Selskabs- og skatteretlige omstruktureringer: Valg af omstruktureringsmodel – de afgørende faktorer

Abstract

This thesis concerns the restructuring process of danish companies as defined in the Danish Companies Act with regards to the following restructuring models, mergers, demergers, transfer of assets and finally share exchanges. The purpose of the present thesis is first and foremost to review the danish company law and the tax law with regards to the beforementioned restructuring models and secondhandedly to analyze how a given set of circumstances, in essence both financial as non-financial, such as the intentions behind a restructuring and financial metrics of the intended restructured assets and liabilities, influences the involved parties’ choice of restructuring model. The research consists of two main parts in which the first part is a systematic in-depth review and examination of the danish legislation, specifically the Danish Companies Act and to a greater extent the danish Merger Tax Act. The review seeks to describe the legal framework of the four restructuring models and by extension how this legal framework both brings possibilities and limitations for companies and their shareholders that intend a merger, demerger, transfer of assets or a share exchange. The second part of this master thesis analyzes how present circumstances in a restructuring process affect the choice of restructuring model by comparing different scenarios for all four of the beforementioned restructuring models. The purpose of these comparisons is to demonstrate how different circumstances consequentially impacts an assessment of whether a taxable or non-taxable restructuring should be preferred and furthermore how the circumstances impact the choice of whether a non-taxable restructuring should be undertaken with or without prior permission from the Danish tax authorities. The main purpose of the review, the analysis and this thesis as a whole is to illuminate which factors identify as decisive with regards to choosing a restructuring model, with regard to whether a restructuring should be a taxable or non-taxable transaction, and whether a restructuring should be executed with or without prior permission from the tax authorities. This thesis concludes that the decisive factors in a restructuring identify as the amount on the deferred tax for the involved companies and shareholders, the amount of tax loss carried forward, the intention behind the restructuring and lastly whether there are potential doubts regarding the fulfillment of the legal requirements.