Tax Matters Representative. (a) The Managing Member shall cause the Company to take all necessary actions required by Law to designate Pubco as the “tax matters partner” within the meaning given to such term in Section 6231 of the Code (as in effect prior to the repeal of such section pursuant to the Bipartisan Budget Act of 2015) with respect to any taxable year of the Company beginning on or before December 31, 2017. The Managing Member shall further cause the Company to take all necessary actions required by Law to designate Pubco as the “partnership representative” within the meaning of Section 6223(a) of the Code with respect to any taxable year of the Company beginning after December 31, 2017, and if the “partnership representative” is an entity, the “partnership representative” is hereby authorized to appoint a “designated individual” within the meaning of Treasury Regulation Section 301.6223-1(b) (in such capacities, collectively, the “Tax Matters Representative”). The Tax Matters Representative shall have all of the rights, duties, powers and obligations provided for in the Code with respect to the Company. The Company shall not be obligated to pay any fees or other compensation to the Tax Matters Representative in its capacity as such, but the Company shall reimburse the Tax Matters Representative for all reasonable out-of-pocket costs and expenses (including attorneys’ and other professional fees) incurred by it in its capacity as Tax Matters Representative. Each Member agrees to cooperate with the Company and the Tax Matters Representative and to do or refrain from doing any or all things reasonably requested by the Company or the Tax Matters Representative in connection with any examination of the Company’s affairs by any federal, state, or local tax authorities, including resulting administrative and judicial proceedings. The Company shall defend, indemnify, and hold harmless the Tax Matters Representative against any and all liabilities sustained or incurred as a result of any act or decision concerning Company tax matters and within the scope of such Member’s responsibilities as Tax Matters Representative, so long as such act or decision was done or made in good faith and does not constitute gross negligence or willful misconduct. (b) If the Company pays an imputed underpayment pursuant to Section 6225 of the Code or any similar provision of state, local or non-U.S. law, to the extent possible, the portion thereof attributable to a Member shall be treated as a withholding tax with respect to such Partner under Section 5.06. To the extent that such portion of an imputed underpayment cannot be withheld from a current distribution, the applicable Member (or former Member) shall be liable to the Company for the amount that cannot be so offset. The Members acknowledge that the Company may make the election described in Section 6226 of the Code and any analogous election under state, local or non-U.S. law to the extent such election is available under applicable law, instead of paying an imputed underpayment.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Definitive Healthcare Corp.), Limited Liability Company Agreement (Portillo's Inc.), Limited Liability Company Agreement (Definitive Healthcare Corp.)
Tax Matters Representative. Except as otherwise expressly provided and subject to Section 11.10(a) herein:
(a) The Managing Administrative Member shall cause the Company to take all necessary actions required by Law to designate Pubco as is designated the “tax matters partner,” within the meaning given to such term as defined in Code Section 6231 of the Code (as in effect 6231(a)(7) prior to the repeal of such section pursuant to its amendment by the Bipartisan Budget Act of 2015) with respect to any Act, and effective for the first taxable year of the Company beginning on or before after December 31, 2017. The Managing 2017 and thereafter, the Administrative Member shall further cause the Company to take all necessary actions required by Law to designate Pubco serve as the “partnership representative” within the meaning of Section section 6223(a) of the Code with respect to any taxable year of Code, as amended by the Company beginning after December 31, 2017, and if the “partnership representative” is an entity, the “partnership representative” is hereby authorized to appoint a “designated individual” within the meaning of Treasury Regulation Section 301.6223-1(b) Bipartisan Budget Act (in each such capacities, collectivelycapacity, the “Tax Matters Representative”). The Tax Matters Representative shall have all appoint a “designated individual” in accordance with the requirements of the rightsProposed Regulations Section 301.6223-1(b), duties, powers and obligations provided for in the Code with respect as applicable. Subject to the Company. The Company shall not be obligated to pay any fees or other compensation to further terms of this Section 6.7, the Tax Matters Representative in its capacity as such, but Member is authorized and required to represent the Company shall reimburse (at the Tax Matters Representative for Company’s expense) in connection with all reasonable out-of-pocket costs examinations of the Company’s affairs by tax authorities, including administrative and expenses judicial proceedings (including attorneys’ any proceedings ongoing as of the Effective Date), subject to the further terms of this Section 6.7, and other to expend Company funds for professional fees) incurred by it in its capacity as Tax Matters Representativeservices and costs associated therewith. Each Member agrees The Participating Members agree to cooperate with the Company and the Tax Matters Representative each other and to do or refrain from doing any or and all things reasonably requested by the Company or the Tax Matters Representative required to conduct such proceedings. All expenses incurred in connection with any examination of such audit and with any other tax investigation, settlement or review shall be borne by the Company’s affairs by any federal, state, or local tax authorities, including resulting administrative and judicial proceedings. The Company shall defend, indemnify, hereby indemnifies and hold holds harmless the Tax Matters Representative from and against any claim, loss, expense, liability, action or damage resulting from its acting or its failure to take any action as the Tax Matters Representative of the Company and all liabilities sustained or incurred as a result of any act or decision concerning Company tax matters and within its Subsidiaries except where the scope of such Member’s responsibilities as Tax Matters Representative’s conduct is determined by a court of competent jurisdiction to be the result of gross negligence, so long as such act or decision was done or made in good fraud, bad faith and does not constitute gross negligence or willful misconduct.
(b) If In the event that the Company pays shall be the subject of an audit by any federal, state or local taxing authority, to the extent that the Company is treated as an entity for purposes of such audit, including administrative settlement and judicial review, the Tax Matters Representative shall be authorized to act for, and its decision shall be final and binding upon, the Company and each Member thereof; provided, however, that the Tax Matters Representative shall (i) notify the Participating Members of any administrative or judicial proceeding with respect to the Company, (ii) furnish the Participating Members with any material correspondence or communication relating to the Company from the Internal Revenue Service or state or local taxing authority received by the Tax Matters Representative, (iii) consult with the Participating Members and the Managers prior to taking any material action relating to the tax affairs of the Company, and (iv) make all decisions affecting the tax affairs of the Company in good faith using its reasonable business judgment (it being understood and agreed that for the purposes of this Agreement, the term “reasonable business judgment” shall refer to the “business judgment rule” as the same would be applied under Applicable Law if the Person in question were a director of a corporation); provided, further, that notwithstanding anything to the contrary in this Section 6.7(b), to the extent such audit, including administrative settlement and judicial review, relates to a tax year of the Company or a Subsidiary thereof that ends prior to or includes the Effective Date, the Owner Member shall have the right to participate in such audit at its own expense and all decision regarding such audit shall be subject to the consent of the Owner Member, which consent shall not be unreasonably conditioned, delayed or withheld.
(c) The Tax Matters Representative shall use reasonable efforts to obtain a reduction in any imputed underpayment that may be available to the beneficial owners of any Member pursuant to Section section 6225 of the Code or Code, as amended by the Bipartisan Budget Act, and Regulations thereunder, including pursuant to section 6225(c)(3) and section 6225(c)(4) of the Code, as amended by the Bipartisan Budget Act, and Regulations thereunder provided that each Member shall use commercially reasonable efforts to provide the Tax Matters Representative with any similar provision of state, local or non-U.S. lawinformation reasonably requested by the Tax Matters Representative and necessary for the Tax Matters Representative to comply with this undertaking and, to the extent possible, the portion thereof attributable to a applicable Member shall be treated as entitled to all of the economic benefit associated with any such reduction and shall not bear the economic burden associated with a withholding tax higher rate or amount of taxes that is attributable to any other Member with respect to such Partner under Section 5.06. To the extent that such portion of an any imputed underpayment cannot be withheld from a current distribution, the applicable Member underpayment.
(or former Memberd) shall be liable to the Company for the amount that cannot be so offset. The Members acknowledge that the Company may make shall elect the election described in Section application of section 6226 of the Code Code, as amended by the Bipartisan Budget Act, for its first taxable year beginning after December 31, 2017, in the event that it receives a “notice of final partnership adjustment” that would otherwise permit collection from the Company a deficiency of tax, for each relevant year, unless the Tax Matters Representative determines after consultation with the Members (it being understood that the Tax Matters Representative shall make such determination in its sole and absolute discretion) that the election under section 6226 of the Code, as amended by the Bipartisan Budget Act, is not in the best interests of the Company or cannot be made in a timely manner, in which case the Company shall not make such election. This acknowledgment applies to each Member whether or not it owns a Membership Interest in both the reviewed year and the year of the adjustment. The Members covenant to take into account and report any adjustment, determined in accordance with section 6226 of the Code, as amended by the Bipartisan Budget Act, and any analogous election under stateRegulations adopted therewith, local to their items for the reviewed year and succeeding years prior to the year of adjustment as notified to them by the Tax Matters Representative on behalf of the Company in a statement, in the manner provided in section 6226(b) of the Code, as amended by the Bipartisan Budget Act, for the Company’s first taxable year beginning after December 31, 2017 and thereafter if reasonably permitted, whether or nonnot such Member owns a Membership Interest or remains a Member in the year of any such statement. Any Member which fails to report its share of such adjustments on its U.S. federal income tax return for its taxable year including the date of any such statement as described immediately above shall indemnify and hold harmless the Company and the other Members against any tax, interest and penalties collected from the Company as a result of such Member’s inaction, together with interest thereon at the rate per annum then applicable to Regular Make-U.S. law Up Loans, compounded annually.
(e) If the Company does not elect the application of section 6226 of the Code, as amended by the Bipartisan Budget Act, pursuant to Section 6.7(d), then, to the extent that the Company is assessed amounts under section 6221(a) of the Code, as amended by the Bipartisan Budget Act, (i) each current or former Member to which such election assessment relates shall pay to the Company such Member’s share of the assessed amounts, as determined by the Tax Matters Representative, including such Member’s share of any additional accrued interest and penalties assessed against the Company relating to such Member’s share of the assessment, upon thirty (30) days of written notice from the Tax Matters Representative requesting the payment, and (ii) if a former Member fails to pay to the Company such former Member’s share of the assessed amounts (and any additional interest) in accordance with clause (i), then the current Member who is available the direct or indirect transferee of such former Member’s Membership Interest shall be liable for, and shall pay to the Company, such former Member’s share. At the reasonable discretion of the Tax Matters Representative, with respect to current Members, the Company may alternatively allow some, or all, of a Member’s obligation pursuant to the preceding sentence to be applied to and reduce the next distribution(s) otherwise payable to such Member under applicable lawthis Agreement.
(f) The provisions contained in this Section 6.7 shall survive the liquidation, instead termination and dissolution of paying an imputed underpaymentthe Company and the withdrawal of any Member or the Transfer of any Member’s Membership Interest in the Company.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (New York REIT, Inc.), Membership Interest Purchase Agreement (New York REIT, Inc.)
Tax Matters Representative. (a) The Managing Member Manager shall cause the Company to take all necessary actions required by Law to designate Pubco serve as the “tax matters partner” within the meaning given to such term in Section 6231 of the Code (as in effect prior to the repeal of such section pursuant to the Bipartisan Budget Act of 2015) with respect to any taxable year of the Company beginning on or before December 31, 2017. The Managing Member shall further cause the Company to take all necessary actions required by Law to designate Pubco as the “"partnership representative” within the meaning of ," as provided in Section 6223(a) of the Code with respect to any taxable year of (the Company beginning after December 31, 2017, and if the “partnership representative” is an entity, the “partnership representative” is hereby authorized to appoint a “designated individual” within the meaning of Treasury Regulation Section 301.6223-1(b) (in such capacities, collectively, the “"Tax Matters Representative”").
(b) The Tax Matters Representative is authorized and required to represent the Company (at the Company's expense) in connection with all examinations of the Company's affairs by taxing authorities, including in any resulting Proceedings, and to expend Company funds for professional services and costs associated therewith. The Tax Matters Representative shall have all sole authority to act on behalf of the rightsCompany in any such examinations and in any resulting Proceedings, dutiesand shall, powers and obligations provided for in upon the Code with respect direction of the Manager, contest or continue to the Companycontest any tax deficiencies assessed or proposed to be assessed by any taxing authority. The Company shall not be obligated to pay any fees or other compensation to the Tax Matters Representative shall promptly notify the Members in its capacity as such, but writing of the Company shall reimburse the Tax Matters Representative for all reasonable out-of-pocket costs and expenses (including attorneys’ and other professional fees) incurred by it in its capacity as Tax Matters Representative. Each Member agrees to cooperate with the Company and the Tax Matters Representative and to do or refrain from doing commencement of any or all things reasonably requested by the Company or the Tax Matters Representative in connection with any examination tax audit of the Company’s affairs by , upon receipt of a tax assessment and upon receipt of a notice of final partnership adjustment, and shall keep the Members reasonably informed of the status of any federal, state, or local tax authorities, including audit and resulting administrative and judicial proceedings. Without the consent of the Manager and the Members, the Tax Matters Representative shall not extend the statute of limitations, file a request for administrative adjustment, file suit relating to any Company tax refund or deficiency, or enter into any settlement agreement relating to items of income, gain, loss, or deduction of the Company with any taxing authority.
(c) The Tax Matters Representative shall make any and all elections on a timely basis and to take any actions that are available to be made or taken by the Tax Matters Representative or the Company under the partnership audit procedures set forth in Subchapter C of Chapter 63 of the Code (the "BBA Rules") (including an election under Code Section 6226), and the Members shall take such actions reasonably requested by the Tax Matters Representative. To the extent that the Tax Matters Representative does not make an election under Code Section 6221(b) or Code Section 6226, (i) the Company shall use commercially reasonable efforts to make any modifications available under Code Section 6225(c)(3), (4), and (5), and (ii) the Members shall take such actions as reasonably requested by the Tax Matters Representative, including filing amended tax returns and paying any tax due under Code Section 6225(c)(2)(A) or paying any tax due and providing applicable information to the Internal Revenue Service under Code Section 6225 (c)(2)(B). Each Member agrees that such Member shall not treat any Company item inconsistently on such Member's federal, state, foreign, or other income tax return with the treatment of the item on the Company's return. Any deficiency of taxes imposed on any Member (including penalties, additions to tax, or interest imposed with respect to such taxes and taxes imposed pursuant to Code Section 6226) shall be paid by such Member and if required to be paid (and actually paid) by the Company, will be recoverable from such Member.
(d) The Company shall defend, indemnify, and hold harmless the Tax Matters Representative against any and all liabilities Liabilities sustained or incurred as a result of any act or decision concerning Company tax matters and within the scope of such Member’s 's responsibilities as the Tax Matters Representative, so long as such act or decision was done or made in good faith and does not constitute gross negligence or willful misconduct.
(b) If the Company pays an imputed underpayment pursuant to Section 6225 of the Code or any similar provision of state, local or non-U.S. law, to the extent possible, the portion thereof attributable to a Member shall be treated as a withholding tax with respect to such Partner under Section 5.06. To the extent that such portion of an imputed underpayment cannot be withheld from a current distribution, the applicable Member (or former Member) shall be liable to the Company for the amount that cannot be so offset. The Members acknowledge that the Company may make the election described in Section 6226 of the Code and any analogous election under state, local or non-U.S. law to the extent such election is available under applicable law, instead of paying an imputed underpayment.
Appears in 2 contracts
Samples: Limited Liability Company Operating Agreement (Red Oak Capital Fund VI, LLC), Limited Liability Company Operating Agreement (Red Oak Capital Fund VI, LLC)
Tax Matters Representative. (a) The Managing Member shall cause the Company to take all necessary actions required by Law to designate Pubco as the “tax matters partner” within the meaning given to such term in Section 6231 of the Code (as in effect prior to the repeal of such section pursuant to the Bipartisan Budget Act of 2015) with respect to any taxable year of the Company beginning on or before December 31, 2017. The Managing Member shall further cause the Company to take all necessary actions required by Law to designate Pubco as the “partnership representative” within (as such term is defined in Section 6223 of the meaning BBA Audit Rules or corresponding or similar provision of Section 6223(aapplicable state or local law) of the Code with respect to any taxable year of the Company beginning after December 31, 2017, and if the “partnership representative” is an entity, the “partnership representative” is hereby authorized to appoint a “designated individual” within the meaning of Treasury Regulation Section 301.6223-1(b) (in such capacities, collectively, the “Tax Matters Representative”)) shall be PubCo or any successor designated by such Person. The Tax Matters Representative shall have all be permitted to appoint any “designated individual” (or similar person) (a “Designated Individual”) permitted under Treasury Regulations Section 301.6223-1 (or any successor regulations or corresponding or similar provision of applicable state or local law). If the rightsTax Matters Representative appoints a Designated Individual pursuant to Code Section 6223 and Treasury Regulations thereunder (or corresponding or similar provision of applicable state or local law), duties, powers and obligations provided for such Designated Individual shall be subject to this Agreement in the Code with respect to same manner as the Company. The Company shall not be obligated to pay any fees or other compensation Tax Matters Representative (and references to the Tax Matters Representative shall include any such Designated Individual unless the context otherwise requires or shall mean solely the Designated Individual as needed to comply with applicable law). Each Member, by its execution of this Agreement, hereby (i) consents to such designation of the Tax Matters Representative, and agrees to execute, certify, acknowledge, deliver, swear to, file and record at the appropriate public offices such documents as may be necessary or appropriate to evidence such consent, (ii) agrees take such actions as may be required to effect any future designations of the Tax Matters Representative, and (iii) agrees to cooperate to provide any information or take such other actions as may be reasonably requested by the Tax Matters Representative, to determine whether any Imputed Underpayment Amount may be modified pursuant to Code Section 6225(c) (or any corresponding or similar provision of applicable state or local law). To the extent and in its capacity as suchthe manner provided by applicable Code Sections and Treasury Regulations thereunder (or any corresponding or similar provision of applicable state or local law), but the Company shall reimburse the Tax Matters Representative (i) shall furnish the name, address and taxpayer identification number of each Member to the IRS and (ii) shall inform each Member of administrative or judicial proceedings for the adjustment of Company items required to be taken into account by a Member for income tax purposes. The Tax Matters Representative shall act reasonably at all times and keep the other Members reasonably informed about its actions. The Tax Matters Representative shall be entitled to be reimbursed for all reasonable out-of-pocket costs and expenses (including attorneys’ and other professional fees) properly incurred by it in its the capacity as the Tax Matters Representative. Each Member agrees to cooperate with the Company and the Tax Matters Representative and to do or refrain from doing any or all things reasonably requested by the Company or the Tax Matters Representative in connection with any examination of the Company’s affairs by any federal, state, or local tax authorities, including resulting administrative and judicial proceedings. The Company shall defend, indemnify, and hold harmless the Tax Matters Representative against any and all liabilities sustained or incurred as a result of any act or decision concerning Company tax matters and within the scope of such Member’s responsibilities as Tax Matters Representative, so long as such act or decision was done or made in good faith and does not constitute gross negligence or willful misconduct.
(b) If the Company pays an imputed underpayment pursuant Each Member shall be considered to Section 6225 of have retained such rights (and obligations, if any) as are provided for under the Code or any similar provision of state, local or non-U.S. law, to the extent possible, the portion thereof attributable to a Member shall be treated as a withholding tax other applicable law with respect to such Partner under Section 5.06any examination, proposed adjustment or proceeding relating to Company tax items. To The Tax Matters Representative agrees that it will not bind the extent Members to any material income tax settlement or income tax settlement that such portion disproportionately impacts the Class B Members without the prior written approval of an imputed underpayment canthe affected Majority Class B Members, which approval shall not be withheld unreasonably withheld, delayed or conditioned. The Tax Matters Representative shall use reasonable best efforts to notify the Members, within thirty (30) days after the Tax Matters Representative receives notice from the IRS, of any administrative proceeding with respect to an examination of, or proposed adjustment to, any Company tax items, and shall promptly provide the Members with copies of relevant written materials. The Tax Matters Representative shall use reasonable best efforts to provide the Members with notice of its intention to extend the statute of limitations or file a current distributiontax claim in any court at least ten (10) days before taking such action and shall not take such action without the prior written approval of the Majority Class B Members, which approval shall not be unreasonably withheld, delayed or conditioned.
(c) Neither the applicable Member (or former Member) Board nor the Tax Matters Representative shall elect to cause the Company to be liable subject to the Company for the amount that cannot be so offsetBBA Audit Rules with respect to any taxable year beginning before January 1, 2018. The Members acknowledge that the Company may Tax Matters Representative shall use reasonable best efforts to make the election described in Section 6226 of the Code and BBA Audit Rules (or any analogous election under state, corresponding or similar provision of applicable state or local law) with respect to each final partnership adjustment for a taxable period ending on or non-U.S. law prior to the extent date hereof. If the Company is subject to any Imputed Underpayment Amount under the BBA Audit Rules, the Board shall use reasonable efforts to allocate such election is available under applicable lawliabilities among the Members and former Members in a fair and equitable manner, instead taking into account any modifications attributable to such a Member pursuant to Section 6225(c) of paying an imputed underpaymentthe BBA Audit Rules (if applicable). Any tax liabilities so allocated shall be treated as a Tax Liability subject to the provisions of Section 8.6.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (CompoSecure, Inc.), Agreement and Plan of Merger (Roman DBDR Tech Acquisition Corp.)
Tax Matters Representative. (a) The Managing Member Manager shall cause the Company to take all necessary actions required by Law to designate Pubco as the “tax matters partner” within the meaning given to such term in Section 6231 of the Code (as in effect prior to the repeal of such section pursuant to the Bipartisan Budget Act of 2015) with respect to any taxable year of the Company beginning on or before December 31, 2017. The Managing Member shall further cause the Company to take all necessary actions required by Law to designate Pubco serve as the “partnership representative,” within the meaning of as provided in Section 6223(a) of the Code with respect to any taxable year of the Company beginning after December 31, 2017, and if the “partnership representative” is an entity, the “partnership representative” is hereby authorized to appoint a “designated individual” within the meaning of Treasury Regulation Section 301.6223-1(b) (in such capacities, collectively, the “Tax Matters Representative”). The Tax Matters Representative may be removed at any time by the Manager and shall have all resign if it is no longer a Member. In the event of the rights, duties, powers and obligations provided for in the Code with respect to the Company. The Company shall not be obligated to pay any fees resignation or other compensation to removal of the Tax Matters Representative in its capacity as suchRepresentative, but the Company Manager shall reimburse the select a replacement Tax Matters Representative.
(b) The Tax Matters Representative for all reasonable out-of-pocket costs is authorized and expenses (including attorneys’ and other professional fees) incurred by it in its capacity as Tax Matters Representative. Each Member agrees required to cooperate with represent the Company and (at the Tax Matters Representative and to do or refrain from doing any or all things reasonably requested by the Company or the Tax Matters Representative Company’s expense) in connection with any examination all examinations of the Company’s affairs by taxing authorities, including in any resulting proceedings, and to expend Company funds for professional services and costs associated therewith. The Tax Matters Representative shall have sole authority to act on behalf of the Company in any such examinations and in any resulting proceedings, and shall, upon the direction of the Manager, contest or continue to contest any tax deficiencies assessed or proposed to be assessed by any taxing authority. Without the consent of the Manager, the Tax Matters Representative shall not extend the statute of limitations, file a request for administrative adjustment, file suit relating to any Company tax refund or deficiency or enter into any settlement agreement relating to items of income, gain, loss or deduction of the Company with any taxing authority.
(c) The Tax Matters Representative shall make any and all elections on a timely basis and take any actions that are available to be made or taken by the Tax Matters Representative or the Company under the partnership audit procedures set forth in Subchapter C of Chapter 63 of the Code (including an election under Code Section 6226), and the Members shall take such actions reasonably requested by the Tax Matters Representative. To the extent that the Tax Matters Representative does not make an election under Code Section 6221(b) or Code Section 6226, (i) the Company shall use commercially reasonable efforts to make any modifications available under Code Section 6225(c)(3), (4) and (5) and (ii) the Members shall take such actions as reasonably requested by the Tax Matters Representative, including filing amended tax returns and paying any tax due under Code Section 6225(c)(2)(A) or paying any tax due and providing applicable information to the U.S. Internal Revenue Service under Code Section 6225(c)(2)(B). Each Member agrees that such Member shall not treat any Company item inconsistently on such Member’s federal, state, foreign or local other income tax authoritiesreturn with the treatment of the item on the Company’s return. Any deficiency of taxes imposed on any Member (including penalties, including resulting administrative additions to tax or interest imposed with respect to such taxes and judicial proceedings. taxes imposed pursuant to Code Section 6226) shall be paid by such Member and, if required to be paid (and actually paid) by the Company, will be recoverable from such Member.
(d) The Company shall defend, indemnify, indemnify and hold harmless the Tax Matters Representative against any and all liabilities sustained or incurred as a result of any act or decision concerning Company tax matters and within the scope of such MemberPerson’s responsibilities as the Tax Matters Representative, so long as such act or decision was done or made in good faith and does not constitute gross negligence or willful misconduct.
(b) If the Company pays an imputed underpayment pursuant to Section 6225 of the Code or any similar provision of state, local or non-U.S. law, to the extent possible, the portion thereof attributable to a Member shall be treated as a withholding tax with respect to such Partner under Section 5.06. To the extent that such portion of an imputed underpayment cannot be withheld from a current distribution, the applicable Member (or former Member) shall be liable to the Company for the amount that cannot be so offset. The Members acknowledge that the Company may make the election described in Section 6226 of the Code and any analogous election under state, local or non-U.S. law to the extent such election is available under applicable law, instead of paying an imputed underpayment.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Phoenix Capital Group Holdings, LLC)
Tax Matters Representative. (a) The Managing Members hereby appoint CN Member shall cause the Company to take all necessary actions required by Law to designate Pubco as the “tax matters partner” within the meaning given to such term in Section 6231 of the Code (as in effect prior to the repeal of such section pursuant to the Bipartisan Budget Act of 2015) with respect to any taxable year of the Company beginning on or before December 31, 2017. The Managing Member shall further cause the Company to take all necessary actions required by Law to designate Pubco as the “partnership representative” within the meaning of as provided in Code Section 6223(a) of the Code with respect to any taxable year of the Company beginning after December 31, 2017, and if the “partnership representative” is an entity, the “partnership representative” is hereby authorized to appoint a “designated individual” within the meaning of Treasury Regulation Section 301.6223-1(b) (in such capacities, collectively, the “Tax Matters Representative”). The Tax Matters Representative shall have all may be removed by the Board for failure to perform its duties in this Section 11.04. In the event of the rights, duties, powers and obligations provided for in the Code with respect to the Company. The Company shall not be obligated to pay any fees or other compensation to removal of the Tax Matters Representative in its capacity as suchRepresentative, but the Company Board shall reimburse the select a replacement.
(b) The Tax Matters Representative for all reasonable out-of-pocket costs and expenses (including attorneys’ and other professional fees) incurred by it in its capacity as Tax Matters Representative. Each Member agrees is authorized to cooperate with represent the Company and the Tax Matters Representative and to do or refrain from doing any or all things reasonably requested by the Company or the Tax Matters Representative in connection with any examination all examinations of the Company’s affairs by any federal, state, or local tax authoritiesTaxing Authorities, including resulting administrative and judicial proceedings, and to expend Company funds for professional services and costs associated therewith. The Tax Matters Representative shall promptly notify the Members in writing of the commencement of any tax audit of the Company, upon receipt of a tax assessment and upon the receipt of a notice of final partnership adjustment, and shall keep the Members reasonably informed of the status of any tax audit and resulting administrative and judicial proceedings. The Tax Matters Representative shall not take any material actions in a tax audit or proceeding, including extending the statute of limitations, filing a request for administrative adjustment, filing suit relating to any Company tax refund or deficiency, entering into any settlement agreement relating to items of income, gain, loss or deduction of the Company, or making any elections or other determinations, without the approval of the Board.
(c) To the extent permitted by applicable Law, the Tax Matters Representative will cause the Company to elect annually out of the partnership audit procedures pursuant to Code Section 6221(b). For any year in which applicable Law does not permit the Company to elect out of procedures, then within forty-five (45) days of any notice of final partnership adjustment, the Tax Matters Representative shall, unless (i) the Company remains owned in a 50-50 ratio by the original Members and such adjustment (and, if applicable, each element thereof) would have been allocated 50-50 between the original Members if the alternative procedure under Code Section 6226 were elected, or (ii) or the Members unanimously agree otherwise, cause the Company to elect the alternative procedure under Code Section 6226, and furnish to the Internal Revenue Service and each Member during the year or years to which the notice of final partnership adjustment relates a statement of the Member’s share of any adjustment set forth in the notice of final partnership adjustment.
(d) Each Member agrees that such Member shall not treat any Company item inconsistently on such Member’s federal, state, foreign or other income tax return with the treatment of the item on the Company’s return. Any deficiency for taxes imposed on any Member (including penalties, additions to tax or interest imposed with respect to such taxes and any taxes imposed on the Company pursuant to Code Section 6225) will be paid by such Member and if required to be paid (and actually paid) by the Company, will be recoverable from such Member in the manner provided in Section 6.02(d).
(e) The Company will make an election under Code Section 754, if requested in writing by a Member.
(f) The Company shall defend, indemnify, and hold harmless the Tax Matters Representative against any and all liabilities sustained or incurred as a result of any act or decision concerning Company tax matters and within the scope of such Member’s responsibilities as the Tax Matters Representative’s responsibilities, so long as such act or decision was done or made in good faith and does not constitute gross negligence or willful misconduct.
(bg) If The provisions of this Section 11.04 and the obligations of a Member or former Member pursuant to this Section 11.04 shall survive the termination, dissolution, liquidation, and winding up of the Company pays an imputed underpayment pursuant to Section 6225 and the Transfer of the Code or any similar provision of state, local or non-U.S. law, to the extent possible, the portion thereof attributable to a Member shall be treated as a withholding tax with respect to such Partner under Section 5.06. To the extent that such portion of an imputed underpayment cannot be withheld from a current distribution, the applicable Member (or former Member) shall be liable to the Company for the amount that cannot be so offset. The Members acknowledge that the Company may make the election described in Section 6226 of the Code and any analogous election under state, local or non-U.S. law to the extent such election is available under applicable law, instead of paying an imputed underpayment’s Membership Interest.
Appears in 1 contract
Tax Matters Representative. Sextant or its successor in interest shall be the Tax Matters Representative (athe "TMR") and shall be responsible for all administrative and judicial proceedings for the assessment and collection of tax deficiencies or the refund of tax overpayments arising out of a Member's distributive share of items of income, deduction, credit and/or of any other Company item (as that term is defined in the Code or in Regulations issued by the Internal Revenue Service) allocated to the Members affecting any Member's tax liability. The Managing Member TMR shall cause promptly give notice to all Members of any administrative or judicial proceeding pending before the Internal Revenue Service involving any Company item and the progress of any such proceeding. Such notice shall be in compliance with such regulations as are issued by the Internal Revenue Service. The TMR shall have all the powers provided to take all necessary actions required by Law to designate Pubco as the “a tax matters partner” within partner in xx.xx. 6221-6233 of Code, including the meaning given specific power to such term in Section 6231 extend the statute of the Code (as in effect prior to the repeal of such section pursuant to the Bipartisan Budget Act of 2015) limitations with respect to any taxable year of matter which is attributable to any Company item or affecting any item pending before the Internal Revenue Service and to select the forum to litigate any tax issue or liability arising from Company beginning on or before December 31, 2017items. The Managing Member TMR may resign his position by giving thirty (30) calendar days' written notice to the Board, whereupon the Board shall further cause the Company designate a new TMR. The TMR shall be entitled to take reimbursement for any and all necessary actions required by Law to designate Pubco as the “partnership representative” within the meaning of Section 6223(a) of the Code reasonable expenses incurred with respect to any taxable year of the Company beginning after December 31, 2017, and if the “partnership representative” is an entity, the “partnership representative” is hereby authorized to appoint a “designated individual” within the meaning of Treasury Regulation Section 301.6223-1(b) (in such capacities, collectively, the “Tax Matters Representative”). The Tax Matters Representative shall have all of the rights, duties, powers and obligations provided for in the Code with respect to administrative and/or judicial proceedings affecting the Company. The TMR, as designated by this Agreement, shall have the power to make or revoke the tax elections that the Company shall is entitled to make or revoke at the entity level. These tax elections include but are not limited to:
(a) Method of accounting; and
(b) ss. 754 elections. The Company hereby agrees to indemnify and hold harmless the TMR and each director, officer, employee, agent and Affiliated Person thereof (each an "indemnified person") from and against any and all actions, suits, proceedings (including investigations or inquiries), claims, losses, damages, liabilities or expenses of any kind or nature whatsoever which may be obligated incurred by or asserted against or involve the TMR or any other such indemnified person as a result of or arising out of or in any way related to or resulting from its acting as, or failure to act as, tax matters representative under this Agreement and, upon demand, to pay and reimburse the TMR and each other indemnified person for any fees reasonable legal or other compensation to the Tax Matters Representative in its capacity as such, but the Company shall reimburse the Tax Matters Representative for all reasonable out-of-pocket costs and expenses (including attorneys’ and other professional fees) incurred by it in its capacity as Tax Matters Representative. Each Member agrees to cooperate with the Company and the Tax Matters Representative and to do or refrain from doing any or all things reasonably requested by the Company or the Tax Matters Representative in connection with investigating, defending or preparing to defend any examination such action, suit, proceeding (including any inquiry or investigation) or claim (whether or not the TMR or any other such Person is a party to any action or proceeding out of which any such expenses arise); provided that the Company’s affairs by any federal, state, or local tax authorities, including resulting administrative and judicial proceedings. The Company shall defend, indemnify, and hold harmless the Tax Matters Representative have no obligation to indemnify any indemnified person against any and all liabilities sustained loss, claim, damage, expense or incurred as a result of any act or decision concerning Company tax matters and within liability to the scope of such Member’s responsibilities as Tax Matters Representative, so long as such act or decision was done or made in good faith and does not constitute extent same resulted from the gross negligence or willful misconduct.
(b) If the Company pays an imputed underpayment pursuant to Section 6225 misconduct of the Code or any similar provision of state, local or non-U.S. law, to the extent possible, the portion thereof attributable to a Member shall be treated as a withholding tax with respect to such Partner under Section 5.06. To the extent that such portion of an imputed underpayment cannot be withheld from a current distribution, the applicable Member (or former Member) shall be liable to the Company for the amount that cannot be so offset. The Members acknowledge that the Company may make the election described in Section 6226 of the Code and any analogous election under state, local or non-U.S. law to the extent such election is available under applicable law, instead of paying an imputed underpaymentrespective indemnified person.
Appears in 1 contract
Tax Matters Representative. (a) The Managing Member shall cause the Company to take all necessary actions required by Law to designate Pubco as the “tax matters partner” within the meaning given to such term in Section 6231 of the Code (as in effect prior to the repeal of such section pursuant to the Bipartisan Budget Act of 2015) with respect to any taxable year of the Company beginning on or before December 31, 2017. The Managing Member shall further cause the Company to take all necessary actions required by Law to designate Pubco as the “partnership representative” within (as such term is defined in Section 6223 of the meaning BBA Audit Rules or corresponding or similar provision of Section 6223(aapplicable state or local law) of the Code with respect to any taxable year of the Company beginning after December 31, 2017, and if the “partnership representative” is an entity, the “partnership representative” is hereby authorized to appoint a “designated individual” within the meaning of Treasury Regulation Section 301.6223-1(b) (in such capacities, collectively, the “Tax Matters Representative”)) shall be PubCo or any successor designated by such Person. The Tax Matters Representative shall have all be permitted to appoint any “designated individual” (or similar person) (a “Designated Individual”) permitted under Treasury Regulations Section 301.6223-1 (or any successor regulations or corresponding or similar provision of applicable state or local law). If the rightsTax Matters Representative appoints a Designated Individual pursuant to Code Section 6223 and Treasury Regulations thereunder (or corresponding or similar provision of applicable state or local law), duties, powers and obligations provided for such Designated Individual shall be subject to this Agreement in the Code with respect to same manner as the Company. The Company shall not be obligated to pay any fees or other compensation Tax Matters Representative (and references to the Tax Matters Representative shall include any such Designated Individual unless the context otherwise requires or shall mean solely the Designated Individual as needed to comply with applicable law). Each Member, by its execution of this Agreement, hereby (i) consents to such designation of the Tax Matters Representative, and agrees to execute, certify, acknowledge, deliver, swear to, file and record at the appropriate public offices such documents as may be necessary or appropriate to evidence such consent, (ii) agrees take such actions as may be required to effect any future designations of the Tax Matters Representative, and (iii) agrees to cooperate to provide any information or take such other actions as may be reasonably requested by the Tax Matters Representative, to determine whether any Imputed Underpayment Amount may be modified pursuant to Code Section 6225(c) (or any corresponding or similar provision of applicable state or local law). To the extent and in its capacity as suchthe manner provided by applicable Code Sections and Treasury Regulations thereunder (or any corresponding or similar provision of applicable state or local law), but the Company shall reimburse the Tax Matters Representative (i) shall furnish the name, address and taxpayer identification number of each Member to the IRS and (ii) shall inform each Member of administrative or judicial proceedings for the adjustment of Company items required to be taken into account by a Member for income tax purposes. The Tax Matters Representative shall act reasonably at all times and keep the other Members reasonably informed about its actions. The Tax Matters Representative shall be entitled to be reimbursed for all reasonable out-of-pocket costs and expenses (including attorneys’ and other professional fees) properly incurred by it in its the capacity as the Tax Matters Representative. Each Member agrees to cooperate with the Company and the Tax Matters Representative and to do or refrain from doing any or all things reasonably requested by the Company or the Tax Matters Representative in connection with any examination of the Company’s affairs by any federal, state, or local tax authorities, including resulting administrative and judicial proceedings. The Company shall defend, indemnify, and hold harmless the Tax Matters Representative against any and all liabilities sustained or incurred as a result of any act or decision concerning Company tax matters and within the scope of such Member’s responsibilities as Tax Matters Representative, so long as such act or decision was done or made in good faith and does not constitute gross negligence or willful misconduct.
(b) If the Company pays an imputed underpayment pursuant Each Member shall be considered to Section 6225 of have retained such rights (and obligations, if any) as are provided for under the Code or any similar provision of state, local or non-U.S. law, to the extent possible, the portion thereof attributable to a Member shall be treated as a withholding tax other applicable law with respect to such Partner under Section 5.06any examination, proposed adjustment or proceeding relating to Company tax items. To The Tax Matters Representative agrees that it will not bind the extent Members to any material income tax settlement or income tax settlement that such portion disproportionately impacts the Class B Members without the prior written approval of an imputed underpayment canthe affected Majority Class B Members, which approval shall not be withheld unreasonably withheld, delayed or conditioned. The Tax Matters Representative shall use reasonable best efforts to notify the Members, within thirty (30) days after the Tax Matters Representative receives notice from the IRS, of any administrative proceeding with respect to an examination of, or proposed adjustment to, any Company tax items, and shall promptly provide the Members with copies of relevant written materials. The Tax Matters Representative shall use reasonable best efforts to provide the Members with notice of its intention to extend the statute of limitations or file a current distributiontax claim in any court at least ten (10) days before taking such action and shall not take such action without the prior written approval of the Majority Class B Members, which approval shall not be unreasonably withheld, delayed or conditioned.
(c) Neither the applicable Managing Member (or former Member) nor the Tax Matters Representative shall elect to cause the Company to be liable subject to the Company for the amount that cannot be so offsetBBA Audit Rules with respect to any taxable year beginning before January 1, 2018. The Members acknowledge that the Company may Tax Matters Representative shall use reasonable best efforts to make the election described in Section 6226 of the Code and BBA Audit Rules (or any analogous election under state, corresponding or similar provision of applicable state or local law) with respect to each final partnership adjustment for a taxable period ending on or non-U.S. law prior to the extent date hereof. If the Company is subject to any Imputed Underpayment Amount under the BBA Audit Rules, the Managing Member shall use reasonable efforts to allocate such election is available under applicable lawliabilities among the Members and former Members in a fair and equitable manner, instead taking into account any modifications attributable to such a Member pursuant to Section 6225(c) of paying an imputed underpaymentthe BBA Audit Rules (if applicable). Any tax liabilities so allocated shall be treated as a Tax Liability subject to the provisions of Section 8.6.
Appears in 1 contract
Samples: Merger Agreement (Roman DBDR Tech Acquisition Corp.)
Tax Matters Representative. (a) The Managing Member shall cause the Company to take all necessary actions required by Law to designate Pubco as the “tax matters partner” within the meaning given to such term in Section 6231 of the Code (as in effect prior to the repeal of such section pursuant to the Bipartisan Budget Act of 2015) with respect to any taxable year of the Company beginning on or before December 31, 2017. The Managing Member shall further cause the Company to take all necessary actions required by Law to designate Pubco as the “partnership representative” within the meaning of Section 6223(a) of the Code with respect to any taxable year of the Company beginning after December 31, 2017, and if the “partnership representative” is an entity, the “partnership representative” is hereby authorized to appoint a “designated individual” within the meaning of Treasury Regulation Section 301.6223-1(b) (in such capacities, collectively, the “Tax Matters Representative”). The Tax Matters Representative shall have all of the rights, duties, powers and obligations provided for in the Code with respect to the Company. The Company shall not be obligated to pay any fees or other compensation to the Tax Matters Representative in its capacity as such, but the Company shall reimburse the Tax Matters Representative for all reasonable out-of-pocket costs and expenses (including attorneys’ and other professional fees) incurred by it in its capacity as Tax Matters Representative. Each Member agrees to cooperate with the Company and the Tax Matters Representative and to do or refrain from doing any or all things reasonably requested by the Company or the Tax Matters Representative in connection with any examination of the Company’s affairs by any federal, WEIL:\98138660\9\68083.0004 state, or local tax authorities, including resulting administrative and judicial proceedings. The Company shall defend, indemnify, and hold harmless the Tax Matters Representative against any and all liabilities sustained or incurred as a result of any act or decision concerning Company tax matters and within the scope of such Member’s responsibilities as Tax Matters Representative, so long as such act or decision was done or made in good faith and does not constitute gross negligence or willful misconduct.
(b) If the Company pays an imputed underpayment pursuant to Section 6225 of the Code or any similar provision of state, local or non-U.S. law, to the extent possible, the portion thereof attributable to a Member shall be treated as a withholding tax with respect to such Partner under Section 5.06. To the extent that such portion of an imputed underpayment cannot be withheld from a current distribution, the applicable Member (or former Member) shall be liable to the Company for the amount that cannot be so offset. The Members acknowledge that the Company may make the election described in Section 6226 of the Code and any analogous election under state, local or non-U.S. law to the extent such election is available under applicable law, instead of paying an imputed underpayment.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Portillo's Inc.)
Tax Matters Representative. (a) The Managing Unless otherwise designated by the JOC, the Members appoint the Majority Member shall cause the Company to take all necessary actions required by Law to designate Pubco as the “tax matters partner” within the meaning given to such term in Section 6231 of the Code (as in effect prior to the repeal of such section pursuant to the Bipartisan Budget Act of 2015) with respect to any taxable year of the Company beginning on or before December 31, 2017. The Managing Member shall further cause the Company to take all necessary actions required by Law to designate Pubco as the “partnership representative” within the meaning of as provided in Code Section 6223(a) of the Code with respect to any taxable year of the Company beginning after December 31, 2017, and if the “partnership representative” is an entity, the “partnership representative” is hereby authorized to appoint a “designated individual” within the meaning of Treasury Regulation Section 301.6223-1(b) (in such capacities, collectively, the “Tax Matters Representative”). The Tax Matters Representative shall have all appoint an individual meeting the requirements of Treasury Regulation Section 301.6223-1(c)(3) as the rights, duties, powers and obligations provided for in the Code with respect sole person authorized to the Company. The Company shall not be obligated to pay any fees or other compensation to represent the Tax Matters Representative in its capacity audits and other proceedings governed by the partnership audit procedures set forth in Subchapter C of Chapter 63 of the Code as such, but amended by the Company BBA (the “Revised Partnership Audit Rules”). The Tax Matters Representative shall reimburse resign if it is a Defaulting Member or if it is no longer a Member. In the event of the resignation of the Tax Matters Representative for all reasonable out-of-pocket costs and expenses Representative, the Minority Member shall select a replacement.
(including attorneys’ and other professional feesb) incurred by it in its capacity as Tax Matters Representative. Each Member agrees to cooperate with the Company and the The Tax Matters Representative is authorized and required to do or refrain from doing any or all things reasonably requested by represent the Company or the Tax Matters Representative in connection with any examination all examinations of the Company’s affairs by any federal, state, or local tax authoritiesTaxing Authorities, including resulting administrative and judicial proceedings, and to expend Company funds for professional services and costs associated therewith. The Company Tax Matters Representative shall defendpromptly notify the Minority Member in writing of the commencement of any tax audit of the Company, indemnifyupon receipt of a tax assessment and upon the receipt of a notice of final partnership adjustment, and hold harmless shall keep the Minority Member reasonably informed of the status of any tax audit and resulting administrative and judicial proceedings.
(c) To the extent permitted by applicable law and regulations, the Tax Matters Representative against will cause the Company to annually elect out of the Revised Partnership Audit Rules pursuant to Code Section 6221(b). For any year in which applicable law and all liabilities sustained or incurred as a result regulations do not permit the Company to elect out of the Revised Partnership Audit Rules, then within forty-five (45) days of any act notice of final partnership adjustment, the Tax Matters Representative will cause the Company to elect the alternative procedure under Code Section 6226, and furnish to the Internal Revenue Service and each Member during the year or decision concerning years to which the notice of final partnership adjustment relates a statement of the Member’s share of any adjustment set forth in the notice of final partnership adjustment.
(d) Each Member agrees that such Member shall not treat any Company tax matters and within the scope of item inconsistently on such Member’s responsibilities as Tax Matters Representativefederal, so long as such act state, foreign or decision was done or made in good faith and does not constitute gross negligence or willful misconduct.
(b) If other income tax return with the Company pays an imputed underpayment pursuant to Section 6225 treatment of the Code item on the Company’s return. Any deficiency for taxes imposed on any Member (including penalties, additions to tax or any similar provision of state, local or non-U.S. law, to the extent possible, the portion thereof attributable to a Member shall be treated as a withholding tax interest imposed with respect to such Partner taxes and any taxes imposed pursuant to Code Section 6226) will be paid by such Member and if required to be paid (and actually paid) by the Company, will be recoverable from such Member as provided in Section 6.03(d).
(e) The Tax Matters Representative will make an election under Code Section 5.06. To 754, if requested in writing by a Member.
(f) The provisions of this Section 11.04 shall survive the extent that such portion termination of an imputed underpayment cannot be withheld from a current distribution, the applicable Member (or former Member) shall be liable to the Company or the termination of any Member’s Membership Interest in the Company and shall remain binding on the Member for as long a period of time as is necessary to resolve with the amount that cannot be so offsetInternal Revenue Service or any other Taxing Authority any and all matters regarding the taxation of the Company or the Members. The Members acknowledge Each Member shall ensure that the Company may make the election described in Section 6226 of the Code and any analogous election under state, local or non-U.S. law to the extent such election is available under applicable law, instead of paying an imputed underpaymenthas its correct mailing address at all times.
Appears in 1 contract
Tax Matters Representative. (a) The Managing Members hereby appoint the Majority Member shall cause the Company to take all necessary actions required by Law to designate Pubco as the “tax matters partner” within the meaning given to such term in Section 6231 of the Code (as in effect prior to the repeal of such section pursuant to the Bipartisan Budget Act of 2015) with respect to any taxable year of the Company beginning on or before December 31, 2017. The Managing Member shall further cause the Company to take all necessary actions required by Law to designate Pubco as the “partnership representative” within the meaning of as provided in Code Section 6223(a) of the Code with respect to any taxable year of the Company beginning after December 31, 2017, and if the “partnership representative” is an entity, the “partnership representative” is hereby authorized to appoint a “designated individual” within the meaning of Treasury Regulation Section 301.6223-1(b) (in such capacities, collectively, the “Tax Matters Representative”). The Tax Matters Representative shall have all appoint an individual (the “Designated Individual”) meeting the requirements of Treasury Regulation Section 301.6223-1(c)(2) as the rights, duties, powers and obligations provided for in the Code with respect sole person authorized to the Company. The Company shall not be obligated to pay any fees or other compensation to represent the Tax Matters Representative in its capacity audits and other proceedings governed by the partnership audit procedures set forth in Subchapter C of Chapter 63 of the Code as suchamended by the BBA (the “Revised Partnership Audit Rules”). The Tax Matters Representative shall resign if it is no longer a Member. In the event of the resignation of the Tax Matters Representative, but the Company Minority Member shall reimburse select a replacement. Any person appointed as the Designated Individual shall be subject to the requirements and obligations of the Tax Matters Representative for all reasonable out-of-pocket costs and expenses purposes of this Section 11.04.
(including attorneys’ and other professional feesb) incurred by it in its capacity as Tax Matters Representative. Each Member agrees to cooperate with the Company and the The Tax Matters Representative is authorized and required to do or refrain from doing any or all things reasonably requested by represent the Company or the Tax Matters Representative in connection with any examination all examinations of the Company’s 's affairs by any federal, state, or local tax authoritiesTaxing Authorities, including resulting administrative and judicial proceedings, and to expend Company funds for professional services and costs associated therewith. The Company Tax Matters Representative shall defendpromptly notify the Minority Member in writing of the commencement of any tax audit of the Company, indemnifyupon receipt of a tax assessment and upon the receipt of a notice of final partnership adjustment, and hold harmless shall keep the Minority Member reasonably informed of the status of any tax audit and resulting administrative and judicial proceedings. Without the consent of the Minority Member, the Tax Matters Representative against shall not extend the statute of limitations, file a request for administrative adjustment, file suit relating to any and all liabilities sustained or incurred as a result of any act or decision concerning Company tax matters and within refund or deficiency or enter into any settlement agreement relating to items of income, gain, loss or deduction of the scope of such Member’s responsibilities as Tax Matters Representative, so long as such act or decision was done or made in good faith and does not constitute gross negligence or willful misconductCompany with any Taxing Authority.
(bc) If To the extent permitted by applicable law and regulations, the Tax Matters Representative will cause the Company pays an imputed underpayment to annually elect out of the Revised Partnership Audit Rules pursuant to Code Section 6225 6221(b). For any year in which applicable law and regulations do not permit the Company to elect out of the Revised Partnership Audit Rules, then within 45 days of any notice of final partnership adjustment, unless the Members otherwise agree in writing, the Tax Matters Representative will cause the Company to elect the alternative procedure under Code Section 6226, and furnish to the Internal Revenue Service and each Member during the year or years to which the notice of final partnership adjustment relates a statement of the Member's share of any similar provision adjustment set forth in the notice of final partnership adjustment.
(d) Each Member agrees that such Member shall not treat any Company item inconsistently on such Member's federal, state, local foreign or non-U.S. lawother income tax return with the treatment of the item on the Company's return. Any deficiency for taxes imposed on any Member (including penalties, additions to the extent possible, the portion thereof attributable to a Member shall be treated as a withholding tax or interest imposed with respect to such Partner taxes and any taxes imposed pursuant to Code Section 6226) will be paid by such Member and if required to be paid (and actually paid) by the Company, will be recoverable from such Member as provided in Section 6.02(d).
(e) The Company will make an election under Code Section 5.06. To 754, if requested in writing by a Member.
(f) The provisions of this Section 11.04 and the extent that such portion obligations of an imputed underpayment cannot be withheld from a current distribution, the applicable Member (or former Member) Member pursuant to Section 11.04 shall be liable to survive the termination, dissolution, liquidation, and winding up of the Company for and the amount that cannot be so offset. The Members acknowledge that the Company may make the election described in Section 6226 Transfer of the Code and any analogous election under state, local or non-U.S. law to the extent such election is available under applicable law, instead of paying an imputed underpaymenta Member's Membership Interest.
Appears in 1 contract
Samples: Limited Liability Company Agreement (iMedia Brands, Inc.)
Tax Matters Representative. (a) a. The Managing Member Company shall cause the Company to take all necessary actions required by Law to designate Pubco as the “tax matters partner” within the meaning given to such term in Section 6231 a Person of the Code (as in effect prior Board’s choice to the repeal of such section pursuant to the Bipartisan Budget Act of 2015) with respect to any taxable year of the Company beginning on or before December 31, 2017. The Managing Member shall further cause the Company to take all necessary actions required by Law to designate Pubco be designated as the “partnership representative” within the meaning of Section 6223(a) of the Code with respect to any taxable year of the Company beginning after December 31for purposes of the Partnership Audit Rules and to serve in any related role for purposes of applicable state, 2017, and if the “partnership representative” is an entity, the “partnership representative” is hereby authorized to appoint a “designated individual” within the meaning of Treasury Regulation Section 301.6223local or non-1(b) U.S. tax law (in each such capacities, collectivelycapacity, the “Tax Matters Representative”). The In addition, if the Tax Matters Representative is not a natural person, the Company shall cause to be selected an individual of the Board’s choice to act on behalf of as the Tax Matters Representative (the “Designated Individual”). All rights, powers and authorities conferred upon the Tax Matters Representative shall have all of also be conferred upon the rightsDesignated Individual. Except as otherwise provided herein, duties, powers and obligations provided for in the Code with respect to the Company. The Company shall not be obligated to pay any fees or other compensation to the Tax Matters Representative is authorized to take, and shall determine in its sole discretion whether or not the Company will take, such actions and execute and file all statements and forms on behalf of the Company that are permitted or required by the applicable provisions of the Partnership Audit Rules, including the authority to represent the Company before taxing authorities and courts in tax matters affecting the Company and the parties in their capacity as such, but “partners” of the Company shall reimburse for U.S. federal income tax purposes. In addition, the Tax Matters Representative for all reasonable out-of-pocket costs and expenses (including attorneys’ and other professional fees) incurred by it shall be authorized to make any election under the Partnership Audit Rules in its capacity sole discretion, including the election under Section 6226 of the Partnership Audit Rules. In all matters within the scope of its role as Tax Matters Representative, the Tax Matters Representative shall act in accordance with direction from the Board. Each Member party agrees to cooperate with the Company and the Tax Matters Representative and to use commercially reasonable efforts to do or refrain from doing any or all things reasonably requested required by the Company or the Tax Matters Representative (including paying any and all resulting taxes, additions to taxes, penalties and interests in a timely manner) in connection with any examination of the Company’s affairs by any U.S. federal, state, state or local tax authorities, including any resulting administrative and judicial proceedings. The .
b. Notwithstanding Section 27(a), in the case of any taxable year of the Company shall defendwith respect to which MM is treated as a partner of the Company for U.S. federal income tax purposes, indemnify, and hold harmless the Tax Matters Representative against any shall (and all liabilities sustained or incurred as a result of any act or decision concerning the Company tax matters and within shall cause the scope of such Member’s responsibilities as Tax Matters RepresentativeRepresentative to) (i) consult with MM prior to taking any material action (or refraining from taking any material action) under the BBA Rules, so long (ii) take such material actions (or refrain from taking such material actions) as MM agree (such act agreement not to be unreasonably withheld, conditioned or decision was done delayed), and (iii) unless MM otherwise agrees (such agreement not to be unreasonably withheld, conditioned or made in good faith delayed), the Tax Matters Representative shall (and does not constitute gross negligence or willful misconduct.
(b) If the Company pays an imputed underpayment pursuant shall cause the Tax Matters Representative to) use reasonable best efforts to Section 6225 of the Code or any similar provision of state, local or non-U.S. law, to the extent possible, the portion thereof attributable to make a Member shall be treated as a withholding tax with respect to such Partner “push out” election under Section 5.06. To the extent that such portion of an imputed underpayment cannot be withheld from a current distribution, the applicable Member (or former Member) shall be liable to the Company for the amount that cannot be so offset. The Members acknowledge that the Company may make the election described in Section 6226 of the Code at a time and any analogous in a manner such that MM (and each direct or indirect owner of MM that is a partnership for U.S. federal income tax and relevant state and local tax purposes) is able to make a corresponding push out election under state, local or non-U.S. law (and in no event later than the date that is 20 days prior to the extent applicable deadline for making such election election) such that the underlying tax is available under applicable law, instead borne by the ultimate owners of paying an imputed underpaymentMM who are not partnerships for U.S. federal income tax and relevant state and local tax purposes.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Orgenesis Inc.)
Tax Matters Representative. (a) The Managing Members hereby appoint the Majority Member shall cause the Company to take all necessary actions required by Law to designate Pubco as the “tax matters partner” within the meaning given to such term in Section 6231 of the Code (as in effect prior to the repeal of such section pursuant to the Bipartisan Budget Act of 2015) with respect to any taxable year of the Company beginning on or before December 31, 2017. The Managing Member shall further cause the Company to take all necessary actions required by Law to designate Pubco as the “partnership representative” within the meaning of as provided in Code Section 6223(a) of the Code with respect to any taxable year of the Company beginning after December 31, 2017, and if the “partnership representative” is an entity, the “partnership representative” is hereby authorized to appoint a “designated individual” within the meaning of Treasury Regulation Section 301.6223-1(b) (in such capacities, collectively, the “Tax Matters Representative”). The Tax Matters Representative shall have all appoint an individual (the “Designated Individual”) meeting the requirements of Treasury Regulation Section 301.6223-1(c)(3) as the rights, duties, powers and obligations provided for in the Code with respect sole person authorized to the Company. The Company shall not be obligated to pay any fees or other compensation to represent the Tax Matters Representative in its capacity audits and other proceedings governed by the partnership audit procedures set forth in Subchapter C of Chapter 63 of the Code as suchamended by the BBA (the “Revised Partnership Audit Rules”). The Tax Matters Representative shall resign if it is a Defaulting Member or if it is no longer a Member. In the event of the resignation of the Tax Matters Representative, but the Company Majority Member shall reimburse select a replacement. Any person appointed as the Designated Individual shall be subject to the requirements and obligations of the Tax Matters Representative for all reasonable out-of-pocket costs and expenses purposes of this Section 11.04.
(including attorneys’ and other professional feesb) incurred by it in its capacity as Tax Matters Representative. Each Member agrees to cooperate with the Company and the The Tax Matters Representative is authorized and required to do or refrain from doing any or all things reasonably requested by represent the Company or the Tax Matters Representative in connection with any examination all examinations of the Company’s affairs by any federal, state, or local tax authoritiesTaxing Authorities, including resulting administrative and judicial proceedings, and to expend Company funds for professional services and costs associated therewith. The Company Tax Matters Representative shall defendpromptly notify the Members in writing of the commencement of any tax audit of the Company, indemnifyupon receipt of a tax assessment and upon the receipt of a notice of final partnership adjustment, and hold harmless shall keep the Member reasonably informed of the status of any tax audit and resulting administrative and judicial proceedings.
(c) To the extent permitted by applicable law and regulations, the Tax Matters Representative against will cause the Company to annually elect out of the Revised Partnership Audit Rules pursuant to Code Section 6221(b). For any year in which applicable law and all liabilities sustained or incurred as a result regulations do not permit the Company to elect out of the Revised Partnership Audit Rules, then within forty-five (45) days of any act notice of final partnership adjustment, the Tax Matters Representative will cause the Company to elect the alternative procedure under Code Section 6226, and furnish to the Internal Revenue Service and each Member during the year or decision concerning years to which the notice of final partnership adjustment relates a statement of the Member’s share of any adjustment set forth in the notice of final partnership adjustment.
(d) Each Member agrees that such Member shall not treat any Company tax matters and within the scope of item inconsistently on such Member’s responsibilities as Tax Matters Representativefederal, so long as such act state, foreign, or decision was done or made in good faith and does not constitute gross negligence or willful misconduct.
(b) If other income tax return with the Company pays an imputed underpayment pursuant to Section 6225 treatment of the Code item on the Company’s return. Any deficiency for taxes imposed on any Member (including penalties, additions to tax or any similar provision of state, local or non-U.S. law, to the extent possible, the portion thereof attributable to a Member shall be treated as a withholding tax interest imposed with respect to such Partner taxes, and any taxes imposed pursuant to Code Section 6226) will be paid by such Member and if required to be paid (and actually paid) by the Company, will be recoverable from such Member as provided in Section 6.02(d).
(e) Notwithstanding anything herein to the contrary, any out-of-pocket expenses incurred by the Tax Matters Representative or the Designated Individual in carrying out their responsibilities and duties in such capacities under Section 5.06. To the extent that such portion of an imputed underpayment cannot be withheld from a current distribution, the applicable Member (or former Member) this Agreement shall be liable to an expense of the Company for which the amount that cannot Tax Matters Representative or the Designated Individual shall be so offset. reimbursed by the Company.
(f) The Members acknowledge that Tax Matters Representative will make an election under Code Section 754, if requested in writing by a Member.
(g) The provisions of this Section 11.04 and the obligations of a Member or former Member pursuant to Section 11.04 shall survive the termination, dissolution, liquidation, and winding up of the Company may make and the election described in Section 6226 Transfer of the Code and any analogous election under state, local or non-U.S. law to the extent such election is available under applicable law, instead of paying an imputed underpaymenta Member’s Membership Interest.
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