Thanks to IRS tax-shelter regs imposed mid-last year, we deal lawyers were begrudgingly modifying confidentiality provisions of most agreements, including acquisition related agreements, exclude certain tax-related matters. Under those regulations, participation in a “confidential transaction” resulted in reporting and record-keeping requirements. To avoid these burdens, parties were being advised to expressly authorize disclosure of tax treatment and tax structure.

GOOD NEWS!! On December 29, 2003, the IRS issued new regulations that significantly change what is considered to be a “confidential transaction” for these purposes. Under the new regulations, the definition of a “confidential transaction” is limited to transactions in which an advisor who is paid a significant fee places a limitation on disclosure of the tax treatment or tax structure of the transaction. Confidentiality obligations that are imposed solely by the parties to a transaction will not cause a transaction to be a “confidential transaction” for purposes of these regulations. There is some uncertainty about how these new rules will be applied to transactions in which a participant is both an advisor and a principal, such as certain financial transactions in which a commercial bank or investment bank is both an advisor and a party to the transaction.

These new regulations are effective for transactions entered into on or after December 29, 2003, and they may also be relied on for transactions entered into on or after January 1, 2003 and before December 29, 2003. Accordingly, the tax confidentiality carve-out language that had become standard in commercial agreements is generally not needed. In addition, the failure to include the language (or the inclusion of ineffective language) in prior agreements should not have any adverse consequences.

Thanks to Vicki Martin, tax partner at Haynes and Boone, for this guest blog.

With the dawn of a new year Wilson and I find ourselves in the middle of preparing the next installment (this year’s being the 4th…my how time flies when you’re reviewing documents) of our annual M&A Deal Points Study. As such, we would like to take this opportunity to solicit suggestions from you as to any particular area(s) you would like for us to review and include as part of this year’s Study. Those familiar with the Study will remember that we examine acquisition agreements relating to public company acquisitions of private companies with transaction values of between $25M and $150M (pulled from the LiveEDGAR M&A Database). For those of you who are not aware of the Study (which we lovingly refer to as the “BS Detector for the M&A Sector”) and would like a complimentary (i.e., FREE) copy, please email Wilson or me (wilson.chu@haynesboone.com or lglasgow@gardere.com ).

We look forward to hearing from you!