NCJ Number
116056
Journal
University of Florida Law Review Volume: 40 Issue: 4 Dated: (Tax 1988) Pages: 789-828
Date Published
1988
Length
40 pages
Annotation
One of the most controversial corporate defenses to prevent hostile takeovers is the payment of 'greenmail,' in which the target prevents the takeover by repurchasing shares held by the bidder at a premium over market price.
Abstract
This practice has been criticized as being unfair to the remaining shareholders, as entrenching existing management, and as an ineffective defense because payment of greenmail to one raider does not ensure that a second greenmailer will not emerge. Historically, greenmail has been the subject of judicial review and, more recently, of legislative control under the Tax Reform Act of 1986 and the Omnibus Budget Reconciliation Act of 1987. The 1986 Act prohibits any tax deduction for any amount paid by a corporation for redemption of its own stock, and the 1987 Act levies a 50-percent excise tax on the receipt of greenmail. Because the punitive excise tax does not isolate potentially abusive from nonabusive situations, the law is overly broad. Further guidance also is needed for some statutory definitions, and the tax's application to white-knight situations must be resolved. Moreover, the use of the tax is not in line with tax policy goals of equity and efficiency, and fails to address such equally abusive practices as the standstill agreement defense against hostile takeovers. The provision upsets the delicate balance in the area of hostile takeovers by discouraging the use of the greenmail defense. 261 footnotes.