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Date

Tags:

Rule
801.10, 802.51
Staff
Kristin Shaffer
Response/Comments

Question 1:

We agree that tax credits do not count against the use of 802.51.

Question 2:

801.10(c)(3) requires a fair market value determination by each board. Either or both boards may delegate this authority. How the boards choose to delegate and approve the valuation is up to them.

Question

From: Shaffer, Kristin

Sent: Wednesday, January 17, 2018 3:35:40 PM

To: [Redacted]

Cc: [Redacted]

Subject: RE: Valuation questions

Question 1:

We agree that tax credits do not count against the use of 802.51.

 

Question 2:

801.10(c)(3) requires a fair market value determination by each board. Either or both boards may delegate this authority. How the boards choose to delegate and approve the valuation is up to them.

Best regards,

Kristin

 

Kristin Shaffer

Attorney

Premerger Notification Office

Federal Trade Commission

202-326-3434 | kshaffer@ftc.gov


-------------------------------------------

From: [Redacted]

Sent: Wednesday, January 17, 2018 10:19:19 AM

To: [Redacted]

Subject: Valuation questions

PNO team:

Could you please reconfirm that it is still the PNO’s position that deferred tax assets and tax loss carry-forwards are treated as cash equivalents under the HSR rules and, similarly, qualify as “investment assets” for purposes of the foreign issuer exemption (802.51)? This would be consistent with informal interpretations #0708002 and #0810007, as well as the treatment of prepaid expenses and tax credits generally.

On a separate topic, if an acquiring person has two different UPEs and an FMV determination needs to be made, is it acceptable to have just one of UPEs make the determination and/or delegate that function to another entity or individual? Or do both UPEs need to agree on the determination and/or delegee? Would the CFO of the acquiring entity be acceptable as a de facto delegee of the boards of both UPEs, which would be consistent with the last paragraph of Interpretation #55 in the Premerger Notification Practice Manual (5th ed.)?

 

[Redacted]

About Informal Interpretations

Informal interpretations provide guidance from previous staff interpretations on the applicability of the HSR rules to specific fact situations. You should not rely on them as a substitute for reading the Act and the Rules themselves. These materials do not, and are not intended to, constitute legal advice.

Learn more about Informal Interpretations.