Reflexos tributários do preço contingente earn out

Resumo

This work has as its purpose the analysis of the potential tax impacts derived from contingent price clauses in the context of M&A (mergers and acquisitions) transactions, namely earn out, since such clause is widely used in share/quota purchase agreements. Its mechanism may result in the release of certain amount in accordance with metrics associated with future and uncertain conditions, being the release of any retained portion usually triggered after the closing of the transaction. Such clause, however, is relevant not only because it is widely used, but also because of the discussions around the potential tax impacts, to sellers and/or buyers, associated with its use. When assessing the potential tax impacts derived from contingent price clauses, it is of importance to consider that these clauses may be associated with precedent condition or to a resolutory condition, ruled by Civil Law. Nonetheless, it is possible to say that tax legislation lacks clear guidance in regards to the potential tax impacts connected to conditions precedent and resolutory conditions and the issuance of a Normative Instruction, currently, Normative Instruction 1,700 from March 14th, 2017. In time, there is not much jurisprudence in respect to the effects of these conditions in the context of M&A transactions. In this respect, considering the creativity of the parties involved in M&A deals, de lack of clarity by tax legislation, poor jurisprudence in this respect and how accounting tax and civil law interplay, there are several complex issues that must be dealt with by stakeholders (for instance, if and how contingent clauses have any impact to the recognition of the goodwill). In this context, this work focuses on assessing the potential tax impacts associated with the adoption of contingent price clause – earn out – as well as in the context of M&A deals, taking into account not only the applicable legislation (civil and tax) and accounting rules, but also the doctrine, with the purpose of contributing to facilitate future discussions on this matter.

Ficha do documento

Tipo

Dissertação

Ano

2020

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/30154

Palavras-chave

TaxContingent pricePurchase pricePrecedent conditionResolutive conditionEarn outGoodwillTax impactsPreço contingenteContraprestação contingenteCondição suspensivaCondição resolutivaCusto de aquisiçãoPreço de aquisiçãoImpactos tributáriosTributárioDireitoDireito tributárioEmpresas - Fusão e incorporaçãoPreçosNegociaçãoBoa-fé (Direito)