VC Funds and Tax

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Good news from a tax planning perspective as we head into the new year.  The Protecting Americans from Tax Hikes (PATH) Act of 2015, which was enacted into law on December 18, 2015, retroactively extends certain provisions of the Internal Revenue Code (IRC) that had previously expired.  Of particular interest to our readers, the PATH Act permanently extends the 100% capital gains exclusion for “qualified small business stock” (also referred to as QSBS) initially acquired after September 27, 2010.

As a quick refresher, the QSBS tax exemption was originally enacted…
Continue Reading 100% exclusion for Federal capital gains tax on the sale of QSBS permanently extended

Perkins, Rachel_Headshot.jpgCONTRIBUTED BY
Rachel M. Perkins
rachel.perkins@dlapiper.com

Startups and public companies alike often use equity to help attract, retain and incentivize talented employees and other service providers. The different forms of awards have proliferated in the past several years, though, leading to a confusing “alphabet soup” of jargon that often frustrates both the recipients of grants and the company itself. Many angel and venture capital investors continue to prefer seeing stock options and restricted stock awards in their portfolio private companies, as these are the most common and simplest to administer. Other forms of awards can also be challenging for startups because there is no public market to easily set a contemporaneous per share stock price or provide liquidity for the award recipients. However, while stock options—both nonstatutory (NSO) and incentive (ISO)—and restricted stock awards (RSAs) remain the most popular and most recommended form of equity compensation, other forms—such as restricted stock units (RSUs) and stock appreciation rights (SARs)—are gaining popularity in certain markets, and we are being asked more and more frequently about these alternatives.

Adding to our previous discussions of adopting your first equity incentive plan, NSOs vs. ISOs and options for issuing employee equity in LLCs, we have put together the below quick reference charts, which are intended as high-level summaries of the most common equity incentive awards as well as some of the other less common awards available.  The following charts highlight some of the key features and tax consequences of each type of award, as well as some of the potential drawbacks associated with each:
Continue Reading Equity Compensation Alphabet Soup – ISO, NSO, RSA, RSU and more

CB Insights recently released its Pacific Northwest Investment and Exit Report, which analyzed private company investment and exit activity over the past five years. The report collected data from all activity sources, including venture capital, private equity, strategic corporate investments, corporate venture investors, angels, incubators and accelerators. Here are a few highlights from the report:

  • Since 2009, the number of deals closed per year has increased 144% (195 deals in 2009 vs. 475 deals in 2013), with the total annual investment amount increasing 81% ($780 million dollars invested in

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Continue Reading Pacific Northwest Investment and Exit Report

Earlier this month the Cayman Islands passed new legislation revising its existing Exempted Limited Partnership Law.  The new legislation, the Exempted Limited Partnership Law 2014, replaces the existing legislation in its entirety and has a primary objective of providing Cayman Islands partnerships with more flexibility in a number of areas and generally bringing Cayman Islands law into closer conformity with existing laws in more familiar jursidictions such as Delaware.  This is welcome news to both private fund investors and sponsors.  A detailed review of the changes enacted by the new legislation will follow in a future post on The Venture Alley, but here is a quick summary of some of the more material changes contained in the new legislation:

  • Allows foreign limited partnerships to serve as general partners of Cayman Islands exempted limited partnerships (previously funds typically had to set up either a Cayman Islands exempted limited partnership or Cayman Islands exempted company to serve as the general partner);
  • No longer requires an exempted limited partnership’s register of limited partners to reflect contributions by and distributions to limited partners, but rather only the names and addresses of limited partners (which will serve to increase the privacy of limited partners who are invested in Cayman Island investment funds);
  • No longer requires the limited partnership agreement to be executed as a deed and witnessed in order to make valid a power of attorney granted therein (with this change being retroactive so as to validate any power of attorney granted prior to the passage of the new legislation); and
  • Simplifies the admission process for new limited partners in connection with a transfer of interest in an exempted limited partnership.
    Continue Reading Cayman Islands Revise Exempted Limited Partnership Law and Pass New Legislation Allowing Enforcement of Contracts by Third Party Beneficiaries

Article prepared by and republished courtesy of our colleagues Joseph Langhirt and David Plewa; originally published here: http://www.dlapiper.com/en/us/insights/publications/2014/04/bitcoin-is-property-not-currency/.

The Internal Revenue Service has joined several other jurisdictions in publishing guidance regarding the income tax consequences of certain convertible virtual currency transactions.i IRS Notice 2014-21ii clarifies that existing general tax principles apply to transactions using convertible virtual currency and that such virtual currencies should be treated as “property” rather than “currency” for US federal income tax purposes.  Classification as property may affect the timing and character of income, gain or loss. While the immediate implications of the Notice are apparent, the mid-term and long-term consequences are still being considered.  The IRS has indicated that penalties may apply to taxpayers that have taken return positions that are inconsistent with its position in the Notice or that have failed to file the appropriate information returns.

Virtual currency, such as bitcoin, that is “convertible” (i.e., has an equivalent value in or acts as a substitute for “real currency”iii) and that is sold or exchanged or used to pay for goods or services in certain transactions has tax consequences that may result in a tax liability to the person disposing of such virtual currency and/or receiving such virtual currency.

In addition, such tax consequences may be immediate or deferred, and any tax imposed may be at varying rates, depending on the nature of the transaction and the type of person disposing of or receiving such virtual currency.

In the following paragraphs, we discuss the Notice and its immediate implications, and we point out some legal, factual and practical issues that the Notice raises.
Continue Reading Bitcoin is property, not currency, IRS says – Notice leaves many open questions about convertible virtual currencies

Bill Carleton has a good post regarding the recent comments from Keith Higgins, the Director of the Division of Corporation Finance, who spoke at the 2014 Angel Capital Association Summit.  Higgins discussed the SEC’s principles-based approach with respect to meeting the requirements of new Rule 506(c). 

Since the SEC’s adoption of new Rule 506(c) in September 2013 allowing general solicitation by issuing companies in certain circumstances, angel investors have been concerned about the accredited investor verification standards set forth in those new rules.  The debate has centered around what actions…
Continue Reading Accredited Investor Verification under Rule 506(c)

Article prepared by and republished courtesy of our colleagues Evan M. Migdail and Bruce Thompson; originally published here: http://www.dlapiper.com/camp-unveils-major-tax-reform-plan-today/.

House Ways and Means Committee Chairman Dave Camp (R-Michigan) today unveiled his comprehensive tax reform proposal. Released as draft legislation, the Camp proposal calls for the most fundamental reform of the tax code in 27 years.

Upon releasing the plan, Camp said his reforms would make the tax code simpler and fairer for families and job creators, spur economic growth, create jobs, and put money back in the pockets of hardworking taxpayers.

The proposal would reduce the top individual tax rate to 25 percent from 39.6 percent and the corporate tax rate to 25 percent from 35 percent. The seven individual tax brackets would be reduced to two brackets of 10 and 25 percent, and a 10 percent surtax would be imposed on certain income above $450,000. Capital gains and dividends would be taxed as ordinary income, with a 40 percent exclusion.

The lower tax rates would be offset by eliminating or limiting a long list of individual and corporate tax deductions, exclusions and credits.
Continue Reading Major U.S. tax reform plan unveiled today – key points

Compliments of our DLA Piper colleagues in the data protection and privacy practice, and co-editors Kate Lucente and Paul McCormack, here is the DLA Piper 2014 Data Protection Laws of the World Handbook.  This new online edition of the handbook offers a high-level snapshot of selected features of international laws as they currently stand in 72 jurisdictions across the world.  For example, here is a heat map that provides a visual representation of the privacy challenges faced in certain jurisdictions.

Here is a .pdf of the full 349-page handbook
Continue Reading Interactive 2014 Data Protection Laws of the World Handbook

Just a reminder to those who have Delaware corporations, your annual report and franchise tax payment are both due on or before March 1 (which falls on a Saturday this year). At this point, you have likely already received from Delaware your notification of annual report and franchise tax due, which is sent to a corporation’s registered agent in December or January of each year. Delaware requires these reports to be filed electronically.

As you will notice, there are two methods that you can use to calculate the amount of Delaware franchise tax due for your corporation (i.e., the “Authorized Shares Method” and the “Assumed Par Value Capital Method”), which result in vastly different amounts due. The default payment amount listed on your notification is set by Delaware using the Authorized Shares Method, which method will almost always result in a much high amount due for startups with limited assets. The minimum franchise tax is $75 and the maximum franchise tax is $180,000.

Franchise taxes are generally due in arrears for the prior calendar year. However, note that Delaware requires corporations owing $5,000 or more for the prior year to make estimated payments for the current (going-forward) year’s franchise tax with 40% due June 1, 20% due by September 1, 20% due by December 1, and the remainder due March 1.

Here are some examples showing how the different methods can dramatically impact the amount of Delaware franchise tax due:Continue Reading Franchise tax due on or before March 1 for Delaware corporations: two methods of calculation, two vastly different results

According to the MoneyTree Report by PricewaterhouseCoopers LLP and the National Venture Capital Association (NVCA), venture capitalists invested $29.4 billion in 3,995 deals in 2013, an increase of 7% in dollars and a 4% increase in deal volume over 2012 levels.  The full Q4 and FY 2013 investing trends are available here.

A couple of interesting highlights for 2013:

  • Internet-specific companies captured $7.1 billion, marking the highest level of Internet investment since 2001.
  • Investments into the software industry also reached their highest level since 2000 with $11.0 billion flowing

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Continue Reading 2013 annual venture investment dollars rise 7%