Filing Responsibility. (a) New Diamond shall prepare and file, or cause to be prepared and filed, when due: (1) all United States consolidated federal Income Tax Returns for the Affiliated Group or the affiliated group of which SV is the common parent, (2) any Tax Return (whether filed on a consolidated, combined, unitary, separate or other basis) of, or which includes, New Diamond or any other New Diamond Entity, and (3) any Income Tax Return of any Retained Entity for any Pre-Closing Period or a Straddle Period. (b) Onyx, its Designated Affiliates or the Company shall, except to the extent that filing such Tax Returns are the responsibility of New Diamond under Section 4.2(a), prepare and file, or cause to be prepared and filed, all Tax Returns with respect to each Retained Entity. (c) The parties agree to prepare and file, or cause to be prepared and filed, all Pre-Closing Period Tax Returns of the Company and its Subsidiaries in a manner consistent with past practices of the Company and its Subsidiaries, except as otherwise required by Law or a Determination. (d) In the case of any Straddle Period Income Tax Return of a Retained Entity or Non-Income Tax Return of a New Diamond Entity or a Retained Entity, in each case, on which are reportable Taxes for which both SV and New Diamond, on the one hand, and Onyx and the Company, on the other hand, are responsible under Section 4.1 (or any Non-Income Tax Return of a Retained Entity on which are reportable only Taxes that are the responsibility of New Diamond and SV under Section 4.1(a) or any Non-Income Tax Return of a New Diamond Entity on which are reportable only Taxes that are the responsibility of Onyx and the Company under Section 4.1(b)), the party that is responsible for preparing such Tax Return under this Section 4.2 (the “Return Preparer”) shall furnish such Tax Return required to be filed by the Return Preparer (together with making available any associated workpapers prepared in connection with such Tax Return) to the other party (the “Affected Party”) for its review and approval (which approval shall not be unreasonably delayed or withheld) at least 30 days prior to the due date for filing such Tax Return (taking into account valid extensions) and (y) the Affected Party shall provide any good faith comments it may have on such Return to the Return Preparer within 15 days of the Affected Party’s receipt of such draft Tax Return from the Return Preparer (such comments to be limited to confirming that the Tax Return is consistent with past practice as set forth in Section 4.2(c) and with the Tax treatments specified in this Separation Agreement); provided, however, that in the event that such Tax Return is required to be filed (taking into account valid extensions) within four (4) months after the Closing Date, then such time periods shall be reasonably reduced and the parties shall act expeditiously so that such Tax Return may be filed on a timely basis; provided, further, however, that to the extent that the Return Preparer does not agree with the Affected Party’s comments, the Return Preparer and the Affected Party shall endeavor in good faith to resolve such disagreement. In the event that the Return Preparer and the Affected Party are unable to resolve such disagreement, and to the extent that the Affected Party objects that the Return Preparer has not prepared the Tax Return in question in accordance with past practices as set forth in Section 4.2(c) or consistent with the Tax treatments specified in this Separation Agreement, the Accountant shall resolve such dispute in accordance with past practices as set forth in Section 4.2(c) and consistent with the Tax treatments specified in this Separation Agreement. In such case, the Return Preparer and the Affected Party shall each bear one-half (50%) of the fees and expenses attributable to the Accountant’s resolution of such dispute. Any Tax Return that is furnished to an Affected Party pursuant to this Section 4.2(d) shall be accompanied by a statement setting forth the portion of the Tax due in connection with filing such Tax Return that is allocable to the Affected Party pursuant to Section 4.1, which statement will specify in reasonable detail the calculation of the portion of such Tax so allocable. The Affected Party shall pay to the Return Preparer the portion of such Tax so allocable no later than one Business Day prior to the date such Tax Return is to be filed.
Appears in 3 contracts
Samples: Purchase and Separation Agreement (New Aloha CORP), Purchase and Separation Agreement (Supervalu Inc), Purchase and Separation Agreement (Albertsons Inc /De/)
Filing Responsibility. (a) New Diamond Parent shall prepare and file, or cause to be prepared and filed, when due: (1i) all United States consolidated federal Income Tax Returns for the Affiliated Group or the any affiliated group of which SV Parent is the common parent, (2ii) any Tax Return (whether filed on a consolidated, combined, unitary, separate or other basis) of, or which includes, New Diamond includes Parent or any other New Diamond Entitymember of the Seller Group, (iii) all Combined Tax Returns, which shall include the QNX Entities to the extent required under Applicable Law or consistent with past practice, and (3iv) any Income other Tax Return of any Retained Entity of the QNX Entities required to be filed on or prior to the Closing Date. Parent shall pay all Taxes due in respect of the Tax Returns described in this Section 6.3(a), subject to Parent’s right of indemnification or reimbursement for any Pre-Closing Period or a Straddle Periodsuch Taxes pursuant to Section 6.3(b).
(b) Onyx, its Designated Affiliates or the Company The Buyers shall, except to the extent that filing such Tax Returns are is the responsibility of New Diamond Parent under Section 4.2(a6.3(a), prepare and file, or cause to be prepared and filed, all Tax Returns with respect to each Retained Entity.
(c) The parties agree of the QNX Entities, provided, however, that with respect to prepare any Straddle Period Tax Returns and file, or cause to be prepared and filed, all any other Tax Returns of any of the QNX Entities that includes the Pre-Closing Period Tax Returns of the Company and its Subsidiaries in a manner consistent with past practices of the Company and its Subsidiaries, except as otherwise required by Law or a Determination.
(d) In the case of any Straddle Period Income Tax Return of a Retained Entity or Non-Income Tax Return of a New Diamond Entity or a Retained Entity, in each case, on which are reportable Taxes for which both SV and New Diamond, on the one hand, and Onyx and the Company, on the other hand, are responsible under Section 4.1 (or any Non-Income Tax Return of Buyers have a Retained Entity on which are reportable only Taxes that are the filing responsibility of New Diamond and SV under Section 4.1(a) or any Non-Income Tax Return of a New Diamond Entity on which are reportable only Taxes that are the responsibility of Onyx and the Company under Section 4.1(b)), the party that is responsible for preparing such Tax Return under pursuant to this Section 4.2 6.3(b) (the a “Return PreparerSpecified Section 6.3(b) Return”): (i) Buyers shall furnish such Tax Return required Returns to be filed by the Return Preparer (together with making available any associated workpapers prepared in connection with such Tax Return) to the other party (the “Affected Party”) Parent for its Parent’s review and approval (which approval shall not be unreasonably delayed or withheld) comment at least 30 thirty (30) days prior to the due date for filing such Tax Return, including extensions (the “Tax Return Due Date”), (taking into account valid extensionsii) Buyer shall not file such Tax Returns without the prior written consent of Parent, which consent shall not be unreasonably withheld, conditioned or delayed, and (yiii) the Affected Party such Tax Returns shall provide any good faith comments it may have on such Return to the Return Preparer within 15 days of the Affected Party’s receipt of such draft Tax Return from the Return Preparer (such comments to be limited to confirming that the Tax Return is prepared and filed in a manner consistent with past practice for the entity to which each such Tax Return relates, unless Buyers deliver to Parent, or Parent delivers to Buyers, as set forth in Section 4.2(c) and with the Tax treatments specified in this Separation Agreement); case may be, no later than the Opinion Due Date an Impermissible Past Practice Opinion, as defined below, provided, however, that that, in the event that case of an Impermissible Past Practice, as defined below, if there is more than one alternative practice permitted under Applicable Law, Parent shall determine which such alternative practice shall apply to the preparation and filing of such Tax Return. With respect to each Specified Section 6.3(b) Return, no later than fifteen (15) days prior to the Tax Return Due Date, Parent shall provide to Buyers comments on such Tax Return is required to be filed and Buyers shall incorporate all reasonable comments of Parent (taking into account valid extensions) within four (4) months after the Closing Date, then such time periods shall be reasonably reduced and the parties shall act expeditiously so that such Tax Return may be filed on a timely basis; provided, further, however, provided that to the extent that the Return Preparer does not agree a past practice exists with the Affected Party’s comments, the Return Preparer and the Affected Party shall endeavor in good faith to resolve such disagreement. In the event that the Return Preparer and the Affected Party are unable to resolve such disagreement, and respect to the extent that the Affected Party objects that the Return Preparer has not prepared the Tax Return in question in accordance with past practices as set forth in Section 4.2(c) or consistent with the Tax treatments specified in this Separation Agreement, the Accountant shall resolve such dispute in accordance with past practices as set forth in Section 4.2(c) and consistent with the Tax treatments specified in this Separation Agreement. In such case, the Return Preparer and the Affected Party shall each bear one-half (50%) aspect of the fees preparation and expenses attributable to the Accountant’s resolution filing of such dispute. Any Tax Return that is furnished to an Affected Party pursuant to this Section 4.2(d) shall be accompanied by a statement setting forth the portion of the Tax due in connection with filing such Tax Return that is allocable subject to the Affected Party pursuant Parent’s comments, such comments are consistent with past practice, unless otherwise required by an intervening change in Applicable Laws, or unless Parent delivers to Section 4.1, which statement will specify in reasonable detail the calculation of the portion of such Tax so allocable. The Affected Party shall pay to the Return Preparer the portion of such Tax so allocable Buyers no later than one the Opinion Due Date, an Impermissible Past Practice Opinion). With respect to any Specified Section 6.3(b) Return, Parent shall pay, or cause to be paid, to the Buyers or its Affiliates (including the QNX Entities), as applicable, the amount for which Parent is responsible under Section 6.2(a) no later than two (2) Business Day Days prior to the date such Tax Return Due Date, provided that Buyers have complied with their obligations under this Section 6.3(b). For purposes of this Section 6.3(b), an Impermissible Past Practice Opinion shall mean an opinion, reasonably acceptable to the party receiving such opinion from the Delivering Party, of a nationally recognized accounting firm at no less than a “should” level standard to the effect that the past practice from which the party delivering such opinion (the “Delivering Party”) seeks to diverge (an “Impermissible Past Practice”) is not permitted under the requirements of Applicable Law. The Opinion Due Date shall mean, if a Buyer is the Delivering Party, no later than thirty (30) days prior to be filedthe Tax Return Due Date, and if Parent is the Delivering Party, no later than fifteen (15) days prior to the Tax Return Due Date.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Harman International Industries Inc /De/)
Filing Responsibility. (a) New Diamond Chevron shall prepare and file, or shall cause to be prepared and filed, when due: (1) all United States consolidated federal Income Tax Returns for the Affiliated Group or the affiliated group of which SV is the common parent, (2) any Tax Return (whether filed on a consolidated, combined, unitary, separate or other basis) of, or which includes, New Diamond or any other New Diamond Entity, and (3) for any Income Tax Return (which this provision only shall include foreign income taxes) that includes a member of any Retained Entity for any Pre-Closing Period or a Straddle Period.
(b) Onyx, its Designated Affiliates or the Company shall, except to the extent that filing such Tax Returns are the responsibility of New Diamond under Section 4.2(a), Chevron Group. Phillips shall prepare and filefilx, or xx xxall cause to be prepared and filed, any Tax Return for any Income Tax (which this provision only shall include foreign income taxes) that includes a member of the Phillips Group. The Company shall file or cause to be filed all Tax Returns with respect to each Retained Entity.
the Company or any of its Subsidiaries for which neither Chevron nor Phillips has filing responsibixxxx xxxsuant to (ca) or (b) above. The parties agree to prepare Company shall not, and fileshall cause its Subsidiaries not to, or cause to be prepared and filed, all file any amended Tax Return for any Pre-Closing Period Period, without the prior written consent of Chevron, in the case of any such Tax Return that could affect the indemnification obligations of Chevron under this Annex or any Taxes for which Chevron is otherwise responsible, or Phillips, in the case of any xxxx Xxx Return that could affect the indemnification obligations of Phillips under this Annex or axx Xxxxx for which Phillips is otherwise responsixxx. Cooperation and Exchange of Information. Chevron, Phillips and the Company shaxx (xxx each shall cause its respective Subsidiaries to) cooperate with one another with respect to Tax matters. As soon as practicable, but in any event within 30 days after the request of Chevron, Phillips or the Company, from xxx xxxer the Closing Date, the Company shall deliver to Chevron or Phillips, respectively, and Xxxxxxx or Phillips, as the case may be, xxxxx xeliver to the Company, such information and data and make available such employees as Chevron, Phillips or the Company may rexxxxxxxx request in order to enable Chevron, Phillips or the Company to coxxxxxx and file all Tax Returns of which they each may be required to file with respect to the Company and its Subsidiaries in a manner consistent with past practices and the Contributed assets and liabilities or to respond to Tax Proceedings or other inquiries relating to Taxes by any Governmental Entities and to otherwise enable Chevron, Phillips and the Company each xx xxxxxfy their respective accounting, Tax and other legitimate business requirements. Such cooperation and information shall include provision of powers of attorney to Chevron, Phillips or the Company relatixx xx Xxx matters (e.g., for the purpose of signing Returns and defending Tax Proceedings) and promptly forwarding copies of appropriate notices and forms or other communications received from or sent to any Governmental Entity that relate to the Company and its SubsidiariesSubsidiaries and the Contributed assets and liabilities, except as otherwise required and providing copies of all relevant Tax Returns, together with accompanying schedules and related workpapers, documents relating to rulings or other determinations by Law any Governmental Entities and records concerning the ownership and tax basis of property, which Chevron, Phillips or the Company and itx Xxxxxxiaries may possess. Chevron, Phillips and the Company shall (xxx xxch shall cause its respective Subsidiaries to) make its employees and facilities available on a Determination.
(d) In the case mutually convenient basis to provide explanation of any Straddle Period documents or information provided hereunder. Notwithstanding any other provision, (i) Chevron shall not be required to provide any Person with any consolidated, combined, affiliated or unitary Income Tax Return or copy thereof that includes Chevron or any other member of a Retained Entity the Chevron Group and (ii) Phillips shall not be requirex xx xxovide any Person with any consolidated, combined, affiliated or Non-unitary Income Tax Return of a New Diamond Entity or a Retained Entity, in each case, on which are reportable Taxes for which both SV and New Diamond, on the one hand, and Onyx and the Company, on the other hand, are responsible under Section 4.1 (copy thereof that includes Phillips or any Non-Income Tax Return of a Retained Entity on which are reportable only Taxes that are the responsibility of New Diamond and SV under Section 4.1(a) or any Non-Income Tax Return of a New Diamond Entity on which are reportable only Taxes that are the responsibility of Onyx and the Company under Section 4.1(b)), the party that is responsible for preparing such Tax Return under this Section 4.2 (the “Return Preparer”) shall furnish such Tax Return required to be filed by the Return Preparer (together with making available any associated workpapers prepared in connection with such Tax Return) to the other party (the “Affected Party”) for its review and approval (which approval shall not be unreasonably delayed or withheld) at least 30 days prior to the due date for filing such Tax Return (taking into account valid extensions) and (y) the Affected Party shall provide any good faith comments it may have on such Return to the Return Preparer within 15 days of the Affected Party’s receipt of such draft Tax Return from the Return Preparer (such comments to be limited to confirming that the Tax Return is consistent with past practice as set forth in Section 4.2(c) and with the Tax treatments specified in this Separation Agreement); provided, however, that in the event that such Tax Return is required to be filed (taking into account valid extensions) within four (4) months after the Closing Date, then such time periods shall be reasonably reduced and the parties shall act expeditiously so that such Tax Return may be filed on a timely basis; provided, further, however, that to the extent that the Return Preparer does not agree with the Affected Party’s comments, the Return Preparer and the Affected Party shall endeavor in good faith to resolve such disagreementmember ox xxx Xxillips Group. In the event that the Return Preparer and the Affected Party are unable to resolve such disagreement, and to the extent that the Affected Party objects that the Return Preparer has not prepared the Tax Return in question in accordance with past practices as set forth in Section 4.2(c) or consistent with the Tax treatments specified in this Separation Agreement, the Accountant shall resolve such dispute in accordance with past practices as set forth in Section 4.2(c) and consistent with the Tax treatments specified in this Separation Agreement. In such case, the Return Preparer and the Affected Party shall each bear one-half (50%) of the fees and expenses attributable to the Accountant’s resolution of such dispute. Any Tax Return that is furnished to an Affected Party pursuant to this Section 4.2(d) shall be accompanied by a statement setting forth the portion of the Tax due in connection with filing such Tax Return that is allocable to the Affected Party pursuant to Section 4.1, which statement will specify in reasonable detail the calculation of the portion of such Tax so allocable. The Affected Party shall pay to the Return Preparer the portion of such Tax so allocable no later than one Business Day prior to the date such Tax Return is to be filed.REFUNDS
Appears in 1 contract
Filing Responsibility. (a) New Diamond Duke shall prepare and file, or shall cause the DEFS Subsidiaries, as the case may be, to prepare and file, with respect to the DEFS Subsidiaries, all Tax Returns with respect to taxable periods ending on or prior to the Closing Date. Duke shall prepare and file, or shall cause to be prepared and filed, when due: (1) all United States consolidated federal Income Tax Returns for the Affiliated Group or the affiliated group of which SV is the common parent, (2) any Tax Return (whether filed on a consolidated, combined, unitary, separate affiliated or other basis) of, or which includes, New Diamond unitary Tax Return that includes Duke or any other New Diamond Entity, and member of the Duke Group (3) any Income whether or not such Tax Return of also includes the Company or any Retained Entity Subsidiary thereof) and any consolidated, combined, affiliated or unitary Tax Return that includes any DEFS Subsidiary for any Pre-Closing Period Period. All such Tax Returns (other than any consolidated, combined, affiliated or unitary Tax Returns) shall be filed in a Straddle Periodmanner that is consistent with past practice.
(b) Onyx, its Designated Affiliates or the Company shall, except to the extent that filing such Tax Returns are the responsibility of New Diamond under Section 4.2(a), Phillips shall prepare and file, or shall cause the PGC Subsidiaries, xx xxx case may be, to be prepared prepare and filedfile, with respect to the PGC Subsidiaries, all Tax Returns with respect to each Retained Entitytaxable periods ending on or prior to the Closing Date. Phillips shall prepare and file, or shall cause to be prepared and fixxx, xxx consolidated, combined, affiliated or unitary Tax Return that includes Phillips or any member of the Phillips Group (whether or not such Tax Xxxxxx also includes the Compxxx xx xny Subsidiary thereof) and any consolidated, combined, affiliated or unitary Tax Return that includes any PGC Subsidiary for any Pre-Closing Period. All such Tax Returns (other than any consolidated, combined, affiliated or unitary Tax Returns) shall be filed in a manner that is consistent with past practice.
(c) The parties agree to prepare and file, Company shall file or cause to be prepared and filed, filed all Tax Returns with respect to the Company or any of its Subsidiaries for which neither Duke nor Phillips has filing responsibility pursuant to (a) or (b) above. Any xxxx Xxx Returns that include any Pre-Closing Period Tax Returns of the Company and its Subsidiaries shall be filed in a manner that is consistent with past practices practice of the applicable Subsidiary included in such Tax Return. Any Tax Returns for which the Company has filing responsibility under this clause (c) shall be filed consistent with Annex F of the Governance Agreement to the extent that such Annex F is applicable to such Tax Returns. The Company shall not, and shall cause its SubsidiariesSubsidiaries not to, except as file any amended Tax Return for any Pre-Closing Period, without the prior written consent of Duke, in the case of any such Tax Return that could affect the indemnification obligations of Duke under this Annex or any Taxes for which Duke is otherwise required by Law responsible, or a DeterminationPhillips, in the case of any such Tax Return that could affect the inxxxxxxxxation obligations of Phillips under this Annex or any Taxes for which Phillips is otherwisx xxxxxxsible.
(d) In Upon the case filing of xxx Xxx Return with respect to any Straddle Period Income Pre-Closing Period, if the amount of Tax Return of a Retained Entity or Non-Income Tax Return of a New Diamond Entity or a Retained Entity, in each case, shown as due on which are reportable Taxes for which both SV and New Diamond, on the one hand, and Onyx and the Company, on the other hand, are responsible under Section 4.1 (or any Non-Income Tax Return of a Retained Entity on which are reportable only Taxes that are the responsibility of New Diamond and SV under Section 4.1(a) or any Non-Income Tax Return of a New Diamond Entity on which are reportable only Taxes that are the responsibility of Onyx and the Company under Section 4.1(b)), the party that is responsible for preparing such Tax Return under this Section 4.2 (the “Return Preparer”) shall furnish such Tax Return required to be filed by the Return Preparer (together with making available any associated workpapers prepared in connection with such Tax Return) to the other party (the “Affected Party”) for its review and approval (which approval shall not be unreasonably delayed or withheld) at least 30 days prior to the due date for filing such Tax Return (taking into account valid extensions) and (y) the Affected Party shall provide any good faith comments it may have on such Return to the Return Preparer within 15 days of the Affected Party’s receipt of such draft Tax Return from the Return Preparer (such comments to be limited to confirming that the Tax Return is consistent with past practice as set forth in Section 4.2(c) and with the Tax treatments specified in this Separation Agreement); provided, however, that in the event that such Tax Return is required to be filed (taking into account valid extensions) within four (4) months after less than the Closing Date, then such time periods shall be reasonably reduced and the parties shall act expeditiously so that such Tax Return may be filed on amount accrued therefor as a timely basis; provided, further, however, that liability to the extent that such accrual was taken into account in determining Phillips' Actual Net Working Capital or Duke's Actual Net Working Capxxxx xxxsuant to Section 3.3 of the Return Preparer does not agree with Contribution Agreement, as the Affected Party’s commentscase may be, the Return Preparer and Company shall distribute to Phillips or Duke, as the Affected Party shall endeavor in good faith to resolve such disagreement. In the event that the Return Preparer and the Affected Party are unable to resolve such disagreementcase may be, and an amount of cash equal to the extent that xxxxxx xf suxx xccrual over the Affected Party objects that the Return Preparer has not prepared the Tax Return in question in accordance with past practices as set forth in Section 4.2(c) or consistent with the Tax treatments specified in this Separation Agreement, the Accountant shall resolve such dispute in accordance with past practices as set forth in Section 4.2(c) and consistent with the Tax treatments specified in this Separation Agreement. In such case, the Return Preparer and the Affected Party shall each bear one-half (50%) amount of the fees and expenses attributable to the Accountant’s resolution of such dispute. Any Tax Return that is furnished to an Affected Party pursuant to this Section 4.2(d) shall be accompanied by a statement setting forth the portion of the Tax due in connection with filing such Tax Return that is allocable to the Affected Party pursuant to Section 4.1, which statement will specify in reasonable detail the calculation of the portion of such Tax so allocable. The Affected Party shall pay to the Return Preparer the portion of such Tax so allocable no later than one Business Day prior to the date such Tax Return is to be filedshown.
Appears in 1 contract
Filing Responsibility. (a) New Diamond shall prepare and file, or cause to be prepared and filed, when due: (1) all United States consolidated federal Income Tax Returns for the Affiliated Group or the affiliated group of which SV is the common parent, (2) any Tax Return (whether filed on a consolidated, combined, unitary, separate or other basis) of, or which includes, New Diamond or any other New Diamond Entity, and (3) any Income Tax Return of any Retained Entity for any Pre-Closing Period or a Straddle Period.
(b) Onyx, its Designated Affiliates or the Company shall, except to the extent that filing such Tax Returns are the responsibility of New Diamond under Section 4.2(a), prepare and file, or cause to be prepared and filed, all Tax Returns with respect to each Retained Entity.
(c) The parties agree to prepare and file, or cause to be prepared and filed, all Pre-Closing Period Tax Returns of the Company and its Subsidiaries in a manner consistent with past practices of the Company and its Subsidiaries, except as otherwise required by Law or a Determination.
(d) In the case of any Straddle Period Income Tax Return of a Retained Entity or Non-Income Tax Return of a New Diamond Entity or a Retained Entity, in each case, on which are reportable Taxes for which both SV and New Diamond, on the one hand, and Onyx and the Company, on the other hand, are responsible under Section 4.1 (or any Non-Income Tax Return of a Retained Entity on which are reportable only Taxes that are the responsibility of New Diamond and SV under Section 4.1(a) or any Non-Income Tax Return of a New Diamond Entity on which are reportable only Taxes that are the responsibility of Onyx and the Company under Section 4.1(b)), the party that is responsible for preparing such Tax Return under this Section 4.2 (the “"Return Preparer”") shall furnish such Tax Return required to be filed by the Return Preparer (together with making available any associated workpapers prepared in connection with such Tax Return) to the other party (the “"Affected Party”") for its review and approval (which approval shall not be unreasonably delayed or withheld) at least 30 days prior to the due date for filing such Tax Return (taking into account valid extensions) and (y) the Affected Party shall provide any good faith comments it may have on such Return to the Return Preparer within 15 days of the Affected Party’s 's receipt of such draft Tax Return from the Return Preparer (such comments to be limited to confirming that the Tax Return is consistent with past practice as set forth in Section 4.2(c) and with the Tax treatments specified in this Separation Agreement); provided, however, that in the event that such Tax Return is required to be filed (taking into account valid extensions) within four (4) months after the Closing Date, then such time periods shall be reasonably reduced and the parties shall act expeditiously so that such Tax Return may be filed on a timely basis; provided, further, however, that to the extent that the Return Preparer does not agree with the Affected Party’s 's comments, the Return Preparer and the Affected Party shall endeavor in good faith to resolve such disagreement. In the event that the Return Preparer and the Affected Party are unable to resolve such disagreement, and to the extent that the Affected Party objects that the Return Preparer has not prepared the Tax Return in question in accordance with past practices as set forth in Section 4.2(c) or consistent with the Tax treatments specified in this Separation Agreement, the Accountant shall resolve such dispute in accordance with past practices as set forth in Section 4.2(c) and consistent with the Tax treatments specified in this Separation Agreement. In such case, the Return Preparer and the Affected Party shall each bear one-half (50%) of the fees and expenses attributable to the Accountant’s 's resolution of such dispute. Any Tax Return that is furnished to an Affected Party pursuant to this Section 4.2(d) shall be accompanied by a statement setting forth the portion of the Tax due in connection with filing such Tax Return that is allocable to the Affected Party pursuant to Section 4.1, which statement will specify in reasonable detail the calculation of the portion of such Tax so allocable. The Affected Party shall pay to the Return Preparer the portion of such Tax so allocable no later than one Business Day prior to the date such Tax Return is to be filed.
Appears in 1 contract
Samples: Purchase and Separation Agreement (Albertsons Inc /De/)
Filing Responsibility. (a) New Diamond Circuit City shall prepare and file, or cause to be prepared and filed, when due: :
(1i) all United States consolidated federal Income consolidated, combined, affiliated or unitary Tax Returns for of the Circuit City Affiliated Group or the affiliated group of which SV is the common parent, Group,
(2ii) any Tax Return (whether filed on a consolidated, combined, unitary, separate or other basis) of, or which includes, New Diamond Circuit City or any other New Diamond Entitymember of the Circuit City Group, and whether combined, consolidated, affiliated, unitary or otherwise,
(3iii) any Income Tax Return relating to the Credit Card Business, the Purchased Assets or the Trust required to be filed prior to the Closing Date, and
(iv) any other Tax Return of any Retained Entity or with respect to the Credit Card Business, the Purchased Assets or the Trust (or its assets) for any Pre-Closing Period Tax Period. Circuit City shall pay or a Straddle Periodcause to be paid all Taxes due and payable in respect of all such Tax Returns (subject to any indemnification obligations of Purchaser under this Article VIII).
(b) Onyx, its Designated Affiliates or the Company Purchaser shall, except to the extent that filing such Tax Returns are is the responsibility of New Diamond Circuit City under Section 4.2(a8.02(a), prepare and file, or cause to be prepared and filed, all Tax Returns with respect relating to each Retained Entity.
the Credit Card Business, the Purchased Assets and the Trust (cor its assets) The parties agree to prepare and file, for the taxable periods beginning on or cause to be prepared and filed, all Pre-after the Closing Period Tax Returns of the Company and its Subsidiaries in a manner consistent with past practices of the Company and its Subsidiaries, except as otherwise required by Law or a Determination.
(d) Date. In the case of any Straddle Period Income Tax Return of a Retained Entity or Non-Income Tax Return of a New Diamond Entity or a Retained Entity, in each case, on which are reportable Taxes for which both SV and New Diamond, on the one hand, and Onyx and the Company, on the other hand, are responsible under Section 4.1 (or any Non-Income Tax Return of a Retained Entity on which are reportable only Taxes that are the responsibility of New Diamond and SV under Section 4.1(a) or any Non-Income Tax Return of a New Diamond Entity on which are reportable only Taxes that are the responsibility of Onyx and the Company under Section 4.1(b)), the party that is responsible for preparing such Tax Return under this Section 4.2 (the “Return Preparer”) shall furnish such Tax Return required to be prepared and filed by Purchaser pursuant to this subsection for which any Taxes are the Return Preparer (together with making available any associated workpapers prepared in connection with responsibility of Circuit City, such Tax Return) Return shall be prepared and filed in a manner that is consistent with Circuit City's prior practices, if any, or in a manner to the other party (the “Affected Party”) which Circuit City has given its prior written consent, such consent not to be unreasonably withheld, and Purchaser shall deliver a draft of such Tax Return to Circuit City for its review and approval (which approval shall not be unreasonably delayed or withheld) at least 30 days thirty (30) Business Days prior to the due date for filing of such Tax Return (taking into account valid extensions) and (y) the Affected Party shall provide any good faith comments it may have on such Return to the Return Preparer within 15 days Circuit City with Purchasers' calculation, in reasonable detail, of Circuit City's share of the Affected Party’s receipt of Taxes with respect to such draft Tax Return from (determined in the Return Preparer (such comments to be limited to confirming that the Tax Return is consistent case of a Straddle Period in accordance with past practice as set forth in Section 4.2(c) and with the Tax treatments specified in this Separation Agreement8.02(c)); provided, however, that such drafts of any such Tax Return and such calculations of Circuit City's share of the Taxes with respect to such Tax Return shall be subject to Circuit City's review and approval, which approval shall not be unreasonably withheld, conditioned or delayed. If Circuit City disputes any Tax Item on such Tax Return or Purchasers' calculation of Circuit City's share of the Taxes with respect to such Tax Return, it shall notify Purchaser (by written notice within ten (10) Business Days of receipt of Purchasers' calculation) of such disputed item (or items) and the basis for its objection. Circuit City and Purchaser shall act in good faith to resolve any such dispute prior to the event that such date on which the Tax Return is required to be filed filed. If Circuit City and Purchaser cannot resolve any disputed item, the item in question shall be resolved by the Accountant in accordance with the standards set forth in this Section 8.02(b) as promptly as practicable. The fees and expenses of the Accountant shall be shared equally by Circuit City and Purchaser. In the event the disputed item cannot be resolved in accordance with this Section 8.02(b) prior to the date on which the Tax Return is required to be filed, Purchaser shall timely file such Tax Return and pay or cause to be paid to the applicable Tax authority all Taxes due and payable in respect of such Tax Return required to be prepared by Purchaser pursuant to this subsection. Upon resolution of the dispute pursuant to Section 4.04, Circuit City shall pay immediately to Purchaser its determined share of Taxes in immediately available funds.
(taking into account valid extensionsc) within four (4) months In order to apportion appropriately any Taxes relating to a Straddle Period between the portion of such Straddle Period ending before the Closing Date and the portion of such Straddle Period beginning on and after the Closing Date, then the Parties shall, to the extent permitted under applicable law, elect with the relevant Tax authority to treat for all Tax purposes the day preceding the Closing Date as the last day of a taxable period. In the case of any other Taxes for a Straddle Period for which such time periods election to close the taxable period is not permitted, the portion of such Taxes that are allocable to the portion of the Straddle Period ending before the Closing Date shall be: (i) in the case of ad valorem or similar Taxes that are imposed on a periodic basis, deemed to be reasonably reduced the amount of such Taxes for the entire period (or, in the case of such Taxes determined on an arrears basis (such as real property taxes), the amount of such Taxes for the immediately preceding period) multiplied by a fraction the numerator of which is the number of days in the Straddle Period ending before the Closing Date and the parties shall act expeditiously so denominator of which is the number of days in the entire relevant Straddle Period; and (ii) in the case of Taxes not described in (i) (such as Taxes that such Tax Return may are either (x) based upon or related to income, receipts or premiums, or (y) imposed in connection with any sale or other transfer or assignment of property (real or personal, tangible or intangible)), deemed equal to the amount that would be filed on a timely basispayable if the taxable period ended before the Closing Date; provided, further, however, that to Transfer Taxes shall be allocated between and paid by the extent that the Return Preparer does not agree with the Affected Party’s comments, the Return Preparer and the Affected Party shall endeavor in good faith to resolve such disagreement. In the event that the Return Preparer and the Affected Party are unable to resolve such disagreement, and to the extent that the Affected Party objects that the Return Preparer has not prepared the Tax Return in question parties in accordance with past practices as set forth in Section 4.2(c) or consistent with the Tax treatments specified in this Separation Agreement, the Accountant shall resolve such dispute in accordance with past practices as set forth in Section 4.2(c) and consistent with the Tax treatments specified in this Separation Agreement. In such case, the Return Preparer and the Affected Party shall each bear one-half (50%) of the fees and expenses attributable to the Accountant’s resolution of such dispute. Any Tax Return that is furnished to an Affected Party pursuant to this Section 4.2(d) shall be accompanied by a statement setting forth the portion of the Tax due in connection with filing such Tax Return that is allocable to the Affected Party pursuant to Section 4.1, which statement will specify in reasonable detail the calculation of the portion of such Tax so allocable. The Affected Party shall pay to the Return Preparer the portion of such Tax so allocable no later than one Business Day prior to the date such Tax Return is to be filed8.05.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Circuit City Stores Inc)
Filing Responsibility. (a) New Diamond shall prepare and file, or cause to be prepared and filed, when due: (1) all United States consolidated federal Income Tax Returns for the Affiliated Group or the affiliated group of which SV is the common parent, (2) any Tax Return (whether filed on a consolidated, combined, unitary, separate or other basis) of, or which includes, New Diamond or any other New Diamond Entity, and (3) any Income Tax Return of any Retained Entity for any Pre-Closing Period or a Straddle Period.
(b) Onyx, its Designated Affiliates or the Company Liberty shall, except to with the extent that filing such Tax Returns are the responsibility of New Diamond under Section 4.2(a), prepare reasonable cooperation and file, or cause to be prepared and filed, all Tax Returns with respect to each Retained Entity.
(c) The parties agree to prepare and file, or cause to be prepared and filed, all Pre-Closing Period Tax Returns of the Company and its Subsidiaries in a manner consistent with past practices assistance of the Company and its Subsidiaries, except as otherwise required by Law prepare and file or a Determination.
shall cause VGI to prepare and file, (di) In the case all Tax Returns with respect to Taxes of any Straddle Period Income Tax Return of a Retained Entity or Non-Income Tax Return of a New Diamond Entity or a Retained Entity, in each case, on which are reportable Taxes for which both SV and New Diamond, on the one hand, and Onyx and the Company, on the other hand, are responsible under Section 4.1 (or any Non-Income Tax Return of a Retained Entity on which are reportable only Taxes that are the responsibility of New Diamond and SV under Section 4.1(a) or any Non-Income Tax Return of a New Diamond Entity on which are reportable only Taxes that are the responsibility of Onyx and the Company under Section 4.1(b)), the party that is responsible for preparing such Tax Return under this Section 4.2 (the “Return Preparer”) shall furnish such Tax Return required to be filed by the Return Preparer (together with making available any associated workpapers prepared in connection with such Tax Return) to the other party (the “Affected Party”) for its review and approval (which approval shall not be unreasonably delayed or withheld) at least 30 days prior to the due date for filing such Tax Return (taking into account valid extensions) and (y) the Affected Party shall provide any good faith comments it may have on such Return to the Return Preparer within 15 days of the Affected Party’s receipt of such draft Tax Return from the Return Preparer (such comments to be limited to confirming that the Tax Return is consistent with past practice as set forth in Section 4.2(c) and with the Tax treatments specified in this Separation Agreement); provided, however, that in the event that such Tax Return is VGI required to be filed (taking into account valid extensions) within four (4) months after prior to the Closing DateDate and (ii) any consolidated, then such time periods shall be reasonably reduced and the parties shall act expeditiously so that such combined or unitary Tax Return may be filed on a timely basis; providedReturns, further, howeverfor any taxable period, that to the extent that the Return Preparer does not agree with the Affected Party’s comments, the Return Preparer and the Affected Party shall endeavor in good faith to resolve such disagreement. In the event that the Return Preparer and the Affected Party are unable to resolve such disagreement, and to the extent that the Affected Party objects that the Return Preparer has not prepared the Tax Return in question in accordance with past practices as set forth in Section 4.2(c) or consistent with the Tax treatments specified in this Separation Agreement, the Accountant shall resolve such dispute in accordance with past practices as set forth in Section 4.2(c) and consistent with the Tax treatments specified in this Separation Agreement. In such case, the Return Preparer and the Affected Party shall each bear one-half (50%) of the fees and expenses attributable to the Accountant’s resolution of such disputeincludes Liberty. Any Tax Return that is furnished Taxes required to an Affected Party pursuant to this Section 4.2(d) shall be accompanied by a statement setting forth the portion of the Tax due paid in connection with filing such Tax Return that is allocable Returns shall be paid by the applicable taxpayer with respect to such Taxes.
(b) HEI shall, with the Affected Party pursuant to Section 4.1, which statement will specify in reasonable detail the calculation cooperation and assistance of the portion Company and its Subsidiaries, prepare and file or shall cause Crown to prepare and file, (i) all Tax Returns with respect to Taxes of such Tax so allocable. The Affected Party shall pay Crown required to the Return Preparer the portion of such Tax so allocable no later than one Business Day be filed (taking into account valid extensions) prior to the date Closing Date and (ii) any consolidated, combined or unitary Tax Returns, for any taxable period, that include HEI or any other member of the Hallmark Group. Any Taxes required to be paid in connection with such Tax Return is Returns shall be paid by the applicable taxpayer with respect to such Taxes.
(c) Any Income Tax Returns of Odyssey shall be filed by the Tax matters partner in Odyssey.
(d) The Company shall file or cause to be filedfiled all other Tax Returns with respect to the Company, VGI, Crown or Odyssey or their respective Subsidiaries. The Company shall cause the filing of an election specified in Regulation Section 1.1502-21(b)(3)(ii)(B) with respect to Crown and VGI (and any comparable election under state or local Income Tax law).
(e) The Company shall, and shall cause its Subsidiaries to, provide the information relating to the Tax Items of the Company and its Subsidiaries that is necessary or reasonably useful for the Hallmark Group or the Liberty Group to satisfy its obligations with respect to any Tax Return for 1999 or 2000.
(f) Liberty, HEI and the Company shall, and shall cause their respective Subsidiaries (together, the "Tax Cooperative Parties"), to cooperate with one another with respect to Tax matters. Such cooperation shall include promptly forwarding copies of the relevant portions of notices and forms or other communications received from or sent to any Governmental Entity that pertain to any other Tax Cooperative Party or any Tax that is subject to indemnification under this Article 10 to such Tax Cooperative Party, and, upon the request of a Tax Cooperative Party, making available knowledgeable employees to such Tax Cooperative Party and providing information and data reasonably requested by such Tax Cooperative Party (it being agreed and understood that neither HEI nor Liberty nor any of their Subsidiaries shall be required to provide any information or data, other than information and data relating solely to the Company or any of its Subsidiaries).
(g) Liberty shall be entitled to control in all respects any Tax Proceeding regarding a consolidated, combined or unitary Tax Return, for any taxable period, that includes Liberty or any other member of the Liberty Group. Except as otherwise provided in the Tax Sharing Agreement, HEI shall be entitled to control in all respects any Tax Proceeding regarding a consolidated, combined or unitary Tax Return, for any taxable period, that includes HEI or any other member of the Hallmark Group.
Appears in 1 contract
