Taxation Aspects of M&A and Stamp duty

Transcription

1 Taxation Aspects of M&A and Stamp duty February 2011 Prashant Kapoor

2 Presentation Outline 1 Taxation Aspects 2 Stamp Duty Aspects 1

3 Taxation Aspects of M&A

4 Mergers & Acquisitions ( M&A ) Modes of M&A Amalgamations / Merger De-merger Acquisitions Asset Purchase Share Purchase Slump Sale Itemized Sale Buy-back Capital Reduction 3

5 Key Considerations Tax Neutrality Appointed Date Carry forward losses & unabsorbed depreciation Key Considerations Deemed Dividend Continuity of tax incentives/ benefits Minimum Alternate Tax 4

6 Taxation Aspects of M&A Tax Neutrality Compliance with specific definitions/ conditions of Amalgamation / Demerger Compliance with definitions / conditions results into a no tax position to the Company(s) and their shareholders Specific benefits available under the Act Prudent to specifically mention in the Scheme that the Amalgamation and De-merger is in Compliance with the conditions prescribed under Sec 2(1B) and 2(19AA) of the Act 5

7 Taxation Aspects of M&A Appointed Date Choice of Appointed date Not specifically defined in the Act Interpreted based on rulings of the Apex High Court - The date of amalgamation is the date mentioned in the scheme and approved by the court unless the Court specifies any other date* Relevant for tax purposes as it is classified as the date of amalgamation / de-merger * Marshall sons and co. (India) ltd. vs ITO 223 ITR 809 6

8 Taxation Aspects of M&A Utilization of losses & unabsorbed depreciation Section 72A of the Act Amalgamation/ Merger Carry forward of accumulated business losses and unabsorbed depreciation allowed to Amalgamating Company - Subject to compliance of conditions by the Amalgamating and Amalgamated Company pre and post merger Fresh lease of life of 8 years to business losses of Amalgamated Company from date of amalgamation De-merger Benefit of set-off of accumulated business losses & unabsorbed depreciation related to the De-merged undertaking available to the Resultant Co - Not directly relatable brought forward losses & unabsorbed depreciation proportionate to the assets transferred Undertaking need not be an Industrial Undertaking, unlike in Amalgamation No fresh lease of life available for carry forward of business losses on de-merger 7

9 Taxation Aspects of M&A Utilization of losses & unabsorbed depreciation Section 79 of the Act Applicable to closely held companies - companies other than companies in which public are substantially interested No carry forward / set off of accumulated business losses - in case common shareholding of 51% is not maintained as on last day of the financial year Does not affect the losses of the year in which change in shareholding takes place Includes all losses except carry forward / set off of unabsorbed depreciation* * CIT v Kalpaka enterprises (P) Ltd (157 ITR 658), CIT v Concord Industries (119 ITR 458 8

10 Sec 72A vs. Sec 79 Case Study# 1 ABC Co XYZ Co A Co Services & Investment business X Co Manufacturing business Facts of the Case A Co & X Co are closely held companies A Co has accumulated losses in services business Proposal to consolidate A Co and X Co Merger of A Co with X Co Reverse merger of X Co with A Co De-merger of Services business of A Co into X Co 9

11 Sec 72A vs. Sec 79 Case Study# 2 Facts of the case P Co P Co acquired 100% stake in Q Co (a private company) on 30 th September 2010 It is proposed to merge Q Co into P Co Q Co have accumulated losses for the FY and FY Q Co 100% 1 2 Applicability of Sec 72A vs. Sec 79 Appointed Date: 1 st April 2010 or 1 st April 2011? 10

12 Taxation Aspects of M&A Continuity of Tax Incentives / benefits Tax Incentives are either based on business (u/s 80-IA/80IB/10B) or Area/ Region based (u/s 80-IC/10A /10C) Continuity of unexpired period of tax holiday to the transferee company in amalgamation / de-merger except u/s Section 80-IA(12A) Explicit provisions are not provided for Slump sale in the Act 11

13 Taxation Aspects of M&A Transfer of MAT Credit MAT payable on book profits in the absence of Nil/lower tax profits Credit for MAT allowable to the assessee company who has paid such taxes - Amalgamating Co ceases to exists after amalgamation. No specific provision for carry forward of MAT credit in case of amalgamation or de-merger Recent Judicial precedents allowing the credit to Transferee Company* Set-off of brought forward losses of Transferor Co for MAT purposes # * 28 ITAT India 998 (Mum.) ITA No. 313/Mum./07 A.Y # DCIT Vs Beck India Limited 12

14 Taxation Aspects of M&A Deemed Dividend Definition includes certain distributions or payments made by a company and the same are deemed to be dividends in the hands of receiver - Distribution of accumulated profits entailing to release of Assets - Distribution of debentures etc and bonus shares to preference share holders - Distribution on liquidation - Distribution on Capital Reduction Deemed dividend to the extent of accumulated profits - Payment of any sum by way of advance or loan Deeming provisions only applicable to closely held companies Exclusions : Buy-back u/s 77A of the Companies Act.1956 and issue of shares by the resultant company in de-merger 13

15 Issues: 1 Issue of consideration other than equity shares in Amalgamations/ De-mergers viz., preference share or cash 2 Amalgamation/ De-mergers from subsidiary company into holding company 3 Override effect: Section 79 vs Section 72A 4 Whether Sec 79 would get triggered on inter se transfer of shares between the same group of shareholders? 14

16 Stamp Duty Aspects

17 Stamp Duty Aspects Constitutional Powers and The Legislature States specific entries for conveyance on merger or de-merger Past litigations on levy of stamp on High Court Order for merger or de-merger Draft amendment bill released containing the proposed amendments in Indian Stamp Act, 1899 ( ISA ) 16

18 Constitutional Powers and The Legislature State Enactment Enacted separate Acts Maharashtra, Gujarat, Karnataka, Kerala, Rajasthan, Jammu & Kashmir Schedule 1-A added to the ISA by State amendments Andhra Pradesh, Madhya Pradesh, Bihar, Orissa, West Bengal, Punjab, Haryana, Himachal Pradesh, Chandigarh & Delhi etc Changes made in the Articles of Schedule 1 itself Tamil Nadu, Assam & other North Eastern States 17

19 Levy of Stamp Duty Liability to pay stamp duty arises in state if The Instrument is mentioned in the Schedule to the (State) Stamp Act AND The Instrument is executed in that State Location of the property is not relevant OR Having executed outside the State, the instrument is brought or received in the State & relates to any property situated in the State; or any matter or thing done or to be done in the State Stamp duty is levied on the instrument and not on the transaction 18

20 Stamp Duty Merger/ De-merger Approval of the High Courts having jurisdiction over registered office of transferor & transferee company Provisions levying duty on High Court Order under Sec 394 of the Companies Act, 1956 States where there is a specific entry for conveyance on merger or demerger States where there is no specific entries & High Court have ordered for payment of stamp duty States where there is no specific entry for conveyance on merger or demerger Maharashtra, Gujarat, Karnataka, Madhya Pradesh, West Bengal, Andhra Pradesh & Rajasthan Delhi (Delhi Tower Limited) Uttar Pradesh (Hero Motors and other Applicants) Indian Stamp (Delhi Amendment) Bill 2010 provides for levy of stamp duty on High Court Order u/s 394 Duty may be payable as per Supreme Court s judgment in Hindustan Levers Limited Vs State of Maharashtra at Stamp Duty rates applicable for Conveyance Increasing trend towards levy of stamp duty on High Court Order 19

21 State Specific Stamp Duty entries on High Court Order Based on value of shares Maharashtra (Merger & De-merger) A. 10% of MV of shares issued or allotted and consideration paid on merger/demerger B. 5% of the MV of immovable property located in Maharashtra C. 0.7% of the MV of shares issued or allotted and consideration paid on merger/demerger Higher of B or C shall not exceed A (Overall cap of Rs 25 Cr) West Bengal (Merger & De-merger) A. 8% of MV of shares issued or allotted and consideration paid on merger/demerger B. 2% of the MV of immovable property located in West Bengal C. 0.5% of MV of shares issued or allotted & consideration paid on merger/demerger Higher of B or C shall not exceed A (Overall cap of Rs 25 Cr) Madhya Pradesh (Merger & De-merger) A. 8% of MV of shares issued or allotted and consideration paid on merger B. 7% of the MV of immovable property located in Madhya Pradesh C. 0.7% of MV of shares issued or allotted & consideration paid on merger/demerger Higher of B or C shall not exceed A 20

22 State Specific Stamp Duty entries on High Court Order Based on value of shares Gujarat (Reconstruction & Merger) A. 1% of MV of shares or the face value of shares issued or allotted (as the case may be) and the amount of consideration B. 1% of the MV of immovable property located in Gujarat Higher of A or B, (Overall cap of Rs 10 Cr Karnataka (Merger & De-merger) A. 7% of the MV of immovable property located in Karnataka B. 0.7% of MV of shares issued or allotted and in case of a Subsidiary Co, shares merged (or cancelled) with Parent Co and consideration paid on merger/ demerger Higher of A or B 21

23 State Specific Stamp Duty entries on High Court Order Based on Market Value of Property Rajasthan (Merger) Andhra Pradesh (Merger) A. 4% of the MV of the property (Market value of the property shall be deemed to be the total amount of value of shares issued and amount of consideration) A. 2% of the MV of the property (Market value of the property shall be deemed to be the total amount of value of shares issued and amount of consideration) 22

24 Issues: 1 Market value of shares as on Appointed Date or Effective Date 2 Merger/ de-merger of wholly owned subsidiary into Holding Co no issue of shares 3 Property includes movable and immovable property 4 Extra territorial nexus in certain states 23

25 Thank You For any questions, please feel free to contact: Prashant Kapoor, M&A - Tax Director Direct: prashantkapoor@kpmg.com

26 Glossary Co : Company FY : Financial Year ISA : Indian Stamp Act, 1899 Sec : Section MAT : Minimum Alternate Tax M&A : Merger and Acquisitions MV : Market Value The Act : Income Tax Act,