Corporation sales can be in the form of a stock sale or an asset sale. In a stock sale the new owner(s) purchase the stock of the selling owner(s), and the entity remains intact from an operational, liability, and taxation standpoint. In an asset sale it is common for the business sellers to wind down the sold business, and for the business buyers to form a new entity or merge the assets into an existing entity. An asset sale may have liability advantages for new owners regarding prior acts of the corporation and previous owner(s). However, all contracts should be reviewed with respect to whether or not the rights, duties, assets, liabilities, and payments due are enforceable under a new entity. In either sale, health of the company will need to be enumerated at the time of the offer to purchase vs. the time of closing of the business sale. Things such as key employees, facilities, cash on hand, accounts receivable or AR, accounts payable or AP, investment accounts, contracts on hand, current profitability, the current profit and loss sheet or P&L sheet, and the balance sheet in general should be reviewed.

There can be many taxation issues that should be reviewed with a CPA including retained earnings, depreciation, amortization, and how they affect tax liability in a stock sale or an asset sale. There may be tax advantages to the seller in a stock sale with capital gains tax vs. regular income tax. Conversely, there may be tax advantages to a buyer in an asset sale with renewed depreciation terms etc. By no means is this document meant to give tax or financial advice. A CPA should be consulted for tax and financial issues.

When purchasing a business as an asset sale, it would be wise to review the continuity of enterprise theory with your business lawyer / business attorney. Under the continuity of enterprise theory, a new owner(s) doing an asset purchase of an existing entity may be responsible for the liabilities of the entity from which the assets were purchased. There are exceptions and considerations that a court would likely take into account to determine if the new entity is to be considered a continuation of the selling entity. If considered a continuation of the selling entity, then the new entity would be responsible for the liabilities of the selling entity. These exceptions and considerations can be reviewed with a business lawyer / business attorney. For more information on mergers, acquisitions, and business breakups, visit the mergers, acquisitions, and business breakups page at

Business law, and merger and acquisition law or M&A law, can be somewhat unique. Whether you are searching for a merger and acquisition lawyer near me / merger and acquisition attorney near me, business lawyer near me / business attorney near me, business planning lawyer near me / business planning attorney near me, or a commercial real estate lawyer near me for leases and contracts, it is hoped that you will give consideration to working with Mentch Law. Mentch Law offers help for businesses. Setup a business lawyer consultation today.

Attorney Kirk E. Mentch, Esquire