Tax issues in the SPA in the event of an acquisition of a company out of a fiscal unity
In the Dutch M&A practice it often happens that one or more Dutch companies (Target) are acquired out of an existing fiscal unity (tax consolidated group) for Dutch corporation tax purposes (fiscal unity) pursuant to Section 15 of the Corporation Tax Act 1969 (Wet op de vennootschapsbelasting 1969 (CITA). The tax consequences of this are often a reason for the seller and buyer of the Target to include specific provisions in the share purchase agreement (SPA).
Some of these tax aspects are discussed in this edition of Quoted. Although the statutory fiscal unity rules and regulations are extensive and impact on many other tax provisions, this contribution will focus on the points that are most common in practice. In order to gain a better understanding, some basic concepts of the SPA are discussed first in chapter 2. Next, the most important points for attention for the fiscal unity are discussed in chapter 3. In chapter 4, this contribution ends with a number of concluding comments.