lg, you said:
"i]Honestly, I look at both sides of the equation. Also, Weil, Gotshal & Manges is the legal team that has also used tax attributes/NOLs in several other cases where commons were saved"
one question i have is how many of those other weil cases were ones in which weil directly represented stockholders? my feeling is that weil probably represented a "buyer" and in getting the best deal for the buyer the old stockholders were brought along as a necessary evil in order to preserve the nols.
in this particular case, a concern which i have raised is the one around a majority owner of the old company has to also be a majority owner of the new company. and, that ownership in the old company seems to need to have been in place for at least 18 months prior to the transaction.
why isn't it possible that lampert alone, as a 49.4% common shareholder of shc as well as a significant secured debt holder, could satisfy the old/new ownership requirement without the need to take in the other shldq shareholders?
i'm not interested in public relations types of answers. my question is, if eddie can qualify based on his ownership alone then legally and from an irs standpoint, he could do it without taking in the other shldq holders.
since eddie has retained the best lawyers money can buy, if this is a "loophole" or whatever you want to call it, including doing just what the letter of the law specifies, why wouldn't weil suggest that?
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