. Continental Breakfast 8:30 a.m. Description of Problem 3 8:45 a.m. The Merger and Acquisition Process 10:30 a.m. Networking Break 10:45 a.m. The Merger and Acquisition Process, Including a Negotiation 12:15 p.m. Questions and Answers 12:30 p.m. Adjournment xii

7 ALI-ABA Course of Study Representing the Growing Business: Tax, Corporate, Securities, and Accounting Issues February 21-23, 2008 Pasadena, California PLANNING CHAIRS Michael R. Flyer, Esquire Venable LLP 575 7th Street, NW Washington, DC Thomas W. Van Dyke, Esquire Bryan Cave LLP One Kansas City Place 1200 Main Street, Suite 3500 Kansas City, MO FACULTY Michael Eagan, CPA Beer & Cutler, PLLC 8219 Leesburg Pike, Suite 800 Vienna, VA Stephen L. Kadish, Esquire Kadish, Hinkel & Weibel, L.P.A E Ninth Street, Suite 2112 Cleveland, OH Martin J. Kalb, Esquire Greenberg Traurig, P.A Brickell Avenue Miami, FL Thomas S. Loo, Esquire Greenberg Traurig LLP 2450 Colorado Avenue, Suite 400E Santa Monica, CA Anthony J. Marks, Esquire Bryan Cave LLP 1 Metropolitan Square, Suite North Broadway Santa Monica, CA Michelle M. Matiski, Esquire Senior Vice President, Legal Affairs Schaller Anderson, Inc East Cotton Center Boulevard Building 1, Suite 200 Phoenix, AZ Andrea I. O'Brien, Esquire Venable LLP One Church Street, Suite 500 Rockville, MD Roger M. Ritt, Esquire Wilmer Cutler Pickering Hale and Dorr LLP 60 State Street Boston, MA xiii

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9 Planning Co-Chairs FACULTY BIOGRAPHIES Michael R. Flyer, Washington, D.C. Venable LLP A.B., J.D., University of Michigan Adjunct Professor: George Washington University National Law Center ( ) Government and Public Service: Section Chief, Corporate Reorganization Branch, Internal Revenue Service Memberships: American Bar Association (Section of Taxation, Committee on Corporate Tax); District of Columbia Bar (Division of Taxation, former member of Steering Committee) Thomas W. Van Dyke, Kansas City, Missouri Bryan Cave LLP B.A., University of Kansas; J.D., University of Michigan Honors: Lawdragon 500 Leading Lawyers in America (2007 Finalist); Lawdragon 500 Leading Dealmakers (2007); Chambers USA 2007; Missouri/Kansas Super Lawyers 2007; The Best Lawyers in America 2008 Government and Public Service: Securities and Exchange Commission ( ) Memberships: American Law Institute; American Bar Association; Missouri Bar Association (Past Chair, Corporate Law Committee); Kansas Bar Association; Kansas City Bar Association; Johnson County Bar Association Faculty Michael Eagan, CPA, Vienna, Virginia Beer & Cutler, PLLC B.S. (Accounting), George Mason University Certified Public Accountant Prior Affiliations: Corporate Controller and Tax Director, PPD, Inc. ( ); Corporate Controller, PPA International, Inc. ( ); Arthur Andersen (Senior Staff, ; Senior Manager, ); Senior Manager, Ernst & Young ( ) Memberships: American Institute of Certified Public Accountants; Greater Washington Society of Certified Public Accountants; Leadership Fairfax Stephen L. Kadish, Cleveland, Ohio Kadish, Hinkel & Weibel, L.P.A. B.A., Williams College; LL.M., Georgetown University Law Center; LL.B., Columbia University School of Law Honors: Named a leading tax attorney in the City of Cleveland for over 40 years; The Best Lawyers in America (1983-present); "Ohio Super Lawyers" and in INSIDE BUSINESS magazine (from inception-present) Fellow, American College of Tax Counsel Government and Public Service: Law clerk to the Honorable Russell E. Train (U.S. Tax Court, ) Memberships: Cleveland Bar Association (former Chair of Tax Section); Cuyahoga xv

10 Memberships: Cleveland Bar Association (former Chair of Tax Section); Cuyahoga County Bar Association (former Chair of Tax Section); Estate Planning Council of Cleveland; Tax Club of Cleveland (former Board Member & President); City Club; Ohio State Bar Association; American Bar Association (Member, Tax Section) Martin J. Kalb, Miami, Florida Greenberg Traurig, P.A. B.S., J.D., University of Connecticut; LL.M. (Taxation), Georgetown University Law Center Former Adjunct Professor: University of Miami School of Law Honors: Listed in Super Lawyers (2006, 2007); Top Lawyers in South Florida (SOUTH FLORIDA LEGAL GUIDE, ) Government and Public Service: Office of the Chief Counsel, Internal Revenue Service ( ) Prior Affiliations: Vice President and General Counsel, UniCapital Corp.; Akerman Senterfitt Memberships: American Bar Association (Section of Taxation); Florida Bar Association; Dade County Bar Association; Dade Community Foundation (Board of Directors, ) Thomas S. Loo, Santa Monica, California Greenberg Traurig LLP B.S., J.D., University of Southern California Adjunct Professor, University of Southern California Law School ( ) Honors: Selected by SUPER LAWYERS magazine (2006 and 2007); Listed in "Best Lawyers in America" (2007 and 2008) Memberships: California State Bar Association; Los Angeles County Bar Association; Southern California Chinese Lawyers Association; National Association of Pacific Asian Bar Association; U.S.C. Law Alumni Association; Legion Lex; Accounting Circle; Chinatown Service Center, Los Angeles, California, (Board of Directors, , Chair, ); Rotary Club of Santa Monica (Director and Officer, ); Law Revision Commission, State of California ( ); Santa Monica Chamber of Commerce (Director, ); Center for Healthy Aging (Director, 2007); Director, Mattel, Inc. (Director, ); Vanderbilt Funds (Director, ); Teknekron Group of Companies (1989-present); Institute for Corporate Counsel (1990-present); TENERA, Inc. ( ) Publications Include: The Regulation D Exemption, 1 SEC. L. TECHNIQUES (Matthew Bender & Co.); State Court Determinations in Tax Litigation: A New Era, 41 SO. CAL. L. REV. (1986); The 'Fairness Hearing' Exemption (Co-author), 18 SEC. & COMM. REG. 73 (March 1985); The SEC's New Regulation D (Co-author), 5 L.A. LAW. (Sept. 1982); Section 25102(f): California's New Counterpart to Regulation D (Co-author), L.A. LAW. (Oct. 1982) Anthony J. Marks, Santa Monica, California xvi

11 Anthony J. Marks, Santa Monica, California Bryan Cave LLP B.S., California Polytechnic University; J.D., Loyola Law School Honors: Southern California Super Lawyers Rising Star (2007) Memberships: American Bar Association (Forum on Franchising); State Bar of California (Chair, Franchise Law Committee, Business Law Section) Publications Include: FTC Franchise Rule 2.0, CONSUMER PROTECTION UPDATE, Vol. 14 No.1 (American Bar Association, Spring 2007); Wave Goodbye to Jury Waivers, IJN FRANCHISING L. (Sept. 2005); Precedent Lives: California Strikes Down Pre-Dispute Waivers of Jury Trials, A NDREWS LITIG. REP.(2005); Contributing Professional BLACK S LAW DICTIONARY, 9th Ed. (2005); One Small Step For the Federal Trade Commission, One Giant Leap for the State of California, INT L L. OFFICE, (Sept. 2004); Use of Non-U.S. GAAP Financial Statements in United States Franchise Offerings, INT L. OFFICE (June 2004); A Two Headed Approach to Advertising (Co-Author), FRANCHISE UPDATE, 3rd Quarter (2002); Controlling Your Brand in an Electronic Age (Co-Author), FRANCHISING WORLD (July/August 2002); Preparing to Sell Your Business in Today s Marketplace (Co-Author), L.A. BUS. J. (July 30, 2001); FRANCHISING AND THE INTERNET: SELECTED LEGAL ISSUES (Co-Author)(2000); Coping with COPPA (Co-Author), L.A. BUS. J. (July 31, 2000); Best Practices: Disclosure an E-Signing for Franchisors (Co-Author), FRANCHISE UPDATE (Oct./Nov. 2000); Key Points for Drafting Your Web Monitoring and Intranet Agreements with Franchisees, FRANCHISE UPDATE (Annual 2000); A House of Cards: Has the Federal Government Succeeded in Regulating Indian Gaming?, 17 LOY. L. A. ENT. L. J. 157 (1996) Michelle M. Matiski, Phoenix, Arizona Senior Vice President, Legal Affairs, Schaller Anderson, Inc. B.A., University of Minnesota; J.D., Northwestern University School of Law Honors: Best Lawyers in America ( ) Prior Affiliations: Osborn Maledon, P.A. Memberships: State Bar of Arizona (Original Subcommittee on Legal Opinions; Former Vice Chair, Subcommittee on Revising the Arizona Corporate Code; Former Chair, Business Law Section); Center Dance Ensemble (Board of Directors and Vice President); St. Joseph s Hospital Foundation (Board of Directors); Community Council (Former President); Phoenix Body Positive HIV/AIDS Research and Resource Center Foundation (Treasurer); Lawyers for the Phoenix Symphony (Past Steering Committee member Publications Include: ARIZONA LEGAL FORMS BUSINESS ORGANIZATIONS (CORPORATIONS)(Co-Author)(West Group, 2001, 2002) Andrea I. O'Brien, Rockville, Maryland Venable LLP B.A., Notre Dame; J.D., Georgetown Memberships: American Bar Association (Section of Taxation, Employee Benefits Committee); District of Columbia Bar (Employee Benefits Committee); Maryland Bar Association; Montgomery County Bar Association; DC Women s Bar Association; ESOP Association xvii

12 Roger M. Ritt, Boston, Massachusetts Wilmer Cutler Pickering Hale and Dorr LLP B.A., University of Pennsylvania; J.D., LL.M., Boston University School of Law Adjunct Professor, Boston University School of Law Graduate Tax Program ( ) Honors: "Top 500 Leading Dealmakers" (LAWDRAGON, 2007); New England Super Lawyer" (formerly "Massachusetts Super Lawyer")(BOSTON MAGAZINE, ); "Top 100 Massachusetts Super Lawyer" (2004); Listed in The Best Lawyers in America (CHAMBERS USA: AMERICA S LEADING LAWYERS FOR BUSINESS); Who's Who in America; Who's Who in the World; Who's Who in American Law; Who's Who in Finance and Industry; and Who's Who in the East Memberships: American Bar Association, Section of Taxation (Chair, Carryovers Subcommittee of the Committee on Corporate Tax; member of the Committees on Partnership Tax and Individual Investments and Workouts); Executive Committee of the Federal Tax Institute of New England xviii