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Disposable Personal Goodwill, Frosty the Snowman, and Martin Ice Cream All Melt Away in the Bright Sunlight of Analysis

45 Pages Posted: 16 Dec 2011 Last revised: 20 Feb 2015

Bret Wells

University of Houston Law Center

Craig M Bergez

Porter Hedges LLP; University of Houston Law Center

Date Written: December 14, 2011

Abstract

The current rage in dispositional tax planning for closely-held C corporations is to bifurcate the sale transaction and to argue that the shareholder sold “personal goodwill” that is owned at the shareholder level. This planning is premised on the position that certain goodwill associated with the target C corporation can be, and is in fact, owned (for tax purposes) by one or more shareholders. If the “personal goodwill” is in fact owned by the selling shareholders and can be sold by the selling shareholders to the buyer, then the disposition of this “personal goodwill” is not subject to corporate-level taxation.

Although this planning has garnered much attention and is being marketed by many in the tax community as an innovative solution to avoid corporate-level taxes, the authors believe that this tax planning technique is unsustainable for several reasons set forth in the article. The article analyzes this technique in terms of existing transfer pricing regulations, the duty of consistency doctrine, existing case law involving goodwill (including the Tax Court’s decision in Martin Ice Cream).

Keywords: Martin Ice Cream, intangibles, marketing intangibles, goodwill, personal goodwill, residual goodwill

Suggested Citation

Wells, Bret and Bergez, Craig M, Disposable Personal Goodwill, Frosty the Snowman, and Martin Ice Cream All Melt Away in the Bright Sunlight of Analysis (December 14, 2011). 91 Nebraska Law Review 170 (2012); U of Houston Law Center No. 2011-A-10. Available at SSRN: https://ssrn.com/abstract=1972444

Bret Wells (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

Craig M. Bergez

Porter Hedges LLP ( email )

1000 Main St.
Houston, TX 77002
United States

HOME PAGE: http://www.porterhedges.com

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

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