Chevy, you said:
“ESL doesn't have the option of "taking" any of the NOL's ...its not that simple.. and if it was I'm sure Transform Holdco LLC would be all to happy to have them. “
IF you go back to November 21, 2018 (from page 6/46 of docket 862) you can see the letter Lazard sent out to prospective bidders in which it was soliciting bids for the equity (stock) of shc. Following is an excerpt from that letter:
“We also note that the tax profile of the Company (SHC) represents the potential for substantial future value, and prospective bidders should take into account that an acquisition of the equity of the entire group pursuant to a Chapter 11 plan, through an acquisition of Sears Holdings Corporation, is most likely to preserve this potential value as part of the assets and value acquired”
Now, flash forward to December 2, 2018. SHC filed a 13D/A and the following excerpt is from Exhibit 99.1. It is another letter from Lazard which discussed the bid submitted by ESL (Lampert’s company) in which it described a bid from an ESL entity (what became known to us as Transform Holdco). That letter indicated ESL was making a bid to acquire substantially all of the assets (but not the stock which we know as shldq) pursuant to a sale under section 363 of the U.S. Bankruptcy Code.
That letter went on to say that ESL’s company would acquire Sears’ tax assets, the value of which we have incorporated into this Indicative Bid.
Now that transform holdco’s bid has been approved by judge drain, it seems plain that transform holdco has acquired the tax assets of SHC and these tax assets include NOLs as well as the mostly foreign tax credits.
As the apa clearly describes, transform holdco needs to get a tax opinion (and probably an irs private letter ruling) in order to have certainty it will be able to utilize the tax assets which it already has purchased from shc as confirmed by lazard.
Regarding the irs private letter ruling, there was a post on the board within the past two days which linked a Bloomberg article regarding lampert’s need to obtain the irs ruling.
