This type of transaction has not gone unnoticed and the Minister of Finance, in his budget speech for 2019, indicated that from February 20, 2019, provisions will be put in place to counter the abuses perceived in the context of these types of transactions (called « dividend stringing » operations). Based on the Taxation Laws Amendment Bill 2019 [B18-2019], these provisions are broad and their application would result in a very simplified « supposed divestiture » if the effective interest of shareholders in a target company were reduced due to the issuance of shares by the target company. For example, if a corporate shareholder owns 100% of the shares in an unlisted target company and the target company issues shares to a new shareholder, so that the shareholder`s interest in the target company is diluted from 100% to 70%, the shareholder of the company has disposed of 30% of the shares of the target company. Does this mean that the provisions apply and that a profit must be determined on the market value of the shares considered to be sold? The answer to this question is no! Where a presumed transfer is triggered within the meaning of those provisions, it remains to be ascertained whether the shareholder of the undertaking has held a qualifying holding in the offeree company during the 18 months preceding the alleged transfer. In our example, this requirement would be met. Second, it is necessary to determine whether, during that period, an exceptional dividend was paid to the shareholder of the undertaking or whether it was paid. If so, the alleged disposal would have the effect of including part of the dividend as proceeds in the determination of the capital gain resulting from the alleged sale. If not, the presumed transfer would not have negative tax consequences. The provisions are therefore clearly intended to address the dividend withdrawal operations referred to above. The provisions are also broad and could include, for example, shares issued by the target company under a share incentive scheme, if this had the effect of reducing the real interest of a company shareholder, which would lead to a supposed divestiture. However, as has already been said, this is alarming only if the other requirements, namely: a qualifying participation and an exceptional dividend.
These share sale contracts apply to the purchase or sale of the entire ownership of a limited liability company. They are suitable, whether you are the buyer or the seller, because they can be easily adapted to favor both parties. In particular, we offer a menu of 140 guarantees that should protect and reassure every buyer. The Companies Act 71 of 2008 (« the Act ») provides that a company may acquire its own shares to the extent that it is solvent and liquid, as further described in section 4 of the Act. is necessary for the board of directors of a company to make a decision. In addition, companies have become accustomed to taking into account the provisions of Article 48 of the Act when buying back shares. Pursuant to article 48 of the Act, however, many companies come into conflict with demand. With the introduction of Article 43A(4) of the Eighth List into the ITA, caution should also be exercised when exiting share subscription transactions, since such transactions now also fall within the scope of the anti-stripping dividend rules. In this article, we see some of the important aspects that need to be taken into consideration when establishing a share repurchase agreement.. .