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Contingent Liability and Tax Insurance: A Powerful Duo in M&A Deals

As a private equity leader, you’re no stranger to some of the practical roadblocks that arise in mergers and acquisitions (M&A). These transactions are fraught with potential risks, not least of which are contingent liabilities and tax issues. These two elements, often intertwined, present unique challenges that require specialized risk management strategies. This is where contingent liability and tax insurance come into play.



In simple terms, contingent liability is an already known risk or issue with potential financial repercussions that may occur in the future, depending on the outcome of a specific event but for which the exact quantum of loss or likelihood of loss is unknown. These could be pending lawsuits (including judgments that are on appeal), product warranties, environmental, long-term tail liabilities or other obligations that are conditional upon certain circumstances.


Contingent liability insurance provides coverage for these expected losses. Normally it is provided as a ‘cap’ to the amount at risk negating a worst-case financial loss scenario. The coverage is extremely useful in the context of a specific transaction in that it can remove uncertainty over the identified specific deal impediment in the negotiations between buyer and seller.




Tax issues often surface during an M&A transaction. Insurance coverage is available to back-stop the efficacy of a tax opinion rendered in the context of a merger, acquisition or divestiture.  This coverage is particularly useful when the major economic rationale for the transaction rests upon a particular expected tax treatment. Examples may include tax issues under Section 335 and 368 spin-offs or changes in ownership, NOL carryforwards, compensation arrangements, S-corporation status, Section 1031 ‘like-kind’ exchanges and more. Coverage extends to the tax liability and interest, civil penalties, gross ups and certain lost opportunity costs associated with an adverse tax outcome.




In many M&A deals, contingent liability and tax insurance work together to mitigate risks. Known issues can be covered or capped under contingent liability insurance. Meanwhile, tax opinion guarantee insurance handles potential tax liabilities that could arise post-acquisition.


Together, these insurance products provide a comprehensive risk management solution that protects buyers and sellers alike. They ensure that the financial implications of unforeseen events or uncovered liabilities do not derail the transaction or pose significant post-acquisition risks.




As a private equity leader, your primary goal in any M&A deal is to maximize value while minimizing risk. Contingent liability and tax insurance offer an effective way to achieve this balance. By transferring potential risks to an insurer, you can focus on the strategic aspects of the deal without getting sidetracked by potential legal or tax issues.


At Kapnick, we understand the intricate dynamics of M&A transactions. Our seasoned team is ready to guide you through the process, ensuring that you have the right insurance solutions in place to safeguard your interests. Reach out to us today to learn more about how contingent liability and tax insurance can enhance your M&A strategy.