TAXES AS MOTIVATORS AND PREDICTORS OF COMPANY RESTRUCTURING

Abstract

There seems to be a common pattern in the way Member States have addressed taxation of company reorganizations. After some uncertainty, operations affecting corporate and shareholding structures were considered as sources of taxable capital gains. As might have been expected, this hindered a more efficient capital allocation, leading to the enforcement of special laws granting limited and conditional exemption aiming to ease the transfer of undertakings, often with extra advantages than what would be necessary. A deeper rethinking
about the very nature of corporate finance transactions at a later stage defined the problem and brought an across-the-board enactment of general provisions for corporate restructuring, inspired by tax-neutrality: roll-over relief and tax deferral, further underpinned by Community law, have since become standards for addressing mergers, divisions, and, to some extent, transfer of assets and exchange of shares. It is arguable whether tax neutrality granted to reorganizations does represent a waiver to the realization principle, or whether instead it is a consistent development of the legal concept of taxable income.
In the former case there would be some grounds to challenge tax neutrality in company restructuring operations that lack commercial reasons through purposive construction or anti-abuse clauses or principles. In the latter, antiavoidance rules should be limited to thwart circumvention of the statutory scope and the spirit of tax law, irrespective of the business purposes of the transactions carried out.