Transfer of Property for Stocks - Tax-Free Exchange

August 12, 1993 BIR RULING NO. 354-93 TRANSFER OF PROPERTY FOR STOCKS TAX-FREE EXCHANGE 94 (a) (3) 21 (e) 301-92 354-93 Carlos J. Valdes & Co. CJVC Building Aguirre St., Legaspi Village Makati, Metro Manila Attention: Mr . Romeo C . Alba Partner This refers to your letter dated June 28, 1993 requesting in effect, for confirmation of your opinion that no gain or loss is recognized on the transfer of real property by OAC Realty & Development Corporation (OAC for brevity) to Oriental Assurance Corporation (Oriental for brevity) in exchange for its shares of stock in accordance with Revenue Memorandum Order No. 26-92, and falling under Section 34(c) (2) (c) of the Tax Code, as amended. cdtech It is represented that Oriental Assurance Corporation is a domestic corporation duly registered with the Securities and Exchange Commission with an authorized capital stock of Fifteen Million Pesos (P15,000,000.00), Philippine currency, divided into One Hundred Fifty Thousand (150,000) shares with a par value of One Hundred Pesos (P100.00) per share; that of the authorized capital stock of the Corporation, Ten Million Pesos (P10,000,000.00) have been subscribed; that the following are the incorporators of the corporation with the number of shares subscribed and paid-up, viz: No. of Shares Name Subscribed/Subscription Paid-Up Nazario H. Cotoco 34,750 P3,475,000.00 Gonzalo N. Cotoco II 3,725 372,500.00 Isauro N. Cotoco 3,725 372,500.00 Antonio N. Cotoco 3,725 372,500.00 Felino Cotoco 15,718 1,571,800.00 Belen Cotoco 666 66,600.00 Sabrina Cotoco 666 66,600.00 Luz N. Cotoco 3,725 372,500.00 OAC Realty & Dev. Corp. 33,300 3,330,000.00 Total 100,000 P10,000,000.00 ====== =========== that OAC is the absolute and exclusive owner of a Condominium Unit (which forms part of OAC Building, Ground Floor with an area of 290 square meters) located at San Miguel Avenue, Pasig, Metro Manila, and covered by Condominium Certificate of Title No. PT-7262 issued by the Registry of Deeds Pasig; that the approved value of the above property appraised by Cuervo Appraisers, Inc. shows a market value of P9,280,000.00; that the company intends to transfer the above real estate property to oriental Assurance Corporation for P5,000,000.00 in exchange for 50,000 common shares of stock of oriental; that as a result of the exchange, OAC will gain control of Oriental by owning more than 51% of the total voting power of all classes of stocks entitled to vote, as follows: Name No. of Shares Percent Nazario H. Cotoco 34,750 23.17 Gonzalo N. Cotoco II 3,725 2.48 Isauro N. Cotoco 3,725 2.48 Antonio N. Cotoco 3,725 2.48 Felino Cotoco 15,718 10.48 Belen Cotoco 666 .44 Sabrina Cotoco 666 .44 Luz N. Cotoco 3,725 2.48 OAC Realty & Dev. Corp. 83,300 55.33 Total 150,000 100.00 ====== ====== and that in support of your request, you submitted to this Office, the following documents: 1) Deed of Assignment of Right; 2) Amended Articles of Incorporation of Oriental Assurance Corporation; 3) Condominium Certificate of Title; 4) Original or historical cost of acquisition of the property; 5) Certification of Fair Market Value; 6) Certification of its authorized capitalization and of percentage of ownership of stock of transferor after transfer of property; and 7) Other pertinent documents. In reply thereto, I have the honor to inform you that pursuant to Section 34, paragraph (c) (2) (c) of the Tax Code, as amended by Republic Act. No. 4522 and P.D. Nos. 1705 and 1773, no gain or loss shall be recognized if property is transferred to a corporation by a person, in exchange for stocks in 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 stocks received, i.e., total subscribed, whether for property or for services by the transferor or transferors. In determining the 51% stock ownership, only those persons who transferred property for stocks in the same transaction may be counted up to a maximum of five. Accordingly, your opinion that no gain or loss shall be recognized both to the transferor and the transferee corporation on the transfer by the OAC Realty and Development Corporation of its property in exchange for shares of stock of the transferee corporation, Oriental Assurance Corporation, considering that as a consequence of the exchange, the transferor gained control of the transferee corporation, is hereby confirmed. It should be emphasized, however, that Section 34(c) (2) (c) of the Tax Code merely defers recognition of the 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 of 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 gains derived from such sale or exchange, taking into consideration that the cost basis of the shares shall be the same as the original acquisition cost or adjusted cost basis to the transferors of the property exchanged therefor; and that the cost basis to the transferee of the property exchanged for stocks shall be the same as it would be in the hands of the transferors [Section 34(c) (5) (a) and (b) of the 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 34(c) (2) (c) of the Tax Code, as amended, they should comply with the requirements hereunder mentioned: a. The transferors must file with its income tax return for the taxable year in which the exchange transaction was consummated, a complete statement of all facts pertinent to the exchange, including: 1. A description of the property transferred or of its interest in such property, with a statement of the original acquisition cost/adjusted cost basis or other basis thereof at the time of the transfer; 2. The kind of stocks 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 properties received from the transferors; 2. A statement of the original acquisition cost or other basis of the property in the hands of the transferors and the adjusted cost basis thereof at the time of the transfer; and 3. Information with respect to the capital stock of the corporation including: a. The total issued and outstanding capital stock immediately prior to and immediately after the exchange with a complete description of each class of stock; b. The classes of stocks and number of shares issued to the transferors in the exchange; and c. The fair market value as of the date of the 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. The parties shall also cause to be annotated on the Transfer Certificate of Title and at the back of the Certificates of Stock, the date the deed of exchange was executed, the original or historical cost of acquisition of the properties or shares of stock involved, and the fact that no gain or loss was recognized as a result of such exchange. Moreover, pursuant to Section 196 of the Tax Code, as amended, a conveyance of 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 Deed of Assignment executed to effect the aforesaid transfer (BIR Ruling No. 245-00-000-00-109-82 dated April 06, 1982). The value shall be the fair market value which shall not be less than the par value of the stocks. Finally, the certificate of stocks to be issued by Oriental Assurance Corporation are, in all probability original issues, which are subject to the documentary stamp tax imposed by Section 175 of the Tax Code, as amended. After payment of the corresponding documentary stamp tax, the real property may be registered by the Register of Deeds concerned in the name of the transferee corporation, Oriental Assurance Corporation. This ruling is being issued on the basis of the foregoing facts as represented. However, if upon investigation, it will be disclosed that the facts are different, and/or any of the requirements imposed in this letter are not complied with, then this ruling shall be considered null and void. cdtech LIWAYWAY VINZONS-CHATO Commissioner of Internal Revenue