Contributed by Muhunthan Kanagaratnam, Partner, Julian Lian, Consultant and Tina Chen, Lawyer, Gilbert + Tobin
Since the introduction of the demerger rules in Div 125 of ITAA 1997 in 2002, Gilbert + Tobin has advised on numerous demergers, including some landmark transactions, such as the first three-way demerger and scrip-for-scrip acquisition involving Foodland, Metcash and Woolworths. Over that time, we have seen a narrowing by the Commissioner (ATO) of the scope of the demerger provisions.
Most recently, in June 2018, the ATO advised our client, AMA Group Limited (AMA Group), that demerger relief was not available in respect of the proposed transaction. The AMA Group withdrew its private ruling application, and the ATO will therefore not issue a ruling in respect of the transaction. Without a ruling, we must surmise the reasons for the ATO’s views.
Demergers typically occur in one of two scenarios, in our experience:
1. A conglomerate separates itself into two distinct businesses (an example is the current proposal by the Wesfarmers group to demerge Coles), and
2. The same separation occurs but in the context of a third party wishing to acquire one of those businesses (as was the case in the AMA Group demerger).
The key point going forward is that, if the ATO holds the position that we think it has taken with the AMA Group, the ATO has shut down the ability to obtain a tax-free demerger in scenario 2. However, tax-free demergers remain available in scenario 1.
A demerger broadly involves a restructuring of a corporate group by splitting it into two corporate groups (let us refer to them as the demerger group (the group undertaking the demerger), and the demerged group (the group that is demerged)). Both the demerger group and the demerged group will be owned directly and in the same proportions by the existing shareholders (Shareholders) of the pre-demerger group.
If the demerger rules apply:
- the demerger group is not subject to capital gains tax (CGT) on the disposal of the demerged group, and
- Shareholders are not subject to tax on receiving shares in the demerged group (this may otherwise be subject to tax as a capital return subject to CGT or a dividend subject to ordinary income tax).
In order for demerger relief to apply, a “demerger” must happen, which requires:
- a “restructuring” of the demerger group
- under the restructuring, the demerger group must dispose of at least 80% of the shares in the demerged group to the Shareholders
- importantly for this discussion, the Shareholders must acquire shares in the demerged group, and nothing else (“nothing else requirement”), and
- the Shareholders must acquire the same proportion of demerged shares and proportionate market value in the demerged group as it had in the demerger group.
The AMA Group transaction
The AMA Group proposed to demerge its Automotive Component, Accessory and Procurement Business (ACAD Business) while retaining its Vehicle Panel Repair Business (Panel Business), as shown in the following diagrams.
The Blackstone Group (Blackstone) proposed to acquire the Panel Business (ie the demerger group) following the demerger. Importantly, to satisfy the nothing else requirement, the demerger was not conditional on the proposed acquisition of the demerger group by Blackstone.
The ATO’s changing approach
The nothing else requirement requires Shareholders acquire shares and nothing else (such as cash or something of value).
The ATO used to accept the situation where the demerged group was the subject of a takeover after the demerger, provided the demerger was not conditional on a subsequent acquisition occurring, as was the case in the demerger involving Foodland, Metcash and Woolworths.
The ATO eventually changed its position and accepted the situation where it was the demerger group that was the subject of the takeover, such as where Buru Energy Ltd was demerged from ARC Energy Ltd. ARC Energy Ltd was later acquired by AWE Ltd, and both the demerger and acquisition formed part of the scheme. The ATO also granted demerger relief where the demerger of Talon Petroleum Limited from Texon Petroleum Limited was a condition precedent to Texon’s subsequent acquisition by Sundance Energy Australia Limited.
However, the ATO’s most recent position is reflected in its views in the AMA Group transaction as well as in recent class rulings, such as CR 2018/31 relating to the Westfield Group acquisition by Unibail-Rodamco SE. Notwithstanding the absence of any conditionality between the demerger and the acquisition, and notwithstanding that it was the demerger group that was the subject of the acquisition, it appears to us the ATO has most likely branded the demerger and acquisition as a single restructure such that the cash or shares to be received from the takeover would have breached the nothing else requirement.
It is clear that the availability of demerger relief where a demerger is followed by a subsequent sale is now more difficult, if not impossible. Future demergers, motivated by a possible sale, need to be carefully considered in light of the moving goalposts.