NORWAY Law and Practice Contributed by: Robin Aker Jakobsen, Amund Fougner Bugge, Jan Magne Langseth and Stig Walle, Simonsen Vogt Wiig
3.4 Timing and Tax Authority Ruling The timing for a spin-off (in a domestic, non‑listed context) is typically about nine to 13 weeks from “pro- ject start” to registration, including a statutory six- week creditor notice period. Listed company spin‑offs or those involving regulatory approvals often run for three to six months. It is not necessary to seek an advance tax ruling from the Norwegian tax authority and most standard spin‑offs proceed without a ruling. For more complex transactions, one should consider seeking a ruling for atypical features (eg, complex transactions or trans- actions involving a number of steps or cross‑border elements). The timing for such rulings is typically three to six months from a complete filing to decision but may vary depending on complexity and the authority’s workload. 4. Acquisitions of Public (Exchange- Listed) Energy and Infrastructure Companies 4.1 Stakebuilding What is customary with regard to the acquisition of a stake in a public company prior to making an offer depends on whether the takeover process is initiated by the target company or by the buyer. If the target company initiates a takeover process, it is common practice to require standstill undertakings from the interested parties. These undertakings are intended to protect shareholders’ interests and pre- vent stakebuilding before an offer is made, as share- holders statistically achieve a lower offer price per share when the bidder has acquired shares prior to making the offer. If the buyer initiates the process unilaterally, the tar- get company does not have the same opportunity to impose standstill restrictions. In such cases, acquisi- tions of shareholdings prior to the offer are somewhat more common – albeit still not regarded as customary in the Norwegian market.
required), shareholder approvals, and registration in the Register of Business Enterprises) should be satisfied. • Consideration in shares ‒ shareholder(s) of the demerging company receive shares in the receiving company/companies as consideration. • Continuity ‒ the following tax continuity principles apply at: (a) the corporate level – assets and liabilities are typically transferred at tax values; tax posi- tions linked to specific assets carry over to the recipient company, whereas general tax positions are split based proportionally on the relative value of the transferred versus retained business; and (b) the shareholder level – tax basis is apportioned between the “old” and “new” shares based on their relative market values at the time of the spin-off. • Proportionate allocation of share capital ‒ in a demerger, the nominal and paid-in share capital are allocated in the same proportion as the net values are distributed among the companies. With regard to VAT, transfers that qualify as a transfer of a business as a going concern (TOGC) are normally outside the scope of VAT. If the transaction does not qualify as TOGC, VAT consequences may arise. 3.3 Spin-Off Followed by a Business Combination It is feasible and fairly common for a spin-off to be immediately followed by a business combination (eg, spin‑off of a division into a newco followed by a merg- er with or sale to a third party). The key requirement for such a process is that the spin‑off must qualify for tax neutrality on a standalone basis (share consideration, tax continuity and proper basis allocation). Further, to comply with anti‑avoidance regulations, the parties must ensure genuine business purposes and coherent structuring. An immediate, pre‑agreed onward transaction is generally considered permis- sible, but the overall plan should be considered from an anti-avoidance perspective.
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