نقش و جایگاه مشوق‌های مالیاتی در ادغام بنگاه‌های اقتصادی

ادغام یک از مسیرهای جایگزین انحلال شرکت‌ها است که دارای مزایای متعددی می‌باشد. همچنین ادغام می‌تواند با اهدافی از قبیل چابک‌سازی، کاهش هزینه‌ها، افزایش هم‌افزایی در شرکت‌ها و بانک‌ها اجرا شود. علی‌رغم اینکه در ماده 111 ق.م.م و آیین‌نامه اجرایی آن ادغام بیان شده، اما برخی از ابهامات و نکات مغفول در این ماده و آیین‌نامه وجود دارد که می‌تواند ریسک‌های مالیاتی را برای شرکت‌های ادغام‌شونده و ادغام‌پذیر داشته باشد. در این پژوهش تلاش شده تا ضمن بررسی نکات ابهام ماده قانون یاد شده، انطباق آن با سایر قوانین و مقررات و استانداردهای حسابداری در جهت بهره‌مندی از مزایای معافیت مالیاتی ارائه گردد. در این پژوهش، مواردی از قبیل شرایط ادغام به ارزش دفتری براساس استانداردهای حسابداری، نحوه عمل با سهام خزانه براساس مفاد قانون تجارت، ارائه یا عدم ارائه اظهارنامه انحلال در راستای مفاد ماده 116 ق.م.م، مالیات مقطوع انتقال دارایی‌ها در شرکت‌های ادغام‌شونده مورد بررسی و تحلیل لازم ارائه شد. در پایان نیز با عنایت به مفاد ماده 119 ق.م.م و مواد 26 و 27 قانون خدمات مدیریت کشوری، پیشنهاداتی برای سازمان امور مالیاتی جهت بازنگری در آیین‌نامه اجرایی ماده 111 یا ارائه بخشنامه جهت شفاف نمودن مباحث مالیاتی ادغام برای شرکت‌ها و ممیزان مالیاتی بیان شده است. 

the role and position of tax incentives in the merger of economic enterprises

merge is one of the alternative ways to liquidate companies, which has several advantages. also, merge can be implemented with goals such as agility, cost reduction, and increased synergy in companies and banks. despite the fact that the merge is stated in article 111 of the islamic civil code and its executive regulations, there are some ambiguities and omitted points in this article and regulations, which can have tax risks for merging and merging companies. in this research, an attempt has been made to examine the ambiguities of the article of the mentioned law and its compliance with other laws and regulations and accounting standards in order to benefit from the benefits of tax exemption. in this research, cases such as the conditions of merge at book value based on accounting standards, how to act with treasury shares based on the commercial law, submission or non-submission of the declaration of liquidation in line with the article 116 of the islamic civil code, withholding tax on the transfer of assets in merging companies the necessary investigation and analysis was presented. in the end, taking into account the provisions of article 119 of the civil code and articles 26 and 27 of the law on state management services, suggestions for the tax affairs organization to revise the executive regulations of article 111 or provide a circular to clarify the tax issues of mergers for companies and tax auditors. is expressed.introductionthe funds or property that the government receives from individuals by law to cover public expenses is called tax. tax is one of the most important means of providing government revenue in any economic system. in addition to its revenue importance, tax is also an important tool for implementing government financial policies.the government’s goal in imposing taxes on various tax bases, including direct and indirect tax policies, is not simply to earn more income, which is why the categories related to its economic effects must be considered in imposing taxes. in addition to imposing taxes, the government can steer the economy in its intended direction by facilitating and creating some incentives and privileges through taxes.the significant number of registered companies with no activity in the country, the central bank’s emphasis on complying with the provisions of articles 16 and 17 of the law on removing barriers to competitive production and improving the country’s financial system for the banking system, economic conditions, etc., are factors that may lead shareholders of companies to liquidate them. liquidation, with its emphasis on determining the assets and liabilities of the company, is a time-consuming process and requires completing the relevant steps at the companies registration office, inviting creditors, fulfilling the prescribed tax requirements, etc. a solution that can reduce the process of liquidating companies is a merger. in addition to reducing the administrative process, using mergers of companies as an alternative to liquidation also brings other benefits, including benefiting from tax incentives.mergers are not the only alternative to liquidating companies, and this path also has other applications. mergers of companies can also be carried out to consolidate the capabilities of companies and strengthen them. this issue is foreseen in article 15 of the law on “maximum use of the country’s production and service capacity and support for iranian goods”.in the stock portfolios of holding companies, especially banks, there is a significant volume of companies with similar activities. these companies were either established by banks or transferred to them in exchange for claims from the government or the debt of the recipients of the facilities. in addition to the need to attract specialized personnel in each of them, managing a significant volume of companies also requires time and money. these cases can be reduced and their capabilities increased with the tax capacity of mergers.in chapter five of chapter three of the direct taxes law, tax issues of company mergers are referred to. although article 111 of this law deals with tax issues of mergers, experience has shown that in tax issues, differences in some cases, especially in compliance with accounting standards and its administrative process with the companies registration office and the tax affairs organization, cause legal entities to not welcome this legal capacity. on the other hand, the failure to fully address the dimensions of the tax of mergers and its processes in this article and its executive regulations will result in different behavior of tax areas and users of this path, which can lead to tax problems for companies and their shareholders. taxpayers should have the right to be informed about the method of determining taxable income, any action and decision regarding the resolution of tax disputes, and any action to collect taxes from their property and assets, and the tax authorities should be responsible.in this study, an attempt has been made to examine, through a library review and using a descriptive and analytical method, the tax issues of mergers along with other requirements of legal entities such as accounting and reporting standards and administrative processes with the companies registration office, the direct taxes law, the commercial law, and other laws and regulations, and finally to present suggestions in this regard.results and discussionthe tax benefits mentioned in the merger of companies require a merger at book value. according to the provisions of accounting standard 38, the merger of companies at book value will only be carried out in companies with a single control subject to the aforementioned standard and will not be carried out at fair value, therefore, tax benefits cannot be enjoyed in other companies with different shareholders.in the liquidation of companies, the transfer of some assets, including real estate and shares, is subject to a withholding tax following relevant laws and regulations. in the merger of companies, by article 2 of the executive regulations of article 111 of the civil code, the transfer of companies at book value will not be subject to any tax, including withholding tax. also, during the merger period, it will not be subject to the tax of the liquidation period. given that in the process of merging to use the tax benefits of book value merger, companies with single control may be shareholders of each other, in the case of creating treasury shares, to comply with laws and regulations, treasury shares need to be eliminated in order to reduce possible tax risks.one of the basic ambiguities in the process of merging companies is the submission or non-submission of a liquidation declaration. although during the merger period, according to article 111 of the tax code, they are not subject to the liquidation period tax, considering the economic activity of the merging company/companies, it is necessary to submit a tax declaration and handle it. the submission of the declaration, the responsibility for its submission, and the manner of handling it are ambiguous for the managers of the companies and the managers of the tax affairs organization. this issue is such that even tax auditors are ambiguous when obtaining the merger documents of the merging and merging companies. one of the ambiguities is the place of presentation of the documents. another ambiguity is the separate examination of the performance of the merging companies during the merger period, either independently or together with the examination of the performance of the merging company. although this study has attempted to examine the aforementioned ambiguities by examining the laws and regulations and provide relevant solutions, for greater transparency and for economic enterprises to use the predicted capacity, it is necessary to revise the executive regulations of article 111 of the tax code or for the tax affairs organization to take action in the form of a circular to scrutinize the tax process of the merger in line with its duties, including the note to article 192 of the tax code and articles 26 and 27 of the civil service management law. among the items required to revise the executive regulations or to refine the financial process of the merger in the form of a circular are matters such as the mechanism for submitting the declaration of the merger period and how to handle it, how to proceed with treasury shares to eliminate the inconsistency with the commercial law, how to use the new company method in the merger, and the inconsistency in the advantage of the merger at book value with accounting standard 38, etc. doing this can help economic enterprises to make greater use of the capacities foreseen in the tax law and also provide the government with the guidance it intends to provide for the formulated economic policies.