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Buy-out Legal Fees and Treasury Stock

Can we include legal costs associated with a buy-out as part of the cost of creating a treasury stock?

Q: We are a private company, and recently went through the buy- out of one of the partners. As part of the original agreement, one partner could buy out the other at 10 times trailing pre-tax earnings. The shares were repurchased with the use of company funds, bank debt, and a subordinated convertible debenture.

We would like to take the legal costs associated with the buy-out and include that as part of the cost of creating the treasury stock. The legal expenses are significant because the former partner challenged the original contract and lost through several appeals.

Our auditor is saying the costs should be capitalized as financing costs, and amortized over the length of the bank debt. Our position is the debt was a single purpose loan and used exclusively for the buy-out and belongs as part of the treasury stock. Prior to the buy-out we had never incurred any debt. Who is correct?

Peter Foley
Santa Barbara, Calif.

A: There appear to be several, related issues here. First, the cost of the reacquired shares is indeed treasury stock, assuming the shares are not cancelled, and can be accounted for in several ways. The most common accounting method is the “cost” method, under which the entire cost of the stock purchase is charged to a “contra-equity” account (i.e., a reduction from total paid in capital) called treasury stock. Other methods, less popular, are the “par” and “constructive retirement” approaches.

If the company is incorporated in a state which has adopted the Uniform Business Corporation Act (or a variant thereof), reacquired shares revert to authorized but unissued status, and can be reported as if fully retired. That is, the portion of the reacquisition cost that is equal to the original proceeds from when the stock was issued is offset against paid-in capital, and any excess cost of the repurchase is charged to retained earnings. This is similar to the “constructive retirement” method described in standard reference books on generally accepted accounting principles.

Second, the question of how to account for the legal costs incurred in resolving the buy-back dispute is truly one where reasonable minds might disagree on the solution. It is probably supportable to conclude that legal costs strictly associated with the re-acquisition of the shares would be considered an additional cost, and accounted for as part of the cost of the treasury stock. The analogy is issuance costs on new shares offered, in which situation legal costs (among others) are directly offset against proceeds to the company.

The foregoing presumes that such costs are clearly identified with the stock transaction, and are not normal legal expenses — e.g., not an allocated part of the retainer arrangement with the company’s outside counsel. Normal legal expenses must be recognized currently in the income statement. On the other hand, expensing the legal costs on the current income statement, rather than adding to the treasury stock cost, would probably also be within reason, on the grounds that these pertain to a management/ownership dispute and constitutes a recurring, normal period expense.

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