February 26, 2010

NOTE: THIS ARTICLE WAS CO-AUTHORED BY 
CHIRAG N. PATEL, ESQ. , SENIOR ASSOCIATE WITH SHAH & ASSOCIATES, P.C. 

Whether our clients are purchasing an existing business under a newly formed entity (corporation, LLC or other) or are purchasing the ownership interests (Stock or Membership units) of an existing company, both parties to a contract are typically eager to Close the transaction on the anticipated settlement date after all remaining contract contingencies have been satisfied. Among the myriad of liabilities from which we need to protect our Buyer-client is that of back owed Sales & Use taxes.

How can we protect our Buyer-client from liabilities arising out of the Seller’s failure to pay sufficient sales & use taxes? 

The answer is by filing a timely Bulk Sales notification with the State of New Jersey Division of Taxation. Per the New Jersey Bulk Sales Act, the Division of Taxation requires that when a business is being sold or dissolved, the Bulk Sales Section must be notified and given the opportunity to determine whether any taxes are due and owing to the State. Recently, the State of New Jersey has made clear that they intend the statute to apply not only to transfers of business assets, but also to the sale of real estate if the real estate is the principal asset of the seller or if the primary purpose of the real estate is to support a business. The statute also applies to any transfer, regardless of the consideration or dollar amount. This means that even if the transfer is for no consideration, the Buyer and Seller must comply with the State mandated bulk sale notification procedures.

What are the steps for gaining protection? 

To protect the Buyer from unknowingly assuming the Seller’s tax liability, adhering to the following Bulk Sale Transfer Notice Requirements is imperative prior to, on the day of, and after Closing:

1. The Seller, with the assistance of the Seller’s accountant, must prepare and deliver to the Buyer the Asset Transfer Tax Declaration, which will assist the State in determining the estimated tax on the gain from the transfer of assets.
2. The Buyer, with the assistance of the Buyer’s attorney, must prepare a Notification of Sale, Transfer or Assignment in Bulk, which, along with a copy of the fully executed Contract, will be forwarded to the Division of Taxation at least ten (10) days prior to Closing.
3. Within ten (10) days following receipt of the documents, the Division of Taxation will notify the Buyer’s attorney of any possible claim for state taxes and specify the amount to be held from the Seller’s proceeds and escrowed by the Buyer’s attorney on the day of Closing. This amount may include any underpayments to the State, unfiled returns and any fixed or pending audit assessments. In the event no taxes are owed to the State, the Division of Taxation will issue a Letter of Clearance.
4. After Closing, any amounts owed to the State will be paid out of the escrow account. Once all state taxes have been paid, the Division of Taxation will authorize the release of the remaining funds in escrow to the Seller by issuing a Letter of Clearance.

What are the ramifications of not complying with the Notice requirement? 

The statute containing these requirements, N.J.S.A. 54:32B-22(c), provides that if the State is not notified of the transfer, in addition to being subject to the liabilities and remedies imposed under the provisions of the uniform commercial code, Title 12A of the Revised Statutes of New Jersey, the Buyer “shall be PERSONALLY liable for the payment to the State of any such taxes theretofore or thereafter determined to be due to the State from the seller, transferor or assignor, and such liability may be assessed and enforced in the same manner as the liability for tax under this act.” Conclusion Prior to accepting the transfer of any business assets or real estate, the Buyer and Seller should confirm with their respective attorneys that all the above requirements are applicable and satisfied, so that no unexpected liabilities result from the transfer.

(Note that New York & Pennsylvania, states in which we maintain active practices, have similar means of protections, but are procedurally different.)