INDONESIA LAW AND PRACTICE Contributed by: Agus Ahadi Deradjat (Agung), Gustaaf Reerink, Adri Dharma, Karina Widyaputri and Ilma Sulistyani, ABNR Counsellors at Law
• all controlled direct and indirect subsidiaries of the ultimate parent entity of the acquirer with sales and/or assets in Indonesia; and • all controlled direct and indirect subsidiar - ies of the target with sales and/or assets in Indonesia. The jurisdictional thresholds are also met if only one party involved in the transaction meets the threshold. The asset value and turnover are calculated based on the consolidated audited financial report of the ultimate parent entity – or, if no con - solidated financial report is available, the finan - cial reports of the ultimate parent entity and each of its subsidiaries – in all cases that occurred during the last year before the transaction date. Turnover includes sales of products produced domestically and imported products. Exported products should be excluded from the calcula - tion. If the asset or sales value of a party involved in the acquisition has decreased by 30% or more in an accounting year as compared with the year before, the value is calculated on the basis of the average of the past three years or, if the decrease occurred in under three years, the average of the past two years. Applicable Exemption A transfer of assets (tangible or intangible) is equivalent to a share acquisition and, accord - ingly, should be notified to the KPPU if there is: • a transfer of their management control or physical control; or • an increase in the ability of the acquirer to control a relevant market.
However, the following asset transfers are exempt. 1. A non-bank asset transfer transaction valued at less than IDR250 billion. 2. A bank asset transfer transaction valued at less than IDR2.5 trillion. 3. A transfer of assets that is carried out in the ordinary course of business (this depends on the business profile of the acquiring party and the purpose of the acquisition). Transactions in the ordinary course of business are: • transfers of assets that are finished goods from one undertaking to another for resale to consumers by an undertaking that is active in the retail sector (ie, the sale of consumer goods by retailers); and • transfers of assets that are supplies to be used within three months in the production process (ie, the purchase by an undertaking of raw materials and basic components from various sources for production). 4. The assets have no relationship with the busi - ness activities of the undertaking acquiring the assets. The transferred asset values in points 1 and 2 above are as cited in the latest financial state - ments, or as calculated at the sale, purchase or other legal asset transfer. The highest of these should be the basis for calculation of the thresh - old. If the transferred assets are privately owned, the asset value would be based on the value as referred to in the seller’s tax filing. If the transaction is carried out between affili - ates, the transaction is also exempt. A company is an affiliate of another if:
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