A significant provision of the Tax Cuts and Jobs Act of 2017 capped state and local tax (SALT) deductions at $10,000. That constraint proved detrimental to many people who held an ownership interest in either a partnership or an S corporation.
State PTET elections were created to help mitigate the negative effects of the SALT-instituted cap. As of February 2023, 29 states enacted PTET elections, and several more have pending legislation to do so. At Crowe Expertise Week for private equity, our thought leaders explained some of the considerations for such elections in M&A transactions.
For sellers in M&A transactions, PTET elections can produce significant savings when large gains might be taxable either in an individual seller’s resident state or, depending on the structure of the transaction, in states where the pass-through entity has a significant apportionment.
In deemed asset sales, buyers often are expected to “gross up” the seller for their incremental tax cost, with the seller hoping to arrive at after-tax cash proceeds that are the same as if they were selling stock. Buyers often are willing to gross up the sellers in order to get a step-up in tax basis under an actual or deemed asset sale.
Using PTET elections when selling assets can provide a strong financial advantage to sellers, and depending on the circumstances and the states involved, could reduce or even eliminate the detriment to doing an asset deal for the seller.
As you consider how to take advantage of PTET elections in an M&A transaction, it’s important to keep the following key points in mind: