Transfer of Property for Stocks - Tax-Free Exchange

December 28, 1993 BIR RULING NO. 531-93 TRANSFER OF PROPERTY FOR STOCKS TAX-FREE EXCHANGE 34 (c) (2) & (6) (c) 370-93 531-93 Fundamental Development Corporation P. Tuazon cor. 20th Avenue Cubao, Quezon City Attention: Mr . Tony Chua President This refers to your letter dated July 5, 1993, requesting in effect for a confirmation of your opinion that no gain or loss is recognized on the transfer of real property by Golden River Realty & Development Corporation (Golden for brevity) to Fundamental Development Corporation (Fundamental 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) and (6)(c) of the Tax Code, as amended. It is represented that Fundamental Development Corporation is a domestic corporation duly registered with the Securities and Exchange Commission with an authorized capital stock of Twenty Million Pesos (P20,000,000.00) divided into Ten Thousand (10,000) shares with a par value of Two Thousand Pesos (P2,000.00) per share; that of the authorized capital stock of the Corporation, Five Million Pesos (P5,000,000.00) has been subscribed; that the following are the incorporators of the corp. No. of Amt. Name Shares Subscribed Amt. Paid Tony Chua 800 P1,600,000.00 P400,000.00 Cu Siok Lu 450 900,000.00 225,000.00 Lim Koc Hua 550 1,100,000.00 275,000.00 Lourdes Ching 550 1,100,00.00 275,000.00 Stuart Chua 150 300,000.00 75,000.00 Total 2,500 P5,000,000.00 P1,250,000.00 ===== =========== =========== that Golden is the owner in fee simple of a parcel of land located at Barrio San Isidro, Taytay, Rizal and covered by Transfer Certificate of Title No. 560097 issued by the Registry of Deeds for the Province of Rizal; that on July 20, 1993, a Deed of Exchange was executed by and between Golden and Fundamental whereby the former transferred to the latter the abovementioned property in exchange for 5,150 shares of stock valued at Two Thousand Pesos (P2,000.00) per share; that as a result of the exchange, Golden gained control of Fundamental by owning 67.32% of the total voting stock of the latter as follows: No. of Amt. Name Shares Subscribed Tony Chua 800 P1,600,000.00 Cu Siok Lu 450 900,000.00 Lim Koc Hua 550 1,100,000.00 Lourdes Ching 550 1,100,000.00 Stuart Chua 150 300,000.00 Golden River Realty & Dev. Corp. 5,150 10,300,000.00 Total 7,650 P5,000,000.00 ===== =========== and that in support of your request, you submitted to this Office, the following documents: 1) Deed of Exchange; 2) Articles of Incorporation of Golden and Fundamental; 3) Transfer Certificate of Title; 4) Tax Declaration; 5) Original Certification on historical cost of acquisition of the property; 6) Certification of fair market value or zonal valuation; 7) Certification of its authorized capitalization and percentage of ownership; 8) Certification by the Secretary of the transferee corporation as to the percentage of stockholdings of transferor before and after assignment of property; and 9) Other pertinent documents. In reply thereto, please be informed that pursuant to Section 34, paragraphs (c) (2) and (6)(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 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 corporation on the transfer by Golden of its property in exchange for shares of stock of the transferee corporation, Fundamental, considering that as a consequence of the exchange, the transferor gained control of the transferee corporation by owning 67.32% of the total voting stocks of the corporation, is hereby confirmed. llcd It should be emphasized, however, that Section 34(c) (2) and (6)(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 property or of the stocks involved in the exchange, the original or historical cost of the property 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 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 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) and (6)(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 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 property received from the transferor; 2. A statement of the original acquisition cost or other basis of the property 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 transferor in the exchange; and c. The fair market value as of the date of the exchange of the capital stock issued to the transferor. cdt 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/property 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 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 certificates of stock to be issued by Fundamental Development 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 in the name of the transferee corporation, Fundamental Development 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. LLjur LIWAYWAY VINZONS-CHATO Commissioner of Internal Revenue