Corporate Tax Planning: The Refashioning of Earnouts

Abstract

This article discusses the Canadian income tax treatment of earnouts, primarily as they relate to share-based sale transactions. The article begins by providing an overview of the commercial environment driving the earnout structure in recent transactions and the resulting tax impact. It then examines the legislative history and income tax treatment of earnouts, including the cost recovery method and the most recent view of the Canada Revenue Agency, followed by a comparison of royalties with earnouts. Next, the definition and valuation of goodwill are explored in relation to the impact of goodwill on the characterization of earnouts. The article then provides an overview of a reverse earnout as an alternative to a standard earnout structure, its tax implications, and the most recent court case on a reverse earnout. Finally, the article discusses the nuances of the tax treatment of earnout payments to purchasers after the acquired property to which the earnout relates has disappeared or has been disposed of.