CHAPTER THREE: TRANSFER OF ASSETS AGAINST SHARES

Definitions
104. In this Chapter
"asset" an asset other than
(1) movables of an individual that he keeps for his personal use or for the
personal use of his relatives or of his dependents;
(2) business stock;
(3) a right, whether by Law or in equity, to occupy real estate used for
residential purposes and not for earnings or profit.
"company"
(1) an Israel resident company incorporated in Israel under the Companies
Ordinance or the Companies Law or a cooperative society incorporated
in Israel under the Cooperative Societies Ordinance;
(2) a company approved by the Director for this purpose, which is a foreign
resident, or which is an Israel resident foreign company, as defined in
the Companies Ordinance or in the Companies Law; aforesaid
approval may be conditional on the provisions of collateral, or on other
conditions that the Director will prescribe;
"capital gain" including land appreciation.

Transfer of all rights to an asset
104A.(a) If a person transfers all his rights in an asset to a company in
consideration of rights that exist in that company, then he shall not be
charged tax under this Ordinance, under the Land Appreciation Tax
Law or under the Inflationary Adjustments Law, as the case may be, if
all the following conditions have been met:
(1) during at least two years after the day of the transfer the
transferor holds at least 90% of each of the rights in the 161
company;
(2) the company holds the asset transferred to it during at least two
years after the day of the transfer;
(3) the ratio between the market value of the rights allocated to the
transferor and the market value of all the rights in the company
immediately after the transfer equals the ratio between the
market value of the transferred asset and the market value of the
company immediately after the transfer;
(4) repealed
(b) The provisions of subsection (a) shall not apply to an asset owned by a
partnership or jointly owned by several owners.
(b1) If an asset was transferred to a company that is a real estate
association or became a real estate association after the transfer of the
asset, then the provisions of subsection (a) shall apply, on condition
that all the transferor's rights in the asset were transferred, and that if
the transferred asset is land construction of a building on that land
was completed within four years after the transfer, according to
conditions set by the Director.
(c) Repealed

Transfer of an asset by several persons
104B.(a) If partners in a partnership or joint owners cause all their rights in an
asset owned by the partnership to be transferred or if they transfer all
rights to an asset jointly owned by them, as the case may be, to a
company set up especially for that purpose and if that company owned
no other asset and engaged in no other activity at that time or
previously, and all that only against the allocation of shares in that
company, then they shall not be charged tax under this Ordinance,
under the Inflationary Adjustments Law or under the Land Appreciation
Tax Law, as the case may be, if all the following conditions have been
met:
(1) during at least two years after the day of the transfer, the share of
each partner or of each joint owner in each of the rights in the
company is equal to the share each had in the assets transferred
as aforesaid, or to his share in the partnership, as the case may
be;
(2) the company holds the assets transferred to it for at least two
years after the day of the transfer;
(3) the ratio between the market value of the rights allocated to each
of the partners or owners and the total market value of the
company immediately after the allocation is equal to the ratio
between the market value of that partner's or owner's share in the
asset and the market value of the company immediately after the
date of transfer;
(4) if land was transferred to the company as said in this subsection,
and if thereafter the company became a real estate association,
then the exemption prescribed in this section shall be granted
only if construction of a building on the land was completed within
four years after the transfer, in accordance with conditions to be
set by the Director.
(b) If several jointly owned assets were transferred, or if a jointly owned
asset and an asset owned by a partnership were transferred, then the
provisions of subsection (a) shall apply only if the share of each of the
joint owners of each transferred asset is equal to his share in all the 162
other assets, and in the case of a partnership also to his share in the
partnership.
(c) (1) For the purposes of subsections (a) and (b), rights in a single
company shall be deemed a single asset, and the holders of
those rights shall be deemed partners to that asset.
(2) A company, to which an asset was transferred under this section
in the past shall also be deemed a company said in subsection
(a), as long as all the following holds true from the date of the
company's establishment until two years after the day on which
an additional asset was transferred under this section:
(a) the holders of rights in the company have not changed;
(b) the ratio between the market value of the rights allocated to
each transferor for the transfer of an additional asset and
the value of the additional asset on the day of its transfer, is
the same as the ratio between the market value of the
transferor's share of all the assets which he transferred to
the company and the market value of the company
immediately after the transfer.
(d) If each of several individuals transfers on the same date a depreciable
asset to a company set up especially for that purpose only against the
allocation of shares, and if that company owned no other asset and
engaged in no other activity at that time or previously, then they shall
not be charged tax under this Ordinance at the time of the transfer, if all
the following conditions have been met:
(1) the purpose of the transfer is the unified management and
operation of the transferred assets;
(2) a proportion of all the shares in the company was allocated to
each of the individuals against the transfer of the asset or assets,
in the ratio between the market value of the asset which he
transferred, and the market value of all the assets transferred
under this subsection;
(3) during at least two years after the day of the transfer no change is
made in the rights of the shareholders in the company that was
set up;
(4) the transferred assets will be used by the company in the course
of the company's business, in a manner that is customary under
the circumstances, and they will remain in its possession for at
least two years after the day of the transfer;
(5) not more than ten individuals will form a company under this
subsection; however, the Director may permit a larger number of
individuals to join in the formation of a cooperative society;
(6) the market value of any asset transferred by any one of the
individuals shall not exceed the market value of any asset
transferred by another individual more than four-fold, all at the
date of the transfer; the Director may change the said ratio, for
reasons which shall be recorded;
(7) no asset that is a real estate right shall be transferred under the
terms of this subsection.
(e) The provisions of subsection (d) shall not apply to an asset owned by a
partnership or owned jointly by several owners.
(f) If a company transfers an asset to another company, in which the
holders of rights are identical with the holders of rights in the transferor
company, and if the share of each in the rights of the company is
identical to the share of his rights in the transferor company (hereafter: 163
sister company), then at the time of the transfer it shall not be charged
tax under this Ordinance, under the Inflationary Adjustments Law or
under the Land Appreciation Tax Law, as the case may be, if all the
conditions prescribed by the Minister of Finance in regulations have
been met.

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Note: Under section 75 of Amendment No. 147 the following subsection (g) is
in effect only in respect of tax years 2005 to 2007 Tr.

(g) (1) If a foreign resident company transfers all its assets and activities
to an Israel resident company, in which the holders of rights are
identical to the holders of rights in the transferor company, and
the part of each holder of rights is identical with his right in the
transferor company, then the transfer shall not be charged tax
under this Ordinance, if the Director certified that the conditions
and restrictions prescribed by the Minister of Finance under
paragraph (2) have been complied with.
(2) The Minister of Finance may, with approval by the Knesset
Finance Committee, prescribe conditions and restrictions for
purposes of the tax exemption prescribed in paragraph (1),
including the matter of tax postponement, the original cost, the
tax rate that will apply to capital gains or profits and dividends
that stem from the transferor company, and the period during
which shares shall be held in order to get the exemption under
this section; he also may prescribe provisions and reports for the
implementation of this section.
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Transfer of shares to parent company
104C. (a) If a company transfers to the holder of its shares all the shares it holds
in another company (hereafter: the transferred shares), then it shall not
be charged tax under this Ordinance or under the Inflationary
Adjustments Law in respect of the sale of the transferred shares, if all
the following conditions have been met and on condition that the
Director's approval was obtained before the transfer:
(1) the shareholder (hereafter: the parent company) is a company
that holds all the rights in the transferor company;
(2) no consideration is given for the transferred shares, either directly
or indirectly, in cash nor in kind;
(3) the transferred shares will remain in the parent company during
at least two years after the day of transfer;
(4) during at least two years after the day of transfer no change
occurs in the parent company's rights in the transferor company;
(5) the Court gave approval under section 303 of the Companies
Law, if that was required;
(6) the asset is transferred for a business and economic purpose,
improper tax avoidance or tax reduction not being among the
main purposes of the transfer.
(b) If the transferor company had an approved enterprise, within its
meaning in the Investment Encouragement Law, which on the date of
the transfer is able to distribute dividends under section 47(b)(2) or
51(c) of that Law, then the said share transfer shall be treated like an
aforesaid dividend distribution.
(c) The Director shall make rules on the adjustments necessary for 164
purposes of this section and for purposes of the Inflationary
Adjustments Law in consequence of the implementation of this section,
in respect of the transferor company and of the parent company, in
respect of the determination of the original cost or of the consideration,
or in respect of any other matter.
(d) Repealed

(e) (1) The provisions of subsections (a) to (c) shall apply with changes to be prescribed by the Director, also on the non-applicability of part of the said provisions to banking corporations within their meaning in the Banking (Licensing) Law
5741-1981, and to companies under their control, which in tax
years 1996 and 1997 transfer rights that they hold in real
bodies corporate, within their meaning in the said Law, on
condition that if the transferor is the banking corporation the
company to which the shares were transferred will not have any
income as said in section 2(1) in the course of two years after the
date of the transfer;
(2) the conditions said in subsection (a)(3) and (4) shall also apply to
a transfer said in paragraph (1), other than in a sale of rights in a
real body corporate that was transferred to a parent company that
is the banking corporation, or in a sale of rights in the transferor
real body corporate, when such sales are performed in order to
comply with provisions of the Banking (Licensing) Law 5741-
1981;
(3) without derogating from the provisions of any statute, decisions to
transfer shares said in this subsection require approval by the
General Meeting of the transferor body corporate and they shall
be treated like extraordinary resolutions within their meaning in
section 115(a)(3) of the Companies Ordinance.
(e1) If the Director did not approve the transfer of shares under the
provisions of subsection (a), then appeal may be lodged against his
decision, as if it were an Order under section 152(b).
(f) The Minister of Finance may, with approval by the Knesset Finance
Committee, prescribe provisions on the application of all or part of this
section to foreign companies, with the restrictions and on the conditions
he shall prescribe.

Sale of rights and assets
104D. For the purposes of sections 104A to 104C:
(1) if one of the things specified in subparagraphs (a) to (d) below occurs,
that shall not be deemed to affect the continued holding of rights in the
company, provided that the rights of the persons who held the rights
immediately after the transfer do not at any time during two years
after the transfer drop to less than 51% of each of the rights in the
company;
(a) shares as defined in section 102 were offered to the public on an
Exchange by prospectus, which states that the Exchange agreed
to list the shares for trading on it;
(b) during two years after the date of the transfer one or more of the
holders of rights in the company to which the asset was
transferred voluntarily sold less than 10% of each of the rights
held by him, or he sold a greater percentage with the consent of
the other shareholders, on condition that the following holds true:
(1) all the rights sold by all holders of rights do not exceed 10% 165
of the rights in the company;
(2) all the holders of rights in an asset before its transfer to the
company shall not sell a percentage of their rights in the
company that exceeds the difference between the
percentage of their rights immediately after the transfer and
90% of the rights in the company;
(c) new shares were allocated to a person who did not hold rights in
the company before the allocation, in an amount that does not
exceed 25% of the share capital before the allocation;
(d) repealed
(1a) an involuntary sale of rights shall not be deemed an infringement of the
continued possession of rights in the company;
(2) holders of rights who hold rights traded on an Exchange shall not for
purposes of paragraph (1) be included among the holders of rights,
unless they were controlling members on the date of the merger; for
this purpose, "controlling member" other than a benefit fund and a
trust fund;
(3) the replacement of assets to which section 96 or section 27 was made
applicable or their involuntary sale shall not be deemed the sale of an
asset;
(4) the sale of any asset, which is not liable to Land Appreciation Tax
because of the provisions of this Chapter, shall be liable to acquisition
tax at the rate of 0.5% of its value;
(5) Notwithstanding the provisions of this Chapter, the Director may
prescribe rules, according to which the split or merger of a company, to
which an asset said in this Chapter was transferred, will not be deemed
a violation of the conditions specified in this Chapter.

Calculation upon sale of asset
104E.(a) If an asset was transferred as said in sections 104A and 104B, then its
original cost, the balance of its original cost, the day of its acquisition
and its acquisition price shall be for purposes of this Ordinance, of the
Inflationary Adjustments Law and of the Land Appreciation Tax Law
as they would have been for the transferor, and the seller shall also be
allowed to deduct those deductions, which the transferor would have
been allowed to deduct at the sale of the asset, but the original cost of
a transferred asset that is a security or a future traded on an Exchange
shall be determined according to the provisions of section 104F, as if
the security or future were a share, as said in that section; for the
purposes of this section: "future" as defined in section 88.
(b) The transfer of an asset under sections 104A to 104C shall be deemed
a sale, for calculation of the periods under section 21A of the Industry
Encouragement Law.
(c) A capital gain or a capital loss created in consequence of the sale of an
asset that was transferred as said in sections 104A to 104C, must not
during the period of two years after the transfer date be set off against
profit or loss under sections 28 or 92, as the case may be; those two
years shall not be taken into account for purposes of the restriction
prescribed in section 92 in respect of the period of the set off.

Sale of shares
104F. The following provisions shall apply to the sale of shares that were received
for an asset, as said in sections 104A and 104B:
(1) the balance of the original cost of the transferred asset, adjusted from 166
the day of acquisition of the asset by the transferor until the day of
transfer, less any real loss if the asset had been sold on the day of
transfer, but not less than the original cost of the transferred asset
(hereafter: adjusted cost) shall be the original cost of the shares; the
differential between the balance of the original cost of the transferred
asset and the adjusted cost shall hereafter be called the "adjustment
differential"; for this purpose: "real loss" the amount by which the
market value of the asset is less than its adjusted original cost;
(2) an adjustment differential, which constitutes part of the original cost of
the sold shares, shall be added to the consideration from the sale of the
shares and shall be deemed an additional inflationary amount;
(3) the date of transfer of the asset shall be deemed the date of the shares'
acquisition; however, upon the sale of shares obtained for an asset that
was acquired up to the determining date, the date on which the
transferred asset was acquired shall be deemed the day of acquisition
of the shares for purposes of the calculation of the real capital gain up
to the determining date.

Miscellaneous provisions
104G. (a) The provisions of sections 104A to 104C shall apply only if the
transferor of the asset informed the Assessing Officer of the transfer of
the asset within 30 days of its transfer, and if he attached to his
notification returns, affidavits and particulars, all as the Minister of
Finance prescribed in regulations.
(b) (1) The provisions of section 103J, subject to the provisions of
paragraph (2), and of sections 103L and 103O shall apply to the
transferor of an asset, as if he were a transferor company or a
shareholder in it, as the case may be, and as if the company to
which the asset was transferred were a merged company, all
mutatis mutandis as the case may be.
(2) If it turns out that one of the conditions for the grant of benefits
prescribed in section 104A, 104B or 104C was not complied with
on time (hereafter: violation), then the transfer of the asset that
was not charged tax at the time of the transfer shall be liable to
tax as said in paragraph (1), or liable to tax according to the
transferred asset's market value on the day of the violation,
whichever is greater, unless the Assessing Officer is satisfied that
the violated obligation was violated because of special
circumstances beyond the transferor's control; the value set as
aforesaid in this paragraph shall be the original price of the asset
for the company and the day in respect of which the said value
was set shall be the day of acquisition.
(c) If a company transferred an asset, then during two years after the
date of the transfer the provisions of the Inflationary Adjustments Law
and of section 130A, which would have applied to the company that
transferred the asset, shall apply to the asset and to the company to
which it was transferred, all with adjustments to be prescribed by the
Director.
(d) The applicant for certification under this Chapter shall pay an
application fee in an amount to be set by the Minister of Finance, and
the Minister may set different fees for different categories of transfers,
also taking into consideration the value of the transferred assets and
the manner of their transfer.
167
Exchange of shares
104H (a) In this section
"exchange of shares" the transfer of shares of a company (in this
section: transferee company), including rights to acquire shares (in this
section: the transferred shares) as consideration for the allocation of
shares of another company that are listed for trading on an Exchange,
either with or without additional consideration (in this section: the
merged company and the allocated shares);
"transferor" whoever transferred the shares to the merged company;
"blocked share" a share, the sale of which is absolutely restricted by
a statutory provision or by orders from the authority that is statutorily
competent to make rules for trading in securities, during the designated
period (in this section: the blocked period);
"day of sale" the earlier of the following:
(a) the date on which the allocated share was sold;
(b) the end of the postponement period; for this purpose: "the
postponement period"
(1) in respect of allocated shares that are not blocked shares

(a) in respect of one half of them 24 months after the
day of exchange; allocated shares, including blocked
shares, sold until the end of the said 24 months shall
be taken into account in calculating the half;
(b) in respect of their balance forty-eight months after
the day of the exchange;
(2) in respect of blocked shares
(a) in respect of one half of them 24 months after the
day of exchange or six months after the end of the
blocked period, whichever is later, on condition that
blocked shares with shorter blocked periods than
other blocked periods set for the balance of the
blocked shares be first taken into account; shares
sold as said in subparagraph (1)(a) until that date
shall be taken into account in calculating the half;
(b) in respect of their balance forty-eight months after
the day of the exchange, or six months after the end
of the blocked period, whichever is later;
"trustee" a person approved by the Director as trustee for the
purposes of this section;
"value at the end of the postponement period" the amount
obtained by adding up the amounts of the share's value on the
Exchange at the end of trading on each of the thirty trading days before
the end of the postponement period, divided by 30;
"additional consideration" a cash amount given for the transferred
shares, in addition to the allocated shares;
(b) (1) An exchange of shares shall not at the time of their exchange
be deemed their sale for purposes of Part Five, of the Real
Estate Taxation Law or of the Inflationary Adjustments Law, if all
the following hold true:
(a) the ratio between the market value of the transferred
shares and the market value of the merged company
immediately after the exchange of shares is like the ratio
between the market value of the allocated shares, including
the additional consideration, and the market value of all 168
rights in the merged company immediately after the
exchange of shares;
(b) the merged company allocated shares with equal rights to
all persons who transferred from the same company;
(c) the transferor paid an advance in respect of the additional
consideration at the tax rate that applies under section
91(a), (b) or (b1), as the case may be; the provisions of
section 91(d) or the provisions that apply to a real estate
association act under the Real Estate Taxation Law, as the
case may be, shall apply to the advance, mutatis mutandis;
(d) all the shares and also all the rights of the transferor and of
parties associated with him to acquire shares in the
transferee company were transferred as part of the
exchange of shares, unless the Director approved
otherwise and on the conditions he set;
(e) an application was submitted to the Director that he certify
that the share exchange meets the conditions specified in
this section, on condition that the application was submitted
at least 30 days before the date of the exchange of shares,
and the Director so certified; certification under this
paragraph may be conditional on the provision of
guaranties to the Director's satisfaction and on other
conditions, as the Director will prescribe;
(f) the allocated shares shall be deposited with a trustee, to
secure payment of the tax and compliance with the
provisions of this section;
(2) if the Director determined that the exchange of shares did not
meet the conditions prescribed in this section, then his decision
may be appealed as if it had been an Order under section 152(b);
(3) notwithstanding the provisions of this subsection, when shares of
a transferee company that is a real estate association are
exchanged, then the provisions of section 104D(4) shall apply,
mutatis mutandis.
(c) If the conditions said in subsection (b) have been complied with, then
the following provisions shall apply:
(1) the allocated shares shall be deemed to have been sold on the
day of sale;
(2) the consideration shall be calculated according to the following
provisions:
(a) if the allocated share was sold before the end of the
postponement period the consideration for the sale;
(b) if the allocated share was not sold before the end of the
postponement period its value at the end of the
postponement period;
all with the addition of the adjusted additional consideration and
the amounts of dividends distributed in respect of the allocated
shares during the period between the date of the exchange and
the day of sale, divided by the number of allocated shares; for
this purpose: "the adjusted additional consideration" the
additional consideration, adjusted from the date of the exchange
of shares until the day of the sale;
(3) the provisions of section 104F shall apply, mutatis mutandis, and
for this purpose the transferred shares shall be deemed an asset;
(4) repealed 169
(5) the following provisions shall apply to the sale of the allocated
shares:
(a) the part of the capital gain up to the date of the share
exchange shall be charged tax at the tax rate that would
have applied, if the provisions of section 104H did not apply
on the date on which the shares were exchanged;
(b) the part of the capital gain from the date of the share
exchange up to the day of sale shall be charged tax in
accordance with the provisions of section 91(a) or (b), as
the case may be;
(c) when the allocated share is sold by a foreign resident, then
the tax exemption said in section 97(b2) shall apply only if
on the date of the share exchange the transferor would
have been entitled to the said tax exemption, had he sold
the transferred shares on the day of their exchange;
(d) for purposes of this paragraph: "part of the capital gain
up to the date of the share exchange" the capital gain,
multiplied by the ratio of the period between the acquisition
of the transferred shares and the date of the share
exchange, to the period between the said acquisition and
the day of the sale of the allocated shares;
(6) if the transferor sold the allocated shares after the end of the
postponement period, then the allocated shares shall be deemed
to have been newly acquired, the end of the postponement
period shall be deemed the day of acquisition, and the value at
the end of the postponement period shall be deemed the original
cost;
(7) notwithstanding the provision of any statute, a merger or split of
the merged company after the exchange of shares shall not be
deemed a sale of the allocated shares, and the Director may
make provisions on this matter in special rules;
(8) (a) for purposes of section 94B, profits available for
distribution, as defined in that section, which accrued in the
transferee company from the end of the tax year before the
year in which the transferred shares were acquired by the
transferor until the end of the tax year before the year in
which the exchange of shares was carried out (hereafter:
year of exchange) shall be deemed profits available for
distribution when the allocated shares are sold; however,
profits available for distribution which accrued before
January 1, 1996, shall not be taken into account;
(b) the Director shall prescribe rules for the determination of
profits available for distribution in an exchange of shares,
when the allocated shares are shares of an Israel resident
company;
(9) an amount of tax which the transferor paid to the Assessing
Officer in respect of dividend income on allocated shares, which
was distributed during the period between the date of the
exchange and the day of sale shall be adjusted from the day of
the tax payment until the day of sale, and shall be divided by the
number of allocated shares in respect of which the dividend was
distributed, and credit in its respect shall be given against the tax
due on the capital gain when the allocated shares are sold;
(10) if bonus shares were allocated to the transferor during the period 170
between the date of the exchange and the day of sale, then they
shall be treated like allocated shares;
(11) (a) if the transferor was an Israel resident on the day of the
exchange of shares, then he shall be deemed to be an
Israel resident also on the day of the sale;
(b) if the transferor was a foreign resident and section 89(b)
would have applied, if he had sold the shares on the day of
the exchange of shares, then the allocated shares shall be
deemed an asset located in Israel.
(d) If the conditions said in subsection (b) have been complied with, then
the following provisions shall apply to the transferred shares held by the
merged company:
(1) a profit or loss created by the sale of the transferred shares shall
not be allowed to be set off, in the tax year in which the shares
were exchanged and during the following two years, against a
loss or profit in the merged company, all in accordance with
sections 28 or 92, as the case may be, and during the following
three years any profit or loss created by the sale of the
transferred shares shall not be allowed to be set off as aforesaid
against any profit or loss created by the sale of assets, the day of
acquisition of which was before the day of the exchange of
shares; the periods said in this paragraph shall not be included in
the restriction prescribed in section 92(b) in respect of the set-off
period;
(2) (a) the day of the exchange of shares shall be deemed the day
of acquisition of the transferred shares, and the market
value of the allocated shares at the time of the exchange of
shares, plus the additional consideration, if any, divided by
the number of shares transferred, shall be deemed the
original cost of the transferred shares;
(b) Notwithstanding the provisions of subparagraph (a), if the
transferor and the merged company were associated
parties immediately before the exchange of shares, then
the Assessing Officer may prescribe
(1) that the consideration, as said in subsection (c)(2),
be the original cost of the transferred shares, and
that the day of sale of the allocated shares to the
transferor, as determined, be deemed the day of their
acquisition, even if the merged company sold the
transferred shares before the day of the sale;
(2) that if the allocated shares were sold on several
dates the total consideration for the sale of all the
allocated shares shall be the original cost of the
transferred shares, and the last day of sale
determined for any of the allocated shares shall be
the day of acquisition of the transferred shares, even
if the merged company sold the transferred shares
before the said last day of sale.
(e) For the purposes of section 102(c), an exchange of shares shall not be
deemed a sale of the transferred shares; the Director may, in rules,
prescribe special provisions on the applicability of some or all of the
provisions of this section, mutatis mutandis.
(f) The advance said in subsection (b)(1)(c) shall be adjusted from the
date of payment to the day of sale, and a tax credit shall be allowed for 171
it in proportion to the number of allocated shares, which were sold by
the transferor.
(g) (1) The trustee shall give the Assessing Officer written notice when
the postponement period ends;
(2) at the time of the sale the trustee shall deduct tax at the rate said
in section 91(a), (b) or (b1), as the case may be, from the
consideration, or at a lower rate, as the Assessing Officer shall
prescribe, and he shall transmit it to the Assessing Officer within
seven days.
(h) If it turns out that particulars delivered to the Assessing Officer were not
correct or are substantively incomplete, or if it turns out that substantive
particulars specified in the application to the Director do not comply with
the conditions prescribed in subsection (b)(1), then the Assessing
Officer may at his discretion determine that the consideration
calculated under this section or the market value of the transferred
shares on the day of the exchange of shares whichever is greater
constitutes the consideration received by the transferor for the
transferred shares; the Assessing Officer shall make the necessary
adjustments in respect of the original cost and the day of acquisition of
the transferred shares that are held by the merged company.