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income tax

When a company repurchases shares from one or more of its stakeholders or investors, it uses the vehicle of a share repurchase agreement. The buyback is a tax-efficient method to return funds to investors.

These arrangements are a way for companies to legally repurchase shares from investors and shareholders. In the hands of the repurchasing entity, the repurchased shares are considered void upon conclusion of the repurchase and may be retained for future distribution. 

As leaders in income tax, we understand that to correctly benefit from the tax efficiency of these agreements, several important implications should be considered in the drafting process of the buyback agreement.
The key points to consider in drafting a Share Buyback Agreement:

A share buyback agreement details the share’s purchase amount, method, repayment schedule and any representations or warranties of the buyer and seller to each other.  The new guidelines provided for the Share Buyback process in 2008, align the process with the responsibility principles and reporting of the King IV Report on Corporate Governance. If a director or officer is repurchasing a company’s shares, then Section 48 (8) (a) of the Act states that a special resolution of the shareholders is required.

  • Solvency and Liquidity Considerations

As a buyback can be defined as a ‘distribution’ within Section 1 of the Companies Act, in addition to passing a resolution authorising the buyback, the board must satisfy itself that the company’s assets are either equal to or exceed its liabilities prior to the buyback taking place. In addition, the business must also be able to meet its normal obligations for a year after the purchase.

  • Shareholder Impact

The value of the shares purchased by a company in a share buyback is subject to additional restrictions outlined in the Companies Act. If the buyback involves the acquisition of more than 5% of the total shares within any class of its shares, it must follow the rules set out in Sections 114 and 115 of the Act.

According to Section 114, the company must appoint an independent expert to compile a formal report wherein is documented an assessment of the impact of the share buy-back and its effect on the value and interests of the remaining shareholders. Section 115 defines the special resolution that shareholders must approve.

  • Capital Gains Tax

Buyback transactions may be subject to capital gains tax (CGT) or paid as a dividend depending on the structure. Dividends are generally tax-free in South Africa under the Income Tax Act, and dividends paid to South African corporations are also exempt from dividend taxes, which greatly advantage the seller. However, it is essential to confirm these conditions to avoid the triggering of Capital Gains Tax.

No matter how simple or complex the transaction may seem, it is important to confer with the requisite experts to ensure that your agreement meets all relevant Companies Act and Income Tax Act provisions. If you are considering a share buyback, feel free to reach out to the MMS Group income tax team for an independent assessment of your buyback agreement as a safeguard against unwanted outcomes from the process.