Late last week, Congress moved one step closer to passing the American Innovation Act of 2018, a bill that would make accounting and tax changes that would likely increase the valuation of startups in an acquisition.
The House Ways and Means committee approved a bill containing text that would improve the treatment of Net Operating Losses (NOLs) for startups. While many startup founders would probably rather watch paint dry (or build their companies) than dive into complex tax code changes, the provisions in the bill could greatly improve the ability of startups to invest in growth activity, and could drive meaningfully positive impacts to valuations, acquisition prices, capital markets participation, and venture returns.
First, though, what are NOLs? Each year, if a company loses money, it can claim the losses as a deduction off of its future taxes. Traditionally, the U.S. tax code has allowed companies to cumulatively track and carry forward NOLs to offset taxable income in future years, reducing the amount of cash required to pay taxes. These NOLs are essentially a cash-like asset, and they can be exchanged in the event that a company is acquired.
However, a long-standing IRS provision, Section 382, which was originally implemented to prevent companies with large tax appetites from acquiring those with large operating losses exclusively to reduce taxes, limits the use of NOL carry-forwards in instances of ownership change.
Currently, in cases of an ownership change, specified as a more than 50% change in the ownership of shareholders who own at least 5% of a company’s stock, the amount of taxable income for the “post-change” company that can be offset by existing NOLs cannot exceed the value of the “pre-change” company, multiplied by the long-term tax exempt rate set by the IRS.
(Yes, this is why you hire a tax attorney).
The net-net is that this provision has been particularly challenging for startups, which often trigger this limiting condition, given they frequently operate in the red through growth stages and often see frequent, sizable changes in their ownership structure due to fundraising, public offerings, and acquisitions.
The House bill would alleviate this complication by protecting these tax offsets and creating an exception to the section 382 provision for startups, allowing the application of NOLs and R&D tax credits realized in the first 3 years of operations regardless of ownership change limitations.
These changes have a number of benefits for startups. It would provide increased flexibility around early-stage financing activities and remove potential issues that could arise with capital markets activity. Additionally, with startups more easily maintaining tax offsets to reduce their cash taxes, startups would have larger cash balances to invest in growth efforts.
The protection of the NOL from ownership change limitations could also have serious impacts to company valuations and the attractiveness of startups as acquisition candidates. With acquirers better able to utilize existing tax offsets, startups should benefit from higher purchase prices from the inclusion of NOL balances in valuations, helping founder and VC returns.
The bill passed through committee through a voice vote with no objections and is now expected to be voted on by the rest of the House later this month before advancing to the Senate. The bill has 23 co-sponsors, all Republican.