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The Seller’s Playbook

Rule 24 of 34 · Part 4, The Deal Terms

Never give tax value away for free.

Chapter 24: The 338(h)(10) Election

Why does the buyer want a 338(h)(10), and what does it cost me?

What sellers often miss

Many owners assume tax-related provisions are technical matters best left entirely to attorneys and accountants. While expert advice is essential, sellers should understand the economic consequences of major tax decisions. A buyer requesting a specific tax election is rarely doing so for administrative convenience alone. The request is usually motivated by value.

The takeaway

Whenever a buyer requests a tax election, ask a simple question: Who benefits, and how much is that benefit worth? Understanding the answer can help prevent you from giving away value that could otherwise be negotiated as part of the transaction. The most successful sellers treat tax benefits the same way they treat any other valuable asset: they recognize them, quantify them, and negotiate them accordingly.

Figure from the book · Chapter 24
Figure from The 338(h)(10) Election. One transaction, treated as a stock sale legally and an asset sale for tax.
One transaction, treated as a stock sale legally and an asset sale for tax.

Illustrative, not your deal. Where the book uses dollar figures, they are there to show how something works, not to describe your business. Your banker, your accountant, and your attorney will put real numbers to your own situation. Full note.

Terms this chapter uses

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