The Essence of Tax Effects of Reorganisation
The Tax Code sets separate rules for the reorganisation of an enterprise, and the foundation of this page consists of Articles 56 and 152. Article 56 governs the performance of tax obligations: the tax obligation of a reorganised enterprise is performed, and its tax arrears paid, by its legal successor in the manner established by the Code. On a merger of several enterprises, the successor to each obligation is the enterprise created by the merger; on accession, the enterprise to which the acceding enterprise acceded; on division, the enterprises created by the division; on a change of legal form, the enterprise created by that reorganisation.
The rule of solidarity matters: where several successors exist, the share of each is determined by the dividing balance or another transfer act, and the newly created enterprises bear solidarity liability for performing the tax obligation of the reorganised enterprise or its corresponding part. On separation, the division rules extend to the separated enterprise as well. An amount overpaid before reorganisation is credited by the tax authority proportionally to the successor's future obligations or returned according to the shares.
The Fiscal Neutrality of Reorganisation
Article 152 establishes a neutral regime for the transfer of value: the value of property and shares held by a party to the reorganisation equals their value before it; the transfer of property or shares between the parties is not treated as a supply; the exchange of shares between parties is likewise not a supply, and the value of exchanged shares equals the original. A distribution of shares in one party that generates a similar right in another party is not a dividend.
Recognised Forms of Reorganisation and Party Status
Unless the tax authority proves that the purpose of the operation is avoidance of taxes, reorganisation covers the merger of 2 or more resident legal persons; the acquisition or accession of 50 percent or more of voting shares and of a partner's share valued at 50 percent or more, against shares with similar rights; the acquisition of 50 percent or more of a resident's assets against voting shares; and division into 2 or more residents. A party is any person directly involved, the person directly owning it, and the person it owns; ownership means holding 50 percent or more of voting shares and of the value of all remaining shares.
Exceptions exist as well: the article's requirements do not extend to assets depreciated by the group method, except where all assets of a group grouped under one rate are transferred simultaneously — in that case the group's value balance at the moment of transfer counts as the value for the recipient. The provisions do not apply where any party to the operation is taxed on profit under objects of taxation provided by another norm of the Code.
The Scope of Review When Preparing the Transaction
Pre-transaction tax review combines several directions. The first is the succession of obligations: what arrears exist on the enterprise being reorganised and who succeeds to them, in which share — this is fixed by the dividing balance or transfer act. The second is the conditions of neutrality: whether the transfer concerns group-depreciated assets and whether any party falls under a different taxation regime. The third is documentary completeness: decisions, balances and acts must correspond to one another, for otherwise the tax authority will place neutrality in doubt.
The dividing balance and the transfer act are not formal annexes in this framework: they determine which asset, obligation and share passes to each successor, and accordingly who answers for the tax arrears and in what volume. The practical rule of review follows: the figures of the balance must correspond to the accounting data, the transfer documentation and the economic logic of the deal itself. In practice the typical defects are well known: an unformulated dividing balance, a transfer of group assets outside the permitted exception, and participation of a party taxed under another object while the neutral regime was assumed. Each of these defects is visible in advance from the documents, and their timely discovery is precisely what distinguishes a checked deal from an improvised one.
Frequently Asked Questions
Who performs the tax obligation of a reorganised enterprise?
Its legal successor: on merger — the new enterprise; on accession — the recipient; on division — the created enterprises, solidarily.
Is transferred property treated as a supply?
No — the transfer of property and shares between the parties, and the exchange of shares within the reorganisation, are not treated as supply.
When does neutrality come into question?
Where the tax authority proves that the purpose of the operation is the avoidance of taxes.
When is a share distribution a dividend?
A distribution generating a similar right between parties to the reorganisation is not a dividend; its value is attributed to the distributed share by a coefficient.
How We Help on Legal.ge
On Legal.ge we conduct tax due diligence of transactions in a reorganisation context: we analyse the succession scheme, check the conditions of neutrality and assess the risks of solidarity liability. Contact us — we will assess your transaction and prepare a conclusion on defects and risks.