MER1GERS & ACQUISITIONS AMSEIRGAERNS & T AACQXUIASITTIOINOS ANSIA NG TAUXAITDIONE G U2ID0E 02 AUSTRALIA CHINA HONG KONG INDIA INDONESIA JAPAN KOREA MALAYSIA NEW ZEALAND PHILIPPINES 118S INGAPORE SRI LANKA TAIWAN THAILAND VIETNAM GLOBAL M&A CONTACTS 2 MERGERS & ACQUISITIONS ASIAN TAXATION GUIDE FOREWORD The year 2001 was a dismal period for the mergers and acquisitions (M&A) scene in Asia. The global economic downturn has affected M&A activities in the region. Based on figures released by Thomson Financial, announced M&A transactions in the Asia Pacific fell by a hefty 39.1 per cent to US$141.3 billion in 2001, compared with US$231.9 billion in 2000. However, a number of developments are expected to have a positive impact on the Asian M&A landscape in 2002. Chief among these are the upbeat economic outlook in the United States and the region, and China’s entry into the World Trade Organisation. Also helpful are the continued corporate and financial sector reforms in many parts of Asia, including Japan, Korea and Malaysia; consolidation in the Hong Kong wireless telecom sector; and the increasing focus on enhancing shareholder value. Yet M&A transactions remain a risky business, particularly those involving cross-border deals where regulatory issues could make or break a deal. Research shows that one out of every two M&A deals delivers disappointing results, either because of the failure to enhance corporate performance, or market position, or shareholder value Taxes can play a large part in adding value to the deal if managed properly, and conversely, destroy a deal if not handled with care. Proper planning can, for instance, help the parties involved take advantage of available tax concessions. The tax regulations and practices in Asia may be complex, even to tax generalists practising in the region, not to mention investors from outside Asia. This book outlines some of the major taxation issues that purchasers and sellers will need to consider before embarking on an M&A deal in Asia. This is the second edition of the Guide and is available for the first time in CD-rom format. An expanded list of countries is covered in this Guide, containing information from 14 countries (compared with 12 in the previous Guide). Also included in this guide are the PricewaterhouseCoopers contacts in Asia, Europe and America who can assist you with your deal wherever you or your target may be located. Our tax consultants are deal architects who can help you add value to the deal. They will participate in the whole M&A process starting with pre-deal negotiation, due diligence, tax structuring and post-merger integration. Our aim is not only to assist our client to identify and manage the risks involved in the acquisition, but more importantly, to assist the client to identify and capitalise on the opportunities. David Toh Asian Leader for M&A Tax Services PricewaterhouseCoopers AUSTRALIA CHINA HONG KONG INDIA INDONESIA JAPAN KOREA MALAYSIA NEW ZEALAND PHILIPPINES 118S INGAPORE SRI LANKA TAIWAN THAILAND VIETNAM GLOBAL M&A CONTACTS 3 MERGERS & ACQUISITIONS ASIAN TAXATION GUIDE MERGERS & ACQUISITIONS ASIAN TAXATION GUIDE 2002 CONTENTS Post Deal Integration 04 Australia 06 China 20 Hong Kong 32 India 39 Indonesia 51 Japan 63 Korea 83 Malaysia 95 New Zealand 107 Philippines 118 Singapore 132 Sri Lanka 145 Taiwan 157 Thailand 169 Vietnam 180 Global M&A Contacts 192 AUSTRALIA CHINA HONG KONG INDIA INDONESIA JAPAN KOREA MALAYSIA NEW ZEALAND PHILIPPINES 118S INGAPORE SRI LANKA TAIWAN THAILAND VIETNAM GLOBAL M&A CONTACTS 4 MERGERS & ACQUISITIONS ASIAN TAXATION GUIDE POST DEAL INTEGRATION™ (PDI) An important factor in the success of a deal, be it a merger, acquisition or buyout, is the prompt implementation of the business strategy immediately after the transaction is sealed. However, this process is often chaotic, with groups often losing control of their tax position. A failure to align tax strategy with business strategy and a lack of clear decision-making on tax issues will delay successful integration and will mean missed opportunities for optimising the group’s tax position. PricewaterhouseCoopers’ global M&A specialists have developed a methodology called Post Deal Integration (PDI) to assist our clients in overcoming these problems. Risks and opportunities There are a number of integration risks that may result from a deal. Tax costs may arise when business structures are being reorganised. These could be caused by the transfer of taxable values between entities or countries, or through the loss of tax attributes such as deduction for losses. Risks can also arise from the lack of information, the disruption of processes and unclear decision making. These need to be recognised and managed. PwC’s PDITM approach can help organisations to avoid such pitfalls, and maximise the tax advantages of a deal through identifying important tax issues, prioritising them and mapping out a focused workplan to implement various projects. Indeed, mergers and acquisitions create unique opportunities for tax structuring and optimising the enlarged group’s tax profile. Solutions that would be intrusive for an existing business will be less so when a new organisation is created. A key opportunity is created by the existence of a commercial rationale for any tax restructuring. PDI can help organisations to address conflicting approaches of the legacy groups of companies, for, no matter how effective the tax strategies were for the groups prior to their merger, these are almost certain to be inappropriate for the new combined group. PwC Approach PDI is a systematic, robust process to capture quickly the best solutions at the crucial period immediately after a deal is sealed by delivering focused output in the first weeks of integration. AUSTRALIA CHINA HONG KONG INDIA INDONESIA JAPAN KOREA MALAYSIA NEW ZEALAND PHILIPPINES 118S INGAPORE SRI LANKA TAIWAN THAILAND VIETNAM GLOBAL M&A CONTACTS 5 MERGERS & ACQUISITIONS ASIAN TAXATION GUIDE The key stages are diagrammatically illustrated below. Post Deal Integration: Overall approach Information Gathering Decision Making Implementation Commercial Projects Preliminary Kick-Off Tax Brainstorming Workplan Planning Meeting Briefing Tax Projects Consensus Commercial Understanding Identify key DELIVERABLES on goals briefing; and priority areas consensus formulating and related Project on the tax tax issues workplans commercial strategy rationale This approach ensures that the relevant information is gathered, and priorities and values are identified. The prioritisation will consider both the risks and cost vis-a-vis financial rewards. The final stage is to deliver a focused workplan. The outcome from the work plan will be various tax saving measures to be implemented along- side the business and management integration. The process is scaleable depending on the complexity and the size of the deal. Where a robust process is in place, the chances of success increase. Past researches have shown the most common mistake made in the deal environment is lack of implementation. Our proven process helps avoid this and therefore adds value. PDI can assist the enlarged group to • maintain control of key tax areas during the transitional period, hence reducing tax risk; • focus resources on quick wins, bringing immediate tax benefits and key strategic changes which have a major impact on the group effective tax rate; • develop a longer term tax strategy which takes advantage of business change to optimise the group tax position over the medium term; and • ensure that tax strategies contribute to the success of the deal. The success of a deal does not end with the signing of the sale and purchase agreement. It is judged by the value that can be harvested from the enlarged group. Tax savings can contribute significant to the after-tax profit and thus impact greatly on shareholder value. Our PDI team, working closely with the post-deal services team from our Transaction Services unit, can help a merged group achieve such important milestone. AUSTRALIA CHINA HONG KONG INDIA INDONESIA JAPAN KOREA MALAYSIA NEW ZEALAND PHILIPPINES 118S INGAPORE SRI LANKA TAIWAN THAILAND VIETNAM GLOBAL M&A CONTACTS 6 MERGERS & ACQUISITIONS ASIAN TAXATION GUIDE AUSTRALIA Country M&A Team Sydney Country Leader ~ Ian Farmer Tony Clemens David Pallier Wayne Plummer Michael Frazer Mark Kogos Norah Seddon Melbourne Tim Cox Peter Le Huray Jeff Shaw Peter Collins Vanessa Crosland Christian Pellone Chris Morris AUSTRALIA CHINA HONG KONG INDIA INDONESIA JAPAN KOREA MALAYSIA NEW ZEALAND PHILIPPINES 118S INGAPORE SRI LANKA TAIWAN THAILAND VIETNAM GLOBAL M&A CONTACTS 7 MERGERS & ACQUISITIONS ASIAN TAXATION GUIDE SECTIONS General Information Structuring a Share Deal Sructuring an Asset Deal Exit Route Ending Remarks – Preparation for a Deal AUSTRALIA CHINA HONG KONG INDIA INDONESIA JAPAN KOREA MALAYSIA NEW ZEALAND PHILIPPINES 118S INGAPORE SRI LANKA TAIWAN THAILAND VIETNAM GLOBAL M&A CONTACTS 8 AUSTRALIA MERGERS & ACQUISITIONS ASIAN TAXATION GUIDE GENERAL INFORMATION (i) Introduction The Australian taxation system is going through a period of significant change. The Government has launched various taxation initiatives in recent years, including: •complex tax reform measures which follow a review of business taxation; •the rewrite of the entire Income Tax Assessment Act into plain English; •the introduction of a goods and services tax (GST) from 1 July 2000; and •the introduction of the new debt/equity and thin capitalisation regime from 1 July 2001. The Government is also on the verge of introducing a new consolidations regime which will treat groups of wholly owned Australian companies as a single tax entity. These rules are expected to apply from 1 July 2002. These initiatives have created a complicated tax landscape for structuring M&A transactions. However, there are still many opportunities to structure an M&A transaction in a manner which delivers significant value to both the vendor and purchaser – particularly in terms of capital gains tax planning, and optimising funding and repatriation arrangements. There is no legal concept of a merger in Australia as it exists in other countries. An effective merger can arise by acquiring the target company and then liquidating that company and transferring its assets to the acquisition vehicle. This can generally be achieved without any income tax or capital gains tax, where the target company is 100% owned by the acquisition company. However, the transfer of property from the target company to the acquisition company may be subject to stamp duty (at rates of up to 5.5%). Various exemptions from such stamp duty exist in some states, and therefore the ultimate stamp duty liability will depend on the location of the assets. A cross-border merger can also be achieved in a similar way, though the relief from income tax, capital gains tax and stamp duty is not likely to be available and therefore there will be a more significant tax cost. AUSTRALIA CHINA HONG KONG INDIA INDONESIA JAPAN KOREA MALAYSIA NEW ZEALAND PHILIPPINES 118S INGAPORE SRI LANKA TAIWAN THAILAND VIETNAM GLOBAL M&A CONTACTS 9 AUSTRALIA MERGERS & ACQUISITIONS ASIAN TAXATION GUIDE (ii) Common Forms of Business Entity a)Corporation The corporation is the most common form of business enterprise in Australia. Corporations are flexible investment vehicles regulated by federal corporations legislation. They are a legal entity distinct from its shareholders, and are taxed as a separate entity. b)Partnerships and Trusts Partnerships and trusts are currently both flow through entities for tax purposes. c)Unincorporated Joint Ventures Unincorporated joint ventures are simply a contractual association between two or more parties, and are sometimes used where parties wish to share in the output of a venture rather than to receive income jointly. d)Branches An Australian branch of a foreign corporation is sometimes used where an investment is likely to incur losses in the early years. It is currently not regarded as a separate entity for tax purposes. Although there has been some movement towards aligning the tax treatment of branches with companies as part of the tax reform process, no changes have been introduced to date. (iii)Foreign Ownership Restrictions Australia has very few sectors where foreign investment is restricted. Foreign investment in media, the big four Australian banks and domestic airlines are some examples where restrictions apply. The government administers its foreign investment policy through the Foreign Investment Review Board (FIRB). In general terms, all foreign investment proposals must be submitted to the FIRB for approval, unless they are exempt. Exempt proposals include a portfolio (less than 15%) investment in a public or private company, or where the value of the target Australian business is less than $50m. However, foreign investors may, in most instances, expect approval within 30 days. Only around 2% of proposals are ultimately rejected by the FIRB. (iv)Tax Rates a)Corporate Tax The corporate tax rate in Australia was reduced from 34% to 30% from 1 July 2001. b)Withholding Tax Interest, dividends and royalties paid to non-residents are subject to Australian withholding tax, which is a final Australian tax for these non-residents. The rates of tax vary depending on whether Australia has a double tax agreement (DTA) with the recipient jurisdiction. In summary, the rates are usually as follows: AUSTRALIA CHINA HONG KONG INDIA INDONESIA JAPAN KOREA MALAYSIA NEW ZEALAND PHILIPPINES 118S INGAPORE SRI LANKA TAIWAN THAILAND VIETNAM GLOBAL M&A CONTACTS 10 AUSTRALIA MERGERS & ACQUISITIONS ASIAN TAXATION GUIDE Non Treaty Rate Treaty Rate % % Interest 10 10 Royalties 30 10 - 15 Unfranked dividends 30 15 (paid out of untaxed profits) Franked dividends Nil Nil (paid out of taxed profits) c)Fees for Service Fees for service are not currently subject to withholding tax, provided they are not considered royalties. One tax reform initiative announced is the introduction of a new, broader withholding tax for all Australian sourced income paid offshore. However, no legislation has been introduced to date. d)Branch Profits Tax There are currently no taxes on the remittance of branch profits to the foreign parent. However, Australia has a peculiar law which seeks to levy tax on dividends paid by non-residents which are sourced from Australian profits. This means that if a foreign company on-pays the Australian branch profits to its foreign shareholders as a dividend, the shareholder is technically liable to Australian tax (limited to any DTA rate which may be applicable). However, the Taxation Office has jurisdictional difficulties in collecting this liability. (v) Taxation of Dividends Dividends paid to Australian resident companies are fully taxable at the corporate rate, subject to the following concessions: • Franked dividends between Australian companies are fully rebateable. A rebate is a tax credit equal to the imputed tax attached to the franked dividend. • Unfranked dividends paid between 100% Australian group companies are also fully rebateable provided they have been members of the same group for the entire year of income. Unfranked dividends between non-group companies are no longer rebateable from 1 July 2000, and are therefore, in effect, fully taxable to recipient companies. • Non-portfolio dividends received from foreign investments are typically exempt from tax where the foreign income has in essence been comparably taxed. The recipient must own more than 10% of the foreign corporation to obtain this exemption. Australia has a conduit regime for dividends flowing through Australia to a foreign parent. Qualifying foreign source dividend income received from foreign investments are credited to a Foreign Dividend Account (expected to be expanded from 1 July 2002 to include all foreign income). Dividends on-paid to foreign shareholders out of this account are withholding tax free. AUSTRALIA CHINA HONG KONG INDIA INDONESIA JAPAN KOREA MALAYSIA NEW ZEALAND PHILIPPINES 118S INGAPORE SRI LANKA TAIWAN THAILAND VIETNAM GLOBAL M&A CONTACTS