Laws hampering tax neutrality on restructuring

A big listed firm just lately introduced that it will cancel the fairness shares with differential voting rights (DVRs) that it had issued and as a substitute allot a lesser variety of unusual fairness shares to the DVR shareholders. This alternate is being achieved by means of a restructuring scheme being filed earlier than the National Company Law Tribunal (NCLT) beneath the Companies Act, 2013.

One would have anticipated that there can be no tax on such alternate of 1 kind of shares of an organization for one more kind of shares of the identical firm, like within the case of conversion of choice shares into fairness shares, which is exempt. In reality, there’s a provision within the tax legal guidelines that allow a conversion of 1 type of shares into one other type. Indirectly, which means that such conversion is exempt.

However, the mentioned firm has additionally introduced that your complete cancellation worth of the DVRs can be taxed as dividend earnings within the arms of the shareholders, and that it will be accordingly deducting tax at supply on such quantity. This is on account of the truth that the DVR shares wouldn’t be routinely transformed into fairness shares, however can be cancelled by means of discount of capital, and recent unusual fairness shares allotted to the DVR shareholders out of the capital discount proceeds.

In case of discount of capital, to the extent that the corporate possesses collected earnings, the payout is considered dividend beneath tax legal guidelines. So lengthy as the entire collected earnings are greater than the quantity being paid in the direction of capital discount, the quantity is taxable as dividend—regardless of the value at which the shares have been issued, whether or not it was compensation of capital or not, and regardless of the associated fee at which the shareholder had acquired the shares.

This appears extremely unfair to the DVR shareholders, who can be taxed on the quantity of capital discount proceeds, although they can declare a capital loss on account of extinguishment of the DVRs. However, the capital loss can’t be set off in opposition to the dividend however solely in opposition to different capital beneficial properties.

Why is there such an unfair tax remedy to DVR shareholders? It seems that company legal guidelines didn’t depart a lot option to the corporate which needed to discontinue the DVR shares as their goal was not being achieved. It seems that company legal guidelines don’t allow such fairness shares with DVRs to be immediately transformed into unusual fairness shares, by which case the conversion would have been tax impartial.

This maybe is a lacuna in our company legislation. If choice shares and even debentures or bonds might be transformed into fairness shares, why can one class of fairness shares not be transformed into one other class of fairness shares?

In this case, the shareholders are usually not actually disposing of their DVR shares—they’re merely getting equal worth in unusual fairness shares. Why ought to they be taxed, and once more, on your complete discount proceeds as common earnings, not solely on the appreciation as capital beneficial properties?

This is a traditional case of a disconnect between company legal guidelines and tax legal guidelines, leading to a adverse consequence for the shareholding public. Perhaps, a relook is required to see whether or not our company legal guidelines and tax legal guidelines are in sync in remedy of varied forms of company restructuring, in order to facilitate such restructuring, relatively than deter it.

Gautam Nayak is associate at CNK & Associates LLP.

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Updated: 29 Aug 2023, 10:58 PM IST