Buying or Selling a Business? Get Legal Guidance Before You Sign

Business Acquisition and Sale Attorney Doral

A business acquisition and sale attorney reviews a deal before money changes hands. For buyers and sellers in Doral and across Miami-Dade County, that review covers unpaid taxes, non-compete terms, and the writing rules that make a deal enforceable. KEW Legal has offices in Coral Gables and Sunny Isles Beach and serves business owners in Doral.

What a business acquisition and sale attorney does

A business acquisition and sale attorney represents a buyer or a seller in a deal that transfers all or part of a company. Kristina E. Wilson is the attorney responsible for this page. Our team supports this practice in these ways:

• Reviewing the company’s records, contracts, and tax status before closing
• Drafting or reviewing the letter of intent, purchase agreement, and closing documents
• Checking non-compete terms and writing requirements
• Keeping due diligence organized and tracking deadlines
• Advising on whether an asset sale or a stock sale fits the deal

Who this service is for

Business owners who plan to sell, buyers who want to acquire an existing company, and investors buying into an operating business all face these questions. If you’re on either side of a sale, the legal details can change what you actually receive or what you’re liable for.

Successor tax liability: the risk buyers often miss

A buyer of more than half of a Florida business can inherit the seller’s unpaid business taxes, unless the seller proves it’s in good standing.

Under Fla. Stat. § 213.758, a transferee of more than 50 percent of a business, its assets, or its stock of goods is liable for unpaid tax the seller owes from operating that business. Fla. Stat. § 213.758 reads: “(4)(a) A transferee, or a group of transferees acting in concert, of more than 50 percent of a business, assets of a business, or stock of goods of a business is liable for any unpaid tax owed by the transferor arising from the operation of that business unless: 1.a.” The buyer is protected if the seller provides a receipt or certificate of compliance from the Department of Revenue and there were no insiders in common between the seller and the buyer at the time of the transfer, or if the department’s audit finds the seller is not liable for taxes, interest, or penalties. That receipt shows the seller has no audit notice, has filed all required returns, and has paid the tax on them.

Stock sales don’t automatically avoid this risk. The statute defines “transfer” as every mode, direct or indirect, with or without consideration, of parting with a business, its assets, or its stock of goods, other than sales to customers in the ordinary course of business. A business is considered transferred when more than 50 percent of the business, its assets, or its stock of goods is transferred. Buyers should ask for the certificate in any deal structure.

The seller has its own deadline. Under Fla. Stat. § 213.758(3), a seller who transfers the business, its assets, or its stock of goods must file a final return and make full payment within 15 days after the date of transfer; under § 213.758(2), an owner who quits without transferring the business must do so within 15 days after quitting. Under Fla. Stat. § 213.758, an “involuntary transfer” means “a transfer of a business, assets of a business, or stock of goods of a business made without the consent of the transferor,” including a transfer that occurs due to the foreclosure of a security interest issued to a person who is not an insider.

Asset sale or stock sale: how structure changes the deal

Deal structure affects taxes, so it should be decided early. The choice between an asset sale and a stock sale can lead to different tax results for both sides.

Under 26 U.S.C. § 338, when a purchasing corporation makes an election in a qualified stock purchase, the target corporation is treated as having sold all of its assets at fair market value. It is then treated as a new corporation that bought those assets the next day.

Under 26 U.S.C. § 197, acquired goodwill and other amortizable intangibles are deducted ratably over a 15-year period. The deduction starts with the month the intangible was acquired. A covenant not to compete entered into with an acquisition is treated as one of these intangibles.

Non-compete agreements in a business sale

A seller’s non-compete is enforceable in Florida only when it’s in a signed writing, protects a legitimate business interest, and is reasonably limited.

Under Fla. Stat. § 542.335, a court will not enforce a restrictive covenant unless the person against whom enforcement is sought signed it. The party seeking enforcement must prove a legitimate business interest. Customer goodwill tied to an ongoing business counts. A covenant without a legitimate business interest is void and unenforceable.

Overbroad terms don’t always fail completely. If a restraint is overbroad or overlong, a court shall modify it and grant only the relief reasonably necessary. The statute also sets separate presumptions on how long a post-term covenant can reasonably run, including one for a covenant signed by a seller. Where the contract is silent on fees, a court may award attorney’s fees and costs to the prevailing party in any action seeking enforcement of, or challenging the enforceability of, a restrictive covenant.

Writing requirements and time limits for sale contracts

A sale that includes goods, such as inventory, needs a signed record. Florida also sets time limits for lawsuits over contracts.

Under Fla. Stat. § 672.201, a contract for the sale of goods priced at $500 or more is not enforceable unless there is a record showing a contract was made and signed by the party against whom enforcement is sought. Between merchants, a written confirmation can satisfy this rule if it is received within a reasonable time, is sufficient against the sender, and the receiving party has reason to know its contents, unless the receiving party objects in a record within 10 days after receipt.

This section does not set a time limit for actions on contracts or for fraud. Because each category has its own limit, the type of claim matters. Review the time limit early.

Federal filings that can apply to a sale

Large deals may need a federal premerger filing. Foreign buyers may also face a federal reporting duty.

Under 15 U.S.C. § 18a, a person may not acquire voting securities or assets of another person unless both file notification and the waiting period has expired, when the transaction meets the statute’s conditions. Federal premerger notification rules under 15 U.S.C. § 18a can require both parties to file notification and observe a waiting period before certain acquisitions of voting securities or assets.

How to verify a target company before closing

Check the target’s registration and status before you sign. The Florida Department of State’s Sunbiz records provide official registration, filing, and status information for Florida business entities. The IRS business structures guidance explains how entity structure affects federal tax classification in a sale or succession.

How the process works

A typical deal moves through four stages. The length of each stage depends on the deal’s size and how quickly the records arrive.

1. Free first consultation. KEW Legal offers a free first consultation that is confidential and carries no obligation to continue. We learn about the deal, the business, and your goals.
2. Document review. We review tax filings, contracts, leases, licenses, and any existing covenants. We flag successor tax and enforceability issues.
3. Deal terms. We help draft or negotiate the letter of intent and purchase agreement, including representations, indemnification, due diligence conditions, and any earnout.
4. Closing and after. We organize signed documents, the seller’s tax certificate, and the final return. We keep the non-compete and records in order after the sale.

Why work with KEW Legal

KEW Legal’s offices are in Coral Gables and Sunny Isles Beach. The firm serves business owners and investors in Doral, Miami-Dade County, and South Florida. Kristina E. Wilson is the lawyer responsible for this page, and our team includes support staff who keep deal files and filings organized.

The practice focuses on business matters. These include partnership disputes, outside general counsel for businesses, business contracts and vendor disputes, commercial leases, employment issues for employers, succession planning, and real estate investment. Each of these can come up during a sale, so we review the whole picture.

Frequently asked questions

Talk with KEW Legal about your sale

If you’re weighing a sale or purchase and want to know whether unpaid taxes or a non-compete could follow the business, call 305-990-2300 or send us a message.