Tax Clawback Agreement

A tax clawback agreement is an arrangement whereby the tax benefits received from a given venture are reinvested into that venture to cover any cash shortages. A tax clawback is just one of many types of similar arrangements that cover various distributions such as profits, dividends or even stock distributions.

Tax clawbacks are among the most popular type of clawback arrangements, providing instant and easy access to additional financing. Clawbacks are also used to describe what, in effect, amounts to a return of previously distributed money.

For example, when Troubled Asset Relief Program (TARP) funds were used in some cases to finance executive bonuses in 2008, it prompted members of Congress to advocate for a tax clawback, whereby the executives in question would be forced to pay back some of the bonus money in the form of higher taxes.

In other words, say Company A agrees to take $100 million from the government to avoid bankruptcy, which would cost the economy thousands of jobs, and overall harm the country. Company A takes the money, but then uses the funds for bonuses and vacations for executives. Because the funds come with a tax clawback agreement, should Congress find out about Company A’s use of taxpayer money, politicians could claw back the funds and impose a higher tax rate on Company A going forward.

Tax clawbacks are a way for government to reclaim funds that have been abused in the private sector, and there are many situations where tax clawbacks may be necessary. In principle, however, the Internal Revenue Service (IRS) has the power to recover back taxes without a tax clawback agreement.

Clawback agreements can also exist in contracts between two private parties, in which one party contributes equity to a project or organization if the project or organization created tax benefits for the investor, but is now short on cash flow.

Dividend clawbacks are similar to tax clawbacks in that they involve reinvesting to cover cash shortages. A dividend clawback is an arrangement under which those financing a project agree to contribute, as equity, any prior dividends received from the project to cover any cash shortages. When there is no cash shortfall, those investors who provided funding are able to keep their dividends. A dividend clawback arrangement provides incentive for a project to remain on budget so that investors do not have to return dividends received prior to a cost overrun.