1 1 syed naved andrabi april 16, 2008 syed naved andrabi april 16, 2008 taxation aspects of...
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Syed Naved AndrabiApril 16, 2008
Syed Naved AndrabiApril 16, 2008
Taxation Aspects of International Taxation Aspects of International Mergers & Mergers &
Acquisitions.Acquisitions.
Taxation Aspects of International Taxation Aspects of International Mergers & Mergers &
Acquisitions.Acquisitions.
Andrabi & Gabriel Advocates Solicitors & Tax Attorneys’
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Areas of Interest Visited.Areas of Interest Visited.
Why Merge?Why Merge? Mergers & Acquisition.Mergers & Acquisition. Strategic Management Process.Strategic Management Process. Global Mergers & Pakistan Mergers. Global Mergers & Pakistan Mergers. Historical Trends.Historical Trends. Mergers & Acquisition Pakistan Legislation.Mergers & Acquisition Pakistan Legislation. Stakeholders’ Point of view.Stakeholders’ Point of view. Tax Consequences.. Acquirer & Acquire.Tax Consequences.. Acquirer & Acquire. Role of Tax Advisors.Role of Tax Advisors. Going Forward.Going Forward.
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Merger & Acquisition.Merger & Acquisition.
The significant corporate activity has made the The significant corporate activity has made the market truly global. Once the preserve of local market truly global. Once the preserve of local deals, the mid-market is now the source for deals, the mid-market is now the source for growth in cross border transactions that are growth in cross border transactions that are increasingly the norm in both acquisition and increasingly the norm in both acquisition and disposals activity. Entrepreneurial businesses disposals activity. Entrepreneurial businesses have ever higher expectations of their advisers, have ever higher expectations of their advisers, demanding the ability to deliver ideas, demanding the ability to deliver ideas, expertise, relationships and resources in a expertise, relationships and resources in a seamless manner throughout the world’s major seamless manner throughout the world’s major corporate centers.corporate centers.
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Why Merge?Why Merge?
Financial Motives:Financial Motives:• to reduce risk (the portfolio effect).to reduce risk (the portfolio effect).• to increase operating efficiency.to increase operating efficiency.• to improve access to financial markets. to improve access to financial markets. • to obtain a tax carry-forward benefit.to obtain a tax carry-forward benefit.• to eliminate competition & enhance profitability.to eliminate competition & enhance profitability.
Other Motives:Other Motives:• to expand marketing and management capabilities.to expand marketing and management capabilities.• to allow for new product development through R & D.to allow for new product development through R & D.• to provide synergistic benefits (the “2+2=5” effect).to provide synergistic benefits (the “2+2=5” effect).• To revive sick industry and render accelerated economic growth.To revive sick industry and render accelerated economic growth.
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Types of MergerTypes of Merger
Horizontal – between business competitors.
Vertical – Moving up or down the value chain.
Conglomerate – Unrelated sectors.
Forward – Merger of target into the acquirer.
Reverse – Merger of acquirer into the target.
Triangular – Use of an SPV for undertaking.
Demerger – Hive-off of an undertaking into a separate company.
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Modes of Mergers & Acquisitions.Modes of Mergers & Acquisitions.
M&A
Amalgamations
Merger De-merger
Acquisitions
Asset Purchase
Stock Purchase
SlumpSale
ItemizedSale
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Mergers & Acquisitions Defined.Mergers & Acquisitions Defined.
AcquisitionsMergers
One firm buys another firm.Two firms are combined on a relatively co-equal basis.
Parent stocks are usually retired and new stock issued.
Name may be the original or a combination.
One of the partners take over the dominant management
Can be by means of controlling share, a majority, or all of the target firm’s stock.
Can be friendly or hostile.
Usually done through a tender offer.
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Business Combinations. Business Combinations. According to International Financial Reporting Standard 3
(IAS 22-Withdrawn)
Business Combination. Business Combination.
““The bringing together of separate entities or businesses into one reporting The bringing together of separate entities or businesses into one reporting entity.” entity.”
Where the result of business combination is that one entity, the acquirer, Where the result of business combination is that one entity, the acquirer, obtains control of one or more other businesses , the acquiree.obtains control of one or more other businesses , the acquiree.
Business Combination Involving entities or businesses under common Business Combination Involving entities or businesses under common control.control.
““A business Combination in which all of the combining entities or businesses A business Combination in which all of the combining entities or businesses ultimately are controlled by the same party or parties both before and ultimately are controlled by the same party or parties both before and
after the combination, and that control is not transitory.”after the combination, and that control is not transitory.”
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Direct Stakeholders.
Enterprises / Companies.
• Shareholders.
Other Stakeholders. Customers.
Creditors/Suppliers.
Employees.
Government Authorities, e.g., Tax Authorities.
Corporate Mergers & Acquisition.
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The Strategic Management Process.The Strategic Management Process.
ObjectivesObjectives
InternalInternal
AnalysisAnalysis
MissionMission
ExternalExternal
AnalysisAnalysis
Strategic Choice
Strategy Implementation
Competitive Advantages
Which Business to Enter
1) Vertical Integration
2) Diversification
Strategic Alliances
Merger & Acquisitions
Mode of Entry
Corporate Level Strategy
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Top Ten Mergers-2008Top Ten Mergers-2008 Target NameTarget Name Acquirer NameAcquirer Name Deal DateDeal Date $ Value of$ Value of
Deal (M)Deal (M)
Yahoo! Inc (YHOO)Yahoo! Inc (YHOO) Microsoft Corp (MSFT)Microsoft Corp (MSFT) 02-01-200802-01-2008 43,711.6043,711.60
Inmobiliaria Colonial SA Inmobiliaria Colonial SA Investment Corp of Dubai {ICD} Investment Corp of Dubai {ICD} 01-31-200801-31-2008 15,213.2015,213.20
Rio Tinto PLC Rio Tinto PLC Shining Prospect Pte Ltd. Shining Prospect Pte Ltd. 02-01-200802-01-2008 14,284.2014,284.20
Alcon Inc (ACL)Alcon Inc (ACL) Novartis AG Novartis AG 04-07-200804-07-2008 10,547.5010,547.50
Bolsa de Valores de Sao Paulo {Bovespa} Bolsa de Valores de Sao Paulo {Bovespa} Bolsa Brasileira de Mercadorias Bolsa Brasileira de Mercadorias {BM&F} {BM&F}
02-20-200802-20-2008 10,309.1010,309.10
Millennium Pharmaceuticals Inc Millennium Pharmaceuticals Inc (MLNM)(MLNM)
Mahogany Acquisition Corp Mahogany Acquisition Corp 04-10-200804-10-2008 8,734.108,734.10
Citigroup Inc (C)Citigroup Inc (C) Government of Singapore Government of Singapore Investment Corp Pte Ltd {GIC} Investment Corp Pte Ltd {GIC}
01-15-200801-15-2008 6,880.006,880.00
Weyerhaeuser Co-Containerboard Weyerhaeuser Co-Containerboard Packaging & Recycling Business Packaging & Recycling Business
International Paper Co (IP)International Paper Co (IP) 03-17-200803-17-2008 6,000.006,000.00
MMX Mineracao e Metalicos SA-Certain MMX Mineracao e Metalicos SA-Certain Assets Assets
Anglo American PLC Anglo American PLC 01-17-200801-17-2008 5,500.005,500.00
Scania AB Scania AB Volkswagen AG Volkswagen AG 03-03-200803-03-2008 4,377.504,377.50
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Deal Wise Mergers.Deal Wise Mergers.
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Prominent Mergers in Pakistan.Prominent Mergers in Pakistan.20062006
Sr.Sr.NoNo
Name of CompanyName of Company New name of the New name of the company/merged withcompany/merged with
Date of Date of MergerMerger
Paidup Paidup CapitalCapital
RatioRatio
11 Second Tri Star ModarabaSecond Tri Star Modaraba First Tri Star ModarabaFirst Tri Star Modaraba 10/04/200610/04/2006 128.700128.700 [ 1.817:1 ][ 1.817:1 ]
22 ABAMCO Growth FundABAMCO Growth Fund UTP Growth FundUTP Growth Fund 06/06/200606/06/2006 275.625275.625 [ 1.845001:1 ][ 1.845001:1 ]
33 ABAMCO Stock Market FundABAMCO Stock Market Fund UTP Growth FundUTP Growth Fund 06/06/200606/06/2006 875.000875.000 [ 0.970229:1 ][ 0.970229:1 ]
44 ABAMCO Capital FundABAMCO Capital Fund UTP Growth FundUTP Growth Fund 06/06/200606/06/2006 2,029.4202,029.420 [ 0.898072:1 ][ 0.898072:1 ]
55 WORLDCALL Multimedia LtdWORLDCALL Multimedia Ltd WORLDCALL Telecom LtdWORLDCALL Telecom Ltd 09/06/200609/06/2006 530.000530.000 [ 1 : 1.27 ][ 1 : 1.27 ]
66 WORLDCALL Broadband LtdWORLDCALL Broadband Ltd WORLDCALL Telecom LtdWORLDCALL Telecom Ltd 09/06/200609/06/2006 1,500.0001,500.000 [ 1 : 1.09 ][ 1 : 1.09 ]
77 WORLDCALL Communication LtdWORLDCALL Communication Ltd WORLDCALL Telecom LtdWORLDCALL Telecom Ltd 09/06/200609/06/2006 1,831.7021,831.702 [ 1 : 1.42 ][ 1 : 1.42 ]
88 Modaraba A1-TijarahModaraba A1-Tijarah Modaraba A1-MaliModaraba A1-Mali 11/07/200611/07/2006 75.77875.778 CertificateCertificate
[ 91 : 2 ][ 91 : 2 ]
99 Atlas Investment Bank LimitedAtlas Investment Bank Limited Atlas Bank LimitedAtlas Bank Limited 26/07/200626/07/2006 506.024506.024 [ 1 : 3.14 ][ 1 : 3.14 ]
1010 Pakistan Papersack Corporation LtdPakistan Papersack Corporation Ltd Thal LimitedThal Limited 04/08/200604/08/2006 68.99368.993 [ 3.07 : 1 ][ 3.07 : 1 ]
1111 First Allied Bank ModarabaFirst Allied Bank Modaraba Allied Bank LimitedAllied Bank Limited 25/08/200625/08/2006 350.000350.000 [ 1 : 024 ][ 1 : 024 ]
1212 Colony Textile Mills LimitedColony Textile Mills Limited Colony Mills LimitedColony Mills Limited 28/08/200628/08/2006 250.000250.000 [ 1 : 9.50 ][ 1 : 9.50 ]
1313 Union Bank LimitedUnion Bank Limited Standard Chartered Bank Standard Chartered Bank LtdLtd
29/12/200629/12/2006 3,387.5053,387.505 [ 1 : 2.50 ][ 1 : 2.50 ]
1414 Jahangir Siddiqui Inv.Bank LtdJahangir Siddiqui Inv.Bank Ltd JS Bank LimitedJS Bank Limited 30/12/200630/12/2006 853.125853.125 [ 1 : 3.24 ][ 1 : 3.24 ]
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Prominent Mergers in Pakistan.Prominent Mergers in Pakistan.20082008
Sr.Sr.NoNo
Name of CompanyName of Company New name of the New name of the company/merged withcompany/merged with
Date of Date of MergerMerger
Paidup Paidup CapitalCapital
RatioRatio
11 PICIC Commercial Bank LimitedPICIC Commercial Bank Limited NIB Bank LimitedNIB Bank Limited 01/01/200801/01/2008 2,734.8752,734.875 [ 1 : 2.27 ][ 1 : 2.27 ]
22 Pakistan Industrial Credit & Pakistan Industrial Credit & Investment Corp. Ltd (PICIC)Investment Corp. Ltd (PICIC)
NIB Bank LimitedNIB Bank Limited 01/01/200801/01/2008 4,152.7204,152.720 [ 1 : 3.18 ][ 1 : 3.18 ]
20072007
Sr.Sr.NoNo
Name of CompanyName of Company New name of the New name of the company/merged withcompany/merged with
Date of Date of MergerMerger
Paidup Paidup CapitalCapital
RatioRatio
11 Guardian ModarabaGuardian Modaraba B.R.R. International B.R.R. International ModarabaModaraba
25/05/200725/05/2007 244.695244.695 [ 1 : 1.22 ][ 1 : 1.22 ]
22 Crescent Standard Investment Crescent Standard Investment Bank LtdBank Ltd
Innovative Housing Finance Innovative Housing Finance LimitedLimited
20/07/200720/07/2007 1,257.6101,257.610 [ 0.005 : 1 ][ 0.005 : 1 ]
33 Dewan Hatter Cement LimitedDewan Hatter Cement Limited Dewan Cement LimitedDewan Cement Limited 22/10/200722/10/2007 2,565.0002,565.000 [ 1 : 0.75 ][ 1 : 0.75 ]
44 Suzuki Motorcycles Pakistan LtdSuzuki Motorcycles Pakistan Ltd Pak Suzuki Motor Company Pak Suzuki Motor Company LtdLtd
29/10/200729/10/2007 438.989438.989 [ 21 : 1 ][ 21 : 1 ]
55 International Housing Finance LtdInternational Housing Finance Ltd KASB Bank LimitedKASB Bank Limited 22/11/200722/11/2007 450.000450.000 [ 1 : 1.30 ][ 1 : 1.30 ]
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IndiaIndia
FranceFrance
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United Kingdom.United Kingdom.
United States of America.United States of America.
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Historical Trends.Historical Trends.FIRST WAVE (1893-1904).FIRST WAVE (1893-1904).
Time of the major Time of the major horizontal mergershorizontal mergers.. Major mergers were in Major mergers were in SteelSteel,, Telephone,Telephone, Oil,Oil, Mining,Mining, RailroadRailroad
etc.etc. The First World War caused end of the first wave.The First World War caused end of the first wave.
SECOND WAVE (1919-1929).SECOND WAVE (1919-1929). The period in which The period in which vertical integrationvertical integration started. started. The major automobile manufacturers emerged in this period. For The major automobile manufacturers emerged in this period. For
example, FORD.example, FORD. The 1929 Crash and the Great Depression ended this wave.The 1929 Crash and the Great Depression ended this wave.
THIRD WAVE (1955-1973).THIRD WAVE (1955-1973). In this period In this period the conglomerate conceptthe conglomerate concept took hold. took hold. Major conglomerates were IT&T (Harold Geneen) LTV Major conglomerates were IT&T (Harold Geneen) LTV (Jimmy (Jimmy Ling) Teledyne (Henry Singleton) Litton (Tex Ling) Teledyne (Henry Singleton) Litton (Tex Thornton).Thornton). The conglomerate stocks crashed in 1969-70.The conglomerate stocks crashed in 1969-70.
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Historical Trends. Historical Trends. FOURTH WAVE (1974-1989).FOURTH WAVE (1974-1989). Generally referred to as the merger wave, or Generally referred to as the merger wave, or takeover takeover wave.wave. It ended in 1989-90 with the collapse of the junk bond market, It ended in 1989-90 with the collapse of the junk bond market,
along with the collapse of the savings and loan banks and the along with the collapse of the savings and loan banks and the serious loan portfolio and capital problems of the commercial serious loan portfolio and capital problems of the commercial banks.banks.
FIFTH WAVE (1993-2000).FIFTH WAVE (1993-2000).
This was the era of the This was the era of the mega-dealmega-deal.. Mergers of Citibank and Travelers.Mergers of Citibank and Travelers. Chrysler and Daimler Benz.Chrysler and Daimler Benz. AOL and Time Warner.AOL and Time Warner. Vodafone and Mannesmann.Vodafone and Mannesmann.
It ended with the bursting of the Millennium Bubble and the It ended with the bursting of the Millennium Bubble and the great scandals, like Enron, which gave rise to the great scandals, like Enron, which gave rise to the revolution in revolution in corporate governancecorporate governance..
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Historical Trends. Historical Trends.
SIXTH WAVE (2002 Onwards).SIXTH WAVE (2002 Onwards).
Principle factors are:Principle factors are:
Globalization.Globalization. Encouragement by the governments of some countries (e.g., Encouragement by the governments of some countries (e.g.,
France, Italy and Russia) to create strong national or global France, Italy and Russia) to create strong national or global champions.champions.
The rise in commodity prices.The rise in commodity prices. The availability of low-interest financing.The availability of low-interest financing. Hedge fund and other shareholder activism.Hedge fund and other shareholder activism. Tremendous growth of private equity funds.Tremendous growth of private equity funds.
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Controlling Authorities.Controlling Authorities.
NBFI’sNBFI’s SECP SECP
BanksBanks SBPSBP
OtherOther High CourtHigh Court
The Competition Commission of Pakistan The Competition Commission of Pakistan (CCP-Monopoly Control Authorities) has (CCP-Monopoly Control Authorities) has oversight in respect of all mergers. oversight in respect of all mergers.
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Legislation Dealing Mergers in a Legislation Dealing Mergers in a Particular Sector.Particular Sector.
Section 48 of the Banking Companies Ordinance, 1962
282L of Companies Ordinance, 1984
Section 67 to 71 of the Insurance Ordinance, 2000 and application to High Court
For Banking Companies.
For N.B.F.Cs
For Insurance Companies.
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Specific Laws Dealing Mergers.Specific Laws Dealing Mergers.
Section 287 to 289 read with Section 282L & 284 of the Section 287 to 289 read with Section 282L & 284 of the Companies Ordinance, 1984 applies to mergers involving Companies Ordinance, 1984 applies to mergers involving
companies incorporated under the laws of Pakistancompanies incorporated under the laws of Pakistan. .
Section 2 (1A); 20 (3); 57A, 97; 97A & Clause 62 of Part Section 2 (1A); 20 (3); 57A, 97; 97A & Clause 62 of Part IV of Second Schedule to the Income Tax Ordinance, IV of Second Schedule to the Income Tax Ordinance, 2001.2001.
Section 11 of Competition Ordinance, 2007.Section 11 of Competition Ordinance, 2007.
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Legislation Legislation onon Foreign Investment. Foreign Investment.
Board of Investment and Foreign Exchange Board of Investment and Foreign Exchange Regulation contain certain exceptions and Regulation contain certain exceptions and
restrictions for non-residents for which restrictions for non-residents for which general or special permission is required.general or special permission is required.
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Section 2 (1A) of the Income Tax Ordinance, Section 2 (1A) of the Income Tax Ordinance,
20012001 Amalgamation means the merger of one or more
1. banking companies or 2. non-banking financial institutions, or 3. insurance companies, or 4. companies owning and managing industrial undertakings or 5. companies engaged in providing services and not being a trading company or
companies.
In such manner that –
The assets of the amalgamating company or companies immediately before the amalgamation become the assets of the amalgamated company by virtue of the amalgamation, otherwise than by purchase of such assets by the amalgamated company or as a result of distribution of such assets to the amalgamated company after the winding up of the amalgamating company or companies; and
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Section 2 (1A) of the Income Tax Ordinance, 2001Section 2 (1A) of the Income Tax Ordinance, 2001
The liabilities of the amalgamating company or companies immediately before the amalgamation become the liabilities of the amalgamated company by virtue
of the amalgamation
Requisite criterion
One company must be a public company or
A company incorporated under Companies Ordinance,1984 or under any other law for the time being in force,
Requisite criterion
One company must be a public company or
A company incorporated under Companies Ordinance,1984 or under any other law for the time being in force,
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Merger/Amalgamation. Merger/Amalgamation.
From Members/Shareholders
Point of View
From the Point of View of Company to be Merged/Amalgamating.
From the Point of View of
Amalgamated
Company.
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From Members/Shareholders Point of ViewFrom Members/Shareholders Point of View
• [S. 2(19)(a)] - “Dividend” includes distribution of accumulated profit entailing release of assets of the company possessing profit.
• [S. 2(19)(c)&(d)] - Distribution on liquidation or reduction of capital
• In merger / amalgamation, no distribution of accumulated profit takes place thus no release of asset.
Is exchange of shares treated as Dividend?
• Section 37 (5) - Shares are Capital Asset • No “Disposal” i.e. sale / transfer /
exchange / relinquishment etc. involved.
• If exchange / relinquishment is treated as “Disposal” even then no gain / loss arises
Taxability regarding exchange of shares?
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From the Point of View of Company to be From the Point of View of Company to be Merged/Amalgamated. Merged/Amalgamated.
• S 97 & 97A - No gain or loss is taxable subject to certain conditions.
• Amalgamating companies are resident and belong to wholly owned group.
• In case of Section 97 the condition of both companies to be resident shall not apply in light of clause 62 of Part IV of 2nd Schedule.
• Gain of amalgamating companies are taxable if the above criteria is not fulfilled under the Income Tax Ordinance, 2001
Taxability of gain on transfer of assets and liabilities?
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From Amalgamated Company Point of View.
• S 76 - Relating to cost of purchase.
• S 98C, concerning succession.
• The tax value of assets in the hands of amalgamating company (immediately before amalgamation) shall be taken as the tax value for amalgamated company
Tax value of assets / liabilities acquired?
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From Amalgamated Company’s Point of View.
• Goodwill an intangible or capital asset – a dilemma?
• Treatment of goodwill?
• Difference between ‘Tax-value’ and ‘Accounting value’ of assets?
What about goodwill taxation?
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From the Amalgamated Company’s Point of View.
S 20(3) - Only expenditures incurred under following heads are tax deductible –
•Legal Advisory Services•Financial Advisory Services•Administrative expenses – Planning and Implementation of
amalgamation
What is the treatment of merger related expenses?
What about carry forward and set-off of losses sustained by the amalgamating company ?
S. 57A - In the year of amalgamation only assessed loss of the amalgamating companies for the tax year is available for the set off. The facility to set off accumulated losses of amalgamating companies has been taken away from July 01, 2007.
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Tax Consequence in Case of Acquisitions.
Acquirer point of view
Acquiree point of view
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Acquirer Point of View.
• In case of non-arm’s length transaction the fair market value may be treated as consideration as cost of acquisition [S. 76 & 78]
• Tax treatment for payment of goodwill.
• Tax deductibility of consideration paid under restrictive covenants ?
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Acquiree Point of View.
• Transfer of assets and liabilities have tax implications depending on the basis of nature of asset.
• Consideration may be taken at higher of the actual selling price or Fair Market Value [S. 77]
• Slump sale principle – Applicability ? [S. 77]
• Consideration under restrictive covenant – whether capital or revenue?
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Role of tax Advisor in Mergers & Role of tax Advisor in Mergers & Acquisitions.Acquisitions.
International mergers and acquisitions require International mergers and acquisitions require appropriate planning.appropriate planning.
Planning will end after consideration of domestic Planning will end after consideration of domestic laws effect on home country & other country laws effect on home country & other country laws. laws.
Effective consideration will be whether to merge Effective consideration will be whether to merge or acquire.or acquire.
If to acquire consideration to be given to manner If to acquire consideration to be given to manner of acquisition.of acquisition.
To acquire the business as a whole, slump To acquire the business as a whole, slump transaction or through shares or as an asset transaction or through shares or as an asset purchase.purchase.
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Going Forward.Going Forward.
Consistency in Policies.Consistency in Policies. Facilitate & Encourage Regional Mergers.Facilitate & Encourage Regional Mergers. Level Playing Field.Level Playing Field. Conducive Industrial Environment for Intra Conducive Industrial Environment for Intra
Regional Investment.Regional Investment. Common Legislation.Common Legislation. Removal of Trade Barriers.Removal of Trade Barriers.
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Thank You