Transfer of Properties for Stocks - Tax-Free Exchange

September 21, 1993 BIR RULING NO. 380-93 TRANSFER OF PROPERTIES FOR STOCKS TAX-FREE EXCHANGE 34 (c) (2) (C) 36-93 80-93 Benpres Corporation 5th Floor, Chronicle Building Meralco Avenue Pasig, Metro Manila This refers to your letter dated October 21, 1992 requesting in effect, a confirmation of your opinion that the transfer of your properties in favor of Sierra Tours, Inc. in exchange for the latter's shares of stock in accordance with Revenue Memorandum Order No. 26-92, falls under Section 34 (c) (2) (c) of the Tax Code, as amended. It is represented that Sierra Tours, Inc. is a domestic corporation duly registered with the Securities and Exchange Commission (SEC) with an authorized capital stock of Six Million Pesos (P6,000,000.00) divided into Sixty Thousand (60,000) shares with a par value of One Hundred (P100.00) per share, of which Two Hundred Thousand Pesos (P200,000.00) have been subscribed and paid as follows: No. of Shares Amt. Subscribed Name Subscribed & Paid Pacita M. Lopez 200 P20,000.00 Elsa C. Fontanilla 400 40,000.00 Rosario A. Padua 400 40,000.00 Priscilla R. Aragon 400 40,000.00 Presentacion L. Panganiban 600 60,000.00 Total 2,000 P200,000.00 ==== ========= that Benpres Corporation, a domestic corporation, is the registered and absolute owner of several parcels of land located at Mariquit Village, Iloilo City, covered by Transfer Certificates of Title Nos. 31509, 31519, 31537, 31545, 31583, 31584 and 31587 all issued by the Register of Deeds for the City of Iloilo; that a Deed of Assignment was executed by and between Benpres Corporation and Sierra Tours, Inc. whereby the former transferred to the latter the above-mentioned properties inclusive of all the improvements thereon in exchange for its 34,000 shares with an aggregate amount of P1,069,820.00 as payment of at least 25% of its subscription in the amount of One Million Pesos; that as a result of the above transaction, Benpres Corporation gained control of the corporation by owning at least 51% of the total voting stock of the said corporation; and that in support of your aforesaid request, you submitted to this Office, the following documents: (1) Deed of Assignment; (2) Articles of Incorporation of Benpres Corporation and Sierra Tours, Inc.; (3) Transfer Certificate of Title; (4) Tax Declaration; (5) Certification of the zonal valuation of the property; (6) Certification of the Corporate Secretary as to the authorized capital stock and percentage of ownership; and (7) Certification as to the custody of the corporate records. 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 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 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 corporations on the transfer by Benpres Corporation of its properties inclusive of the improvements thereon in exchange for shares of stock of the transferee corporation, Sierra Tours, Inc. 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 or stocks is considered. Thus, if the transferor later sells or exchanges the shares of stock acquired by it in the exchange, it 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 transferor 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 transferor. [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 transferor 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 properties transferred, or of its interest in such properties, together 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 all properties received from the transferor; 2. A statement of the original acquisition cost or other basis of the properties in the hands of the transferor 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 transferor. 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 Titles and at the back of the Certificate of Stocks, 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 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 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 Sierra Tours, Inc. 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 properties may be registered by the Register of Deeds concerned in the name of the transferee corporation, Sierra Tours, Inc. 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. LIWAYWAY VINZONS-CHATO Commissioner of Internal Revenue