No Gain or Loss Shall be Recognized if Property is Transferred to a Corporation by a Person in Exchange for Stock in Such a Corporation

September 8, 1987 BIR RULING NO. 264-87 35 (c) 2 (c) 196-87 264-87 S i r : This refers to your letter dated July 21, 1987 requesting a ruling on the tax consequence of the transfer made by you and your wife of real properties in favor of Lejano Construction Inc. It is represented that Lejano Construction, Inc. is a domestic corporation and duly registered with the Securities and Exchange Commission; that it has an authorized capital stock of P6,000,000.00 divided into 60,000 shares with a par value of P100.00 per share; that the following are the stockholders of the corporation with the number of shares subscribed and paid-up, viz: No. of Amount of Shares Capital Stock Amount Paid NAMES Subscribed Subscribed on Subscription 1. Rodolfo Lejano 1,850 P185,000.00 P46,250.00 2. Alicia Lejano 1,850 185,000.00 46,250.00 3. Rodolfo Lejano Jr. 100 10,000.00 2,500.00 4. Roberto Lejano 100 10,000.00 2,500.00 5. Margarita Lejano 100 10,000.00 2,500.00 4,000 400,000.00 100,000.00 ==== ========= ========= that per Secretary's certificate dated August 6, 1987 the stockholdings of the aforementioned stockholders as of January 20, 1981 are as follows: No. of Amount Paid-up Paid on NAMES Shares Subscription Percentage 1. Rodolfo Lejano 29,623 P2,962,300.00 62.45% 2. Alicia Lejano 9,871 987,100.00 20.80% 3. Rodolfo Lejano, Jr. 5,812 581,200.00 12.25% 4. Edmundo Lejano 1,067 106,700.00 2.25% 5. Raul Lejano 1,067 106,700.00 2.25% Total 47,440 P4,744,000.00 100% ====== =========== ====== that on July 21, 1987, a Deed of Conveyance was executed by the spouses Rodolfo M. Lejano and Alicia P. Lejano, and the corporation whereby the spouses conveyed their real property located in Morong, Rizal and covered by CTCT No. N-15097 to the corporation in exchange for 12,500 shares of stocks with a par value of "1,250,000.00; that after the said transfer, the stockholdings of the stockholders are as follows: adc No. of Amount Paid-up Paid on NAMES Shares Subscription Percentage 1. Rodolfo Lejano 35,873 P3,587,300.00 59.85% 2. Alicia Lejano 16,121 1,612,100.00 26.90% 3. Rodolfo Lejano, Jr. 5,812 581,200.00 9.69% 4. Edmundo Lejano 1,067 106,700.00 1.78% 5. Raul Lejano 1,067 106,700.00 1.78% Total 59,940 P5,994,000.00 100% ====== =========== ====== and that after the exchange and as a result of exchange, the transferors gained further control of the corporation by owning more than 51% of the total voting power of all classes of stocks entitled to vote. In reply, I have the honor to inform you that pursuant to Section 35, par. (c)(2)(c) of the Tax Code, as amended by Republic Act No. 4522 and Presidential Decree Nos. 1705 and 1773, no gain or loss shall be recognized if property is transferred to a corporation by a person in exchange for stock in such a corporation of which as a result of such exchange, said person, alone or together with others not exceeding four persons, gains control of said corporation. The term "control" shall mean ownership of stocks in a corporation possessing at least 51% of the total voting power of all classes of stocks entitled to vote. Control is determined by the amount of stock received i.e., subscribed and paid-up, whether for property or services by the transferor or transferors. In determining the 51% stock ownership, only those persons who transferred property for stock in the same transaction may be counted up to a maximum of five. Accordingly, no gain or loss shall be recognized both to the transferors and transferee corporation on the transfer by you and your wife of your real property as payment for the issuance of shares of stocks of Lejano Construction, Inc., considering that after the exchange of properties and as a result of said exchange, you and your wife will gain further control of said corporation. It should be emphasized, however, that Section 35(c)(2)(c) of the Tax Code merely defers recognition of gain or loss from such transaction, for in determining the gain or loss from a subsequent transaction of the properties or of the stocks involved in the exchange, the original or historical cost of the properties or the stocks is considered. Thus, if the transferors later sell or exchange the shares of stock acquired by them in the exchange, they shall be subject to income tax on the gains derived from such sale or exchange, taking into consideration that the cost basis of the shares of stock shall be the same as the original acquisition cost or adjusted cost basis to the transferors of the properties exchanged therefor; and that the cost basis to the transferee of the properties exchanged for stocks shall be the same as it would be in the hands of the transferors. [Section 35(c)(5)(a) and (b), Tax Code, as amended by Presidential Decree No. 1773] In this connection, you are further advised that in order that the parties to the exchange can avail of the non-recognition of gains provided for in Section 35(c)(2)(c) of the Tax Code, as amended, they should comply with the requirements hereunder mentioned: (a) The transferors must file with their income tax return for the taxable year in which the exchange was consummated a complete statement of all facts pertinent to the exchange including: 1. A description of the property transferred, or of their interest in such property, together with a statement of the original acquisition cost or other basis thereof, and the adjusted cost basis at the time of the transfer; 2. The kind of stock received and preferences if any; 3. The number of shares of each class received; and 4. The fair market value per share of each class at the date of the exchange. (b) On the other hand, the transferee corporation must file with its income tax return for the taxable year in which the exchange was consummated the following: 1. A complete description of the property received from the transferors; 2. A statement of the original acquisition cost or other basis of property in the hands of the transferors and the adjusted cost basis thereof at the time of the transfer; and: a. The total issued and outstanding capital stock immediately prior to and immediately after the exchange, with a complete description of each class of stocks b. The classes of stock and number of shares issued to the transferors in the exchange; and c. The fair market value as of the date of exchange of the capital stock issued to the transferors. In addition to the foregoing requirements, permanent records in substantial form must be kept by the taxpayers participating in the exchange, showing the information listed above in order to facilitate the determination of gain or loss from a subsequent disposition of stocks/properties received in the exchange. Moreover, pursuant to Section 245 of the Tax Code, as amended, a conveyance or deed whereby land is assigned or transferred to the purchaser, is subject to documentary stamp tax based on the consideration or value received or contracted to be paid for such realty. A stock in a corporation is a valuable consideration for transfer of real property (Section 177 Documentary Stamp Tax Regulations). Accordingly, if a parcel of land is exchanged with stocks in a corporation as in this case, the latter is the consideration, the value of which shall be the basis of the documentary stamp tax on the aforesaid deed. (BIR Ruling No. 245-00-000-00-109-82 dated April 6, 1982) After payment of the corresponding documentary stamp tax, the aforesaid real property may now be registered by the Registry of Deeds concerned in the name of Lejano Construction, Inc.. Very truly yours, (SGD.) EUFRACIO D. SANTOS Deputy Commissioner Office-In-Charge