Omstrukturering ved indtrædelse og udtrædelse af koncernforhold: Med fokus på fordelene ved skattepligtige omstruktureringer

Abstract

This paper investigates the possibility of simplifying the tax-strategic process of corporate restructuring. Through exploration of the company laws and tax laws I propose a framework of generalities, which companies more easily can use as a means of choosing their strategy. The discoveries of this paper is illuminated in a case, wherein the process of a more tax-optimal way of corporate merging is exemplified. Upon beginning new business adventures owners may neglect considering which corporate structure that would fit their future taxing needs the most. This might occur due to the shareholders being unable to gain a complete overview of the possibilities in the company laws and tax laws, and therefore might be incapable of applying tax strategy to their plan of restructuring. Besides, companies might go through financial and circumstantial changes over the course of their lifespan. These changes can lead to new challenges and new opportunities like new investments, optimizing certain aspects, changing their risk profile, expansion, generation change, joining groups etc. These new challenges and opportunities may conclude in a situation wherein the owners seek to change the structure of the company. In a company’s upstarting phase, it may usually be a personally owned company because of the administrative lesser burdens this causes. In a business’ growing phase, the owner might find themselves in a situation in which they either want a partner to join the business, leading to a change of the company structure, or growth may lead to one company being unable to live up to user needs, which might conclude in creating a group of companies working together. On the other hand, the owner might find themselves in a situation in which they would like the activities of two companies to be merged, enabling them to work more closely, or they might want to move some activity between the companies. This paper analyses four models of corporate restructuring. The four types are merges, demergers, addition of assets, and share exchanges. All four of these models for restructuring are doable by either a taxable or a tax-free method. Upon choosing the taxable method, a taxation will be forced upon the disposed assets or shares. The tax-free version is instead based on succession, in which a new owner steps in as if they had been the asset owner since the beginning. This happens with the original values of assets and acquisition time, and will instead be taxed, when they at some point in the future abolish their assets. Depending on the current circumstances and liquidity of the company in question, the optimal strategy of restructuring changes, leading to it always being relevant to consider which models exist, what the tax rules and consequences are for the different models, and whether you should use the taxable or the tax-free version. Navigating through this issue is indeed complex, and especially for smaller business owners, calling for a simpler framework for tax strategy selection when corporate restructuring. Throughout this paper we will analyze the tax laws and theoretical concepts of the restructuring models before using a case to show a situation in which a specific type of reconstruction is to be preferred. Conclusively it is determined that companies in several of the investigated instances taxwise can benefit from choosing the taxable method of restructuring if their level of liquidity allows it.