MERGERS AND SPITS
LexInter | July 9, 2008 | 0 Comments

MERGERS AND SPITS

Article 210-0 A

(Law n ° 2001-1275 of December 28, 2001 art. 85 I f finances for 2002 Official Journal of December 29, 2001)
(Law n ° 2004-1484 of December 30, 2004 art. 26 I e finances for 2005 Official Journal of December 31, 2004)
(Law nº 2005-1720 of December 30, 2005 art. 38 VI amending finances for 2005 Official Journal of December 31, 2005)

I. – The provisions relating to mergers and divisions, provided for in 7a of article 38, in V of article 93 quater, in articles 112, 115, 120, 121, 151g, 151g A, 151h , 208 C, 208 C bis, 210 A to 210 C, to the second and fourth paragraphs of II of article 220 quinquies and to articles 223 A to 223 U, are applicable:
1 ° With regard to mergers, to operations by which :
at. One or more absorbed companies transmit, following and at the time of their dissolution without liquidation, all of their assets to another pre-existing absorbing company, subject to the allocation to their partners of shares in the absorbing company and, possibly, of shares. a cash payment not exceeding 10% of the nominal value of these securities;
b. Two or more absorbed companies transmit, as a result and at the time of their dissolution without liquidation, all of their assets to an absorbing company that they constitute, through the allocation to their partners of shares in the absorbing company and, possibly, of
2 ° With regard to splits, operations by which the split company transmits, following and at the time of its dissolution without liquidation, all of its assets to two or more pre-existing or new companies, subject to the allocation to the partners of the company split, in proportion to their rights in the capital, of securities of the companies benefiting from the contributions and, possibly, of a balance not exceeding 10% of the nominal value of these securities;
3 ° The operations described in 1 ° and 2 ° for which the securities of the absorbing company or the beneficiary of the contribution are not exchanged for the securities of the absorbed or split company when these securities are held either by the absorbing company or beneficiary of the contribution, either by the absorbed or split company.

II. – Are excluded from the provisions provided for in 7 bis of article 38, in V of article 93 quater, in articles 115, 151 octies, 151 octies A, 151 nonies, 210 A to 210 C and the second to fourth paragraphs of II of Article 220d, merger, demerger and partial asset contribution operations not falling within the scope of Council Directive 90/434 / EEC of 23 July 1990, when a company, contributor or beneficiary of a contribution, has its head office in a State or territory which has not concluded a tax treaty with France containing an administrative assistance clause with a view to combating tax fraud and tax evasion.

NOTE: Law nº 2005-1720 of December 30, 2005, art. 38 VIII: These provisions are applicable to free contribution, exchange or transmission operations carried out as of January 1, 2006.

Article 210a

(Law nº 80-1094 of December 30, 1980 art. 57 finances for 1981 Official Journal of December 31, 1980 date of entry into force JANUARY 1, 1981)
(Law nº 81-1160 of December 30, 1981 art. 40 I finances for 1982 Official Journal of December 31, 1981 date of entry into force JANUARY 1, 1982)
(Law n ° 82-1126 of December 29, 1982 art. 23 II finances for 1983 Official Journal of December 30, 1982 date of entry into force JANUARY 1, 1983)
(Law nº 86-1317 of December 30, 1986 art. 38 V finances for 1987 Official Journal of December 31, 1986 in force on January 1, 1987)
(Law nº 90-1169 of December 29, 1990 art. 17 II, VI amending finance for 1990 Official Journal of December 30, 1990)
(Law nº 90-1169 of December 29, 1990 art. 17 finances for 1991 Official Journal of December 30, 1990)
(Law n ° 89-935 of December 29, 1989 art. 19 Official Journal of December 30, 1989)
(Law n ° 91-1323 of December 30, 1991 art. 25 VI IX amending finances for 1991 Official Journal of December 31, 1991) 
(Law n ° 91-1322 of December 30, 1991 art. 11 finances for 1992 Official Journal of December 31, 1991)
(Law nº 94-1163 of December 29, 1994 art. 41 amending finance for 1994 Official Journal of December 30, 1994)
(Law n ° 95-95 of February 1, 1995 art. 28 IV V Official Journal of February 2, 1995)
(Law nº 96-1182 of December 30, 1996 art. 21 I, III amending finances for 1996 Official Journal of December 31, 1996)
(Law nº 97-1269 of December 30, 1997 art. 2, art. 6 II finances for 1998 Official Journal of December 31, 1997)
(Ordinance nº 2000-1223 of December 14, 2000 art. 4 I 47º Official Journal of December 16, 2000 in force on January 1, 2001)
(Law n ° 2004-1485 of December 30, 2004 art. 42 I b amending finances for 2004 Official Journal of December 31, 2004)

1. Net capital gains and profits on all assets contributed as a result of a merger are not subject to corporation tax.
The same applies to any capital gain generated by the acquiring company upon cancellation of the shares or shares of its own capital that it receives or which correspond to its rights in the absorbed company.
The entry in the assets of the absorbing company of the technical merger loss resulting from the cancellation of the securities of the absorbed company may not give rise to any subsequent deduction.

2. Corporation tax is only applicable to provisions appearing in the balance sheet of the absorbed company if they become irrelevant.

3. The application of these provisions is subject to the condition that the acquiring company undertakes, in the deed of merger, to comply with the following requirements:
a. It must include as its liabilities:
on the one hand, provisions the taxation of which is deferred;
on the other hand, the special reserve where the absorbed company has carried long-term capital gains previously subject to the reduced rate of 10%, 15%, 18%, 19% or 25% as well as the reserve where provisions for price fluctuations have been entered in application of the sixth paragraph of 5 ° of 1 of article 39;
b. It must take the place of the absorbed company for the reinstatement of the results the taking into account of which had been deferred for the taxation of the latter;
vs. It must calculate the capital gains realized subsequently on the occasion of the sale of non-depreciable fixed assets which are contributed to it according to the value they had, from a tax point of view, in the accounts of the absorbed company;
d. It must reintegrate into its taxable profits the capital gains generated during the contribution of depreciable property. The reintegration of capital gains is carried out in equal parts over a period of fifteen years for constructions and rights relating to constructions as well as for plantations and fixtures and fittings of depreciable land over a period at least equal to this duration; in other cases, reinstatement is made in equal parts over a period of five years. When the total net capital gains on constructions, plantations and land fittings and improvements exceed 90%. 100 of the overall net capital gain on depreciable items, the reintegration of capital gains relating to constructions, plantations and land fixtures and fittings is carried out in equal parts over a period equal to the weighted average depreciation period of these assets. However, the sale of a depreciable asset entails the immediate taxation of the fraction of the capital gain relating to this asset which has not yet been reinstated. In return, subsequent depreciation and capital gains relating to depreciable items are calculated on the basis of the value attributed to them at the time of the contribution; plantations and land fittings and development is carried out in equal parts over a period equal to the weighted average depreciation period for these assets. However, the sale of a depreciable asset entails the immediate taxation of the fraction of the capital gain relating to this asset which has not yet been reinstated. In return, subsequent depreciation and capital gains relating to depreciable items are calculated on the basis of the value attributed to them at the time of the contribution; plantations and land fittings and development is carried out in equal parts over a period equal to the weighted average depreciation period for these assets. However, the sale of a depreciable asset entails the immediate taxation of the fraction of the capital gain relating to this asset which has not yet been reinstated. In return, subsequent depreciation and capital gains relating to depreciable items are calculated on the basis of the value attributed to them at the time of the contribution; has not yet been reinstated. In return, subsequent depreciation and capital gains relating to depreciable items are calculated on the basis of the value attributed to them at the time of the contribution; has not yet been reinstated. In return, subsequent depreciation and capital gains relating to depreciable items are calculated on the basis of the value attributed to them at the time of the contribution;
e) It must enter in its balance sheet items other than fixed assets for the value they had, from a tax point of view, in the accounts of the absorbed company. Failing this, it must include in its results for the fiscal year during which the transaction takes place the profit corresponding to the difference between the new value of these elements and the value they had, from a tax point of view, in the entries. of the absorbed company.

4. (Provisions no longer applicable for fiscal years beginning on or after January 1, 1977 – Law no. 97-1026 of November 10, 1977, article 2).
5. The rights relating to a leasing contract concluded under the conditions provided for in 1 and 2 of Article L. 313-7 of the Monetary and Financial Code are assimilated to fixed assets, depreciable or non-depreciable. under the conditions provided for in article 39 duodecies A.
For the application of c of 3, in the event of a subsequent transfer of the rights mentioned in the previous paragraph which are assimilated to non-depreciable elements or of transfer of the land, the most -value is calculated according to the value that these rights had, from a tax point of view, in the accounts of the absorbed company.
These provisions apply to rights relating to leasing contracts relating to depreciable intangible elements of a business or an artisanal fund.
6. For the application of this article, the securities of the portfolio whose sale result is excluded from the regime of long-term capital gains or losses in accordance with article 219 are assimilated to fixed assets.
For the application of c of 3, in the event of a subsequent sale of the securities mentioned in the first paragraph, the capital gain is calculated according to the value that these securities had, from a tax point of view, in the accounts of the absorbed company. .

Note: Law 2004-1485 2004-12-30 art. 42 II: These provisions are applicable to merger and similar operations carried out from January 1, 2005.

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