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Corporations

Daniel Häusermann

Reto Heuberger

Tax clauses in M&A contracts

Workshop on the occasion of the ISIS) seminar on 27 October 2020 entitled "Tax pitfalls in Mergers & Acquisitions transactions".

10/2020
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The corresponding case solutions can be purchased for CHF
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The case solutions and other documents can be obtained free of charge in the shop.

Case

Based on Case 2 of the "Tax Due Diligence" Unit by Gernot Zitter and Anne Marie Anselmi

The due diligence has revealed the following tax risks:

Tax clauses M&A contracts Tax pitfalls Mergers & Acquisitions Transactions M&A Tax law taxlaw Seminar Case studies isis zsis Corporate tax law tax Due Diligence Tax risks Transaction

The buyer will receive a draft Share Purchase Agreement (SPA) from the sellers of Target HoldCo Group. The buyer asks you to incorporate the results of the tax due diligence into the SPA and to review the other provisions of the SPA from a tax perspective.

Questions:

  1. How can this transaction be classified?
  2. How is a SPA structured?
  3. What are the general tax issues and the positions of the seller and the buyer in a SPA?
  4. Present case: How is the buyer to incorporate the results of the tax due diligence into the SPA?
  • 4.1 Risk 1: shareholder loan
  • 4.2 Risk 2: Equity conversion and write-off of investments
  • 4.3: Risk 7: indirect partial liquidation
  1. How are the following further provisions of the draft SPA to be assessed from a tax perspective:
  • 5.1 Definitions
  • 5.2 Representations and Warranties
  • 5.3 Limitations of liability
  • 5.4 Tax refunds
  • 5.5 Transaction taxes - who bears the turnover tax?
  • 5.6 Conduct of Business Covenant
  • 5.7 Post-closing covenants

Case 2 - The story continues

Tax Clauses M&A Contracts Tax Pitfalls Mergers & Acquisitions Transactions M&A Tax Law Seminar Case Studies isis zsis Corporate Tax Law Due Diligence Tax Transactions Conveyance License Payment

You will receive a draft Share Purchase Agreement (SPA) from the sellers of Target HoldCo Group.

The buyer's asking for you,

  1. incorporate the results of the tax due diligence into the SPA.
  2. to review the other provisions of the SPA from a tax perspective.
CHF
120.00

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