Section 719: Meaning of “change in the ownership of a company”
2231.This section gives the basic definition of “change in the ownership of a company” for the purposes of this Part of the Act. It is based on section 769 of ICTA.
2232.Section 769(1)(a) of ICTA is satisfied “if a single person acquires more than half the ordinary share capital of the company”. This raises the question: is this a reference to acquiring:
An additional holding (A);
The existing holding (X);
The total holding after the acquisition (T = A + X); or
T, but only if X<50%?
2233.Section 769(1)(a) of ICTA cannot be read as referring to the acquisition of X. Otherwise, a person who held more than 50% of the ordinary share capital and did not acquire any more shares would “acquire more than half the ordinary share capital”. As a matter of normal English usage, “acquires” cannot imply that.
2234.Section 769(1)(a) of ICTA cannot be read as referring to the acquisition of T, whether or not X<50%. According to Bramwell et al.(5):
“If one person owns 50 per cent. of a company’s shares and then buys 1 per cent. more, he does not thereby “acquire more than half” of the shares – he acquires 1 per cent. [Section 769(1)(b) and (c) of ICTA] refers to any number of persons acquiring holdings of shares that together amount to more than half of the ordinary shares in a company, but [section 769 (1)(c)] makes it clear that acquired holdings must be distinguished from existing holdings.”
2235.Bramwell et al. are correct on this point, because:
There is no indication that “acquire” has to have a different scope in section 769(1)(a) and (c) of ICTA;
Since Parliament has not said “acquires a total of more than half the ordinary share capital” it is not legitimate for any such words to be read in; and
Section 769(2)(b) of ICTA says “… may be regarded as having acquired a percentage holding equal to the increase” (emphasis added).
2236.The acquisition of “more than half the ordinary share capital” in section 769(1)(a) of ICTA is therefore a reference to the acquisition of the additional holding, A. Accordingly, to sharpen the drafting, subsection (2) expressly refers to the acquisition of “a holding of more than half the ordinary share capital”.
2237.Section 769(1)(c) of ICTA says “less that 5 per cent”.Subsection (5) corrects this typo.
Bramwell et al. Taxation of Companies and Company Reconstructions (Thomson, Sweet & Maxwell, November 2002) paragraph A 9.2.7 footnote 3.