Taxes and Tax Matters. (a) The Company and each Subsidiary has: (i) paid or caused to be paid all Taxes required to be paid by it (including but not limited to any Taxes shown due on any Tax Return); and (ii) filed or caused to be filed all Tax Returns required to be filed by it with the appropriate taxing authority in all jurisdictions in which such Tax Returns are required to be filed (and all Tax Returns filed on behalf of the Company were true, complete and correct). (b) Except as set forth in Schedule 5.15(b), (i) neither the Company nor any Subsidiary has been notified by the IRS or any other taxing authority that any issues have been raised by the IRS or any other taxing authority in connection with (A) any Taxes owed by the Company or any Subsidiary or (B) any Tax Return filed by or on behalf of the Company or any Subsidiary; (ii) there are no pending Tax audits and no waivers of statutes of limitations have been given or requested with respect to the Company or any Subsidiary; (iii) there are no Encumbrances on the assets of the Company or any Subsidiary with respect to Taxes, except for Encumbrances for current Taxes not yet due and payable for which adequate reserves have been provided for in the latest balance sheet of the Company; (iv) no unresolved deficiencies or additions to Taxes have been proposed, asserted, or assessed against the Company or any Subsidiary and no claim has been made during the past five years by any Governmental Body in a jurisdiction where neither the Company nor any of its Subsidiaries filed Tax Returns or paid Taxes that it is or may be subject to any taxation by that jurisdiction; (v) the charges, accruals and reserves for Taxes (rather than any reserve for deferred Taxes established to reflect timing difference between book and Tax income), reflected in the most recent balance sheet of the Company (rather than any notes thereto) are adequate to cover all unpaid Taxes of the Company and the Subsidiaries. All reserves for Taxes as adjusted for operations and transactions and the passage of time through the Effective Time in accordance with past custom and practice of the Company and the Subsidiaries are adequate to cover all unpaid Taxes of the Company and the Subsidiaries accruing through the Effective Time; (vi) the Company and each Subsidiary has complied with all applicable requirements relating to the collection or withholding of Taxes (such as sales Taxes or withholding of Taxes from the wages of employees); (vii) neither the Company nor any Subsidiary has any Liability in respect of any tax sharing agreement with any Person; (viii) neither the Company nor any Subsidiary has agreed to (nor has any other Person agreed to on its behalf), and neither the Company nor any Subsidiary is required to, make any adjustments or changes, to its accounting methods pursuant to Section 481 of the Code, and the IRS has not proposed any such adjustments or changes in the accounting methods of such Persons; (ix) neither the Company nor any Subsidiary will be required to include in income, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (A) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of state, local or foreign income Tax Law), (B) open transaction or installment disposition made on or prior to the Closing Date, or (C) prepaid amount received on or prior to the Closing Date;
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Royal Gold Inc), Merger Agreement (Battle Mountain Gold Exploration Corp.), Agreement and Plan of Merger (Battle Mountain Gold Exploration Corp.)
Taxes and Tax Matters. Except as provided in Section 4.8 of the American Disclosure Schedule:
(a) The Company American has filed completely and each Subsidiary has:
(i) paid or caused to be paid correctly in all Taxes required to be paid by it (including but not limited to any Taxes shown due on any Tax Return); and
(ii) filed or caused to be filed material respects all Tax Returns which are required by all Applicable Laws to be filed by it with it, and has paid, or made adequate provision for the appropriate taxing authority payment of, all material Taxes which have or may become due and payable pursuant to said Tax Returns and all other Taxes, governmental charges and assessments received to date other than those Taxes being contested in good faith for which adequate provision has been made on the most recent balance sheet forming part of the American Financial Statements. The Tax Returns of American have been prepared, in all jurisdictions material respects, in which such Tax Returns are required accordance with all Applicable Laws and generally accepted principles applicable to be filed (and all Tax Returns filed on behalf of the Company were true, complete and correct).taxation consistently applied;
(b) Except as set forth all material Taxes which American is required by law to withhold and collect have been duly withheld and collected, and have been paid over, in Schedule 5.15(b),a timely manner, to the proper Taxing Authorities to the extent due and payable;
(ic) neither American has not executed any waiver to extend, or otherwise taken or failed to take any action that would have the Company nor any Subsidiary has been notified by effect of extending, the IRS or any other taxing authority that any issues have been raised by the IRS or any other taxing authority applicable statute of limitations in connection with (A) any Taxes owed by the Company or any Subsidiary or (B) respect of any Tax Return liabilities of American for the fiscal years prior to and including the most recent fiscal year;
(d) American is not a "consenting corporation" within the meaning of Section 341(f) of the Code. American has at all times been taxable as a Subchapter C corporation under the Code;
(e) American has never been a member of any consolidated group (other than with American and its Subsidiaries) for Tax purposes. American is not a party to any tax sharing agreement or arrangement, other than with its Subsidiaries;
(f) no Liens for Taxes exist with respect to any of the assets or properties of American, except for statutory Liens for Taxes not yet due or payable or that are being contested in good faith;
(g) all of the U.S. Federal income Tax Returns filed by or on behalf of each of American and its Subsidiaries have been examined by and settled with the Company Internal Revenue Service, or any Subsidiary;
(ii) there are no pending Tax audits and no waivers of statutes the statute of limitations have been given or requested with respect to the Company or any Subsidiaryrelevant Tax liability expired, for all taxable periods through and including the period ending on the date on which the Effective Time occurs;
(iiih) there are no Encumbrances on the assets of the Company or any Subsidiary all Taxes due with respect to Taxesany completed and settled audit, except for Encumbrances for current Taxes not yet due and payable for which adequate reserves examination or deficiency litigation with any Taxing Authority have been provided for paid in the latest balance sheet of the Companyfull;
(ivi) there is no unresolved deficiencies or additions to Taxes have been proposedaudit, assertedexamination, deficiency, or assessed against the Company or refund litigation pending with respect to any Subsidiary Taxes and no claim has been made during the past five three years by no Taxing Authority has given written notice of the commencement of any Governmental Body in a jurisdiction where neither the Company nor any of its Subsidiaries filed Tax Returns audit, examination or paid Taxes that it is or may be subject deficiency litigation, with respect to any taxation by that jurisdictionTaxes;
(vj) the chargesAmerican is not bound by any currently effective private ruling, accruals and reserves for Taxes closing agreement or similar agreement with any Taxing Authority relating to a material amount of Taxes;
(rather than any reserve for deferred Taxes established k) except with respect to reflect timing difference between book and Tax income), reflected in the most recent balance sheet like-kind exchanges pursuant to Section 1031 of the Company (rather than any notes thereto) are adequate Code, American shall not be required to cover all unpaid Taxes of the Company and the Subsidiaries. All reserves for Taxes as adjusted for operations and transactions and the passage of time through the Effective Time include in accordance with past custom and practice of the Company and the Subsidiaries are adequate to cover all unpaid Taxes of the Company and the Subsidiaries accruing through a taxable period ending after the Effective Time;
(vi) the Company and each Subsidiary has complied with all applicable requirements relating , any taxable income attributable to the collection or withholding income that economically accrued in a prior taxable period as a result of Taxes (such as sales Taxes or withholding of Taxes from the wages of employees);
(vii) neither the Company nor any Subsidiary has any Liability in respect of any tax sharing agreement with any Person;
(viii) neither the Company nor any Subsidiary has agreed to (nor has any other Person agreed to on its behalf), and neither the Company nor any Subsidiary is required to, make any adjustments or changes, to its accounting methods pursuant to Section 481 of the Code, and the IRS has not proposed installment method of accounting or any such adjustments comparable provision of state or changes in the accounting methods of such Personslocal Tax law;
(ixl) neither the Company nor any Subsidiary will be required to include in income, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (A) “closing agreement” as described in Code no material amount of property of American is "tax exempt property" within the meaning of Section 7121 (or any corresponding or similar provision 168(h) of state, local or foreign income Tax Law)the Code, (B) open transaction or installment disposition no material amount of assets of American is subject to a lease under Section 7701(h) of the Code, and (C) American is not a party to any material lease made on or pursuant to Section 168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect prior to the Closing Datedate of enactment of the Tax Equity and Fiscal Responsibility Act of 1982; and
(m) immediately following the Merger, American will not have any material amount of income or gain that has been deferred under Treasury Regulation Section 1.1502-13, or (C) prepaid amount received on or prior to the Closing Date;any material excess loss account in a Subsidiary under Treasury Regulation Section 1.1502-19.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (American Radio Systems Corp /Ma/), Agreement and Plan of Merger (CBS Corp)
Taxes and Tax Matters. Except as provided in Section 4.8 of the American Disclosure Schedule:
(a) The Company American has filed completely and each Subsidiary has:
(i) paid or caused to be paid correctly in all Taxes required to be paid by it (including but not limited to any Taxes shown due on any Tax Return); and
(ii) filed or caused to be filed material respects all Tax Returns which are required by all Applicable Laws to be filed by it with it, and has paid, or made adequate provision for the appropriate taxing authority payment of, all material Taxes which have or may become due and payable pursuant to said Tax Returns and all other Taxes, governmental charges and assessments received to date other than those Taxes being contested in good faith for which adequate provision has been made on the most recent balance sheet forming part of the American Financial Statements. The Tax Returns of American have been prepared, in all jurisdictions material respects, in which such Tax Returns are required accordance with all Applicable Laws and generally accepted principles applicable to be filed (and all Tax Returns filed on behalf of the Company were true, complete and correct).taxation consistently applied;
(b) Except as set forth all material Taxes which American is required by law to withhold and collect have been duly withheld and collected, and have been paid over, in Schedule 5.15(b),a timely manner, to the proper Taxing Authorities to the extent due and payable;
(ic) neither American has not executed any waiver to extend, or otherwise taken or failed to take any action that would have the Company nor any Subsidiary has been notified by effect of extending, the IRS or any other taxing authority that any issues have been raised by the IRS or any other taxing authority applicable statute of limitations in connection with (A) any Taxes owed by the Company or any Subsidiary or (B) respect of any Tax Return liabilities of American for the fiscal years prior to and including the most recent fiscal year;
(d) American is not a "consenting corporation" within the meaning of Section 341(f) of the Code. American has at all times been taxable as a Subchapter C corporation under the Code;
(e) American has never been a member of any consolidated group (other than with American and its Subsidiaries) for Tax purposes. American is not a party to any tax sharing agreement or arrangement, other than with its Subsidiaries;
(f) no Liens for Taxes exist with respect to any of the assets or properties of American, except for statutory Liens for Taxes not yet due or payable or that are being contested in good faith;
(g) all of the U.S. Federal income Tax Returns filed by or on behalf of each of American and its Subsidiaries have been examined by and settled with the Company Internal Revenue Service, or any Subsidiary;
(ii) there are no pending Tax audits and no waivers of statutes the statute of limitations have been given or requested with respect to the Company or any Subsidiaryrelevant Tax liability expired, for all taxable periods through and including the period ending on the date on which the Effective Time occurs;
(iiih) there are no Encumbrances on the assets of the Company or any Subsidiary all Taxes due with respect to Taxesany completed and settled audit, except for Encumbrances for current Taxes not yet due and payable for which adequate reserves examination or deficiency litigation with any Taxing Authority have been provided for paid in the latest balance sheet of the Companyfull;
(ivi) there is no unresolved deficiencies or additions to Taxes have been proposedaudit, assertedexamination, deficiency, or assessed against the Company or refund litigation pending with respect to any Subsidiary Taxes and no claim has been made during the past five three years by no Taxing Authority has given written notice of the commencement of any Governmental Body in a jurisdiction where neither the Company nor any of its Subsidiaries filed Tax Returns audit, examination or paid Taxes that it is or may be subject deficiency litigation, with respect to any taxation by that jurisdictionTaxes;
(vj) the chargesAmerican is not bound by any currently effective private ruling, accruals and reserves for Taxes closing agreement or similar agreement with any Taxing Authority relating to a material amount of Taxes;
(rather than any reserve for deferred Taxes established k) Except with respect to reflect timing difference between book and Tax income), reflected in the most recent balance sheet like-kind exchanges pursuant to Section 1031 of the Company (rather than any notes thereto) are adequate Code, American shall not be required to cover all unpaid Taxes of the Company and the Subsidiaries. All reserves for Taxes as adjusted for operations and transactions and the passage of time through the Effective Time include in accordance with past custom and practice of the Company and the Subsidiaries are adequate to cover all unpaid Taxes of the Company and the Subsidiaries accruing through a taxable period ending after the Effective Time;
(vi) the Company and each Subsidiary has complied with all applicable requirements relating , any taxable income attributable to the collection or withholding income that economically accrued in a prior taxable period as a result of Taxes (such as sales Taxes or withholding of Taxes from the wages of employees);
(vii) neither the Company nor any Subsidiary has any Liability in respect of any tax sharing agreement with any Person;
(viii) neither the Company nor any Subsidiary has agreed to (nor has any other Person agreed to on its behalf), and neither the Company nor any Subsidiary is required to, make any adjustments or changes, to its accounting methods pursuant to Section 481 of the Code, and the IRS has not proposed installment method of accounting or any such adjustments comparable provision of state or changes in the accounting methods of such Personslocal Tax law;
(ixl) neither the Company nor any Subsidiary will be required to include in income, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (A) “closing agreement” as described in Code no material amount of property of American is "tax exempt property" within the meaning of Section 7121 (or any corresponding or similar provision 168(h) of state, local or foreign income Tax Law)the Code, (B) open transaction or installment disposition no material amount of assets of American is subject to a lease under Section 7701(h) of the Code, and (C) American is not a party to any material lease made on or pursuant to Section 168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect prior to the Closing Datedate of enactment of the Tax Equity and Fiscal Responsibility Act of 1982; and
(m) immediately following the Merger, American will not have any material amount of income or gain that has been deferred under Treasury Regulation Section 1.1502-13, or (C) prepaid amount received on or prior to the Closing Date;any material excess loss account in a Subsidiary under Treasury Regulation Section 1.1502-19.
Appears in 2 contracts
Samples: Merger Agreement (American Radio Systems Corp /Ma/), Merger Agreement (Westinghouse Electric Corp)
Taxes and Tax Matters. (a) The Company and each Subsidiary has:
(i) paid or caused to be paid all Taxes required to be paid by it (including but not limited to any Taxes shown due on any Tax Return); and
(ii) filed or caused to be filed all Tax Returns required to be filed by it with the appropriate taxing authority in all jurisdictions in which such Tax Returns are required to be filed (and all Tax Returns filed on behalf of the Company were true, complete and correct).
(b) Except as set forth in Schedule 5.15(b),
(i) neither Neither the Company nor any Subsidiary has been notified by the IRS or any other taxing authority that any issues have been raised by the IRS or any other taxing authority in connection with (A) any Taxes owed by the Company or any Subsidiary or (B) any Tax Return filed by or on behalf of the Company or any Subsidiary;.
(iic) there There are no pending Tax audits and no waivers of statutes of limitations have been given or requested with respect to the Company or any Subsidiary;.
(iiid) there There are no Encumbrances on the assets of the Company or any Subsidiary with respect to Taxes, except for Encumbrances for current Taxes not yet due and payable for which adequate reserves have been provided for in the latest balance sheet of the Company;.
(ive) no No unresolved deficiencies or additions to Taxes have been proposed, asserted, or assessed against the Company or any Subsidiary and no claim has been made during the past five (5) years by any Governmental Body in a jurisdiction where neither the Company nor any of its Subsidiaries filed Tax Returns or paid Taxes that it is or may be subject to any taxation by that jurisdiction;.
(vf) the The charges, accruals and reserves for Taxes (rather than any reserve for deferred Taxes established to reflect timing difference between book and Tax income), reflected in the most recent balance sheet of the Company (rather than any notes thereto) are adequate in all material respects to cover all unpaid Taxes of the Company and the Subsidiaries. All reserves for Taxes as adjusted for operations and transactions and the passage of time through the Effective Time in accordance with past custom and practice of the Company and the Subsidiaries are adequate to cover all unpaid Taxes of the Company and the Subsidiaries accruing through the Effective Time;.
(vig) the The Company and each Subsidiary has complied in all material respects with all applicable requirements relating to the collection or withholding of Taxes (such as sales Taxes or withholding of Taxes from the wages of employees);.
(viih) neither Neither the Company nor any Subsidiary has any Liability in respect of any tax sharing agreement with any Person;.
(viiii) neither Neither the Company nor any Subsidiary has agreed to (nor has any other Person agreed to on its behalf), and neither the Company nor any Subsidiary is required to, make any adjustments or changes, to its accounting methods pursuant to Section 481 of the Code, and the IRS has not proposed any such adjustments or changes in the accounting methods of such Persons;.
(ixj) neither Neither the Company nor any Subsidiary will be required to include in income, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (A) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of state, local or foreign income Tax Law), (B) open transaction or installment disposition made on or prior to the Closing Date, or (C) prepaid amount received on or prior to the Closing Date;.
Appears in 1 contract
Samples: Merger Agreement (Quovadx Inc)
Taxes and Tax Matters. (a) The Company and each Subsidiary has:
Except as set forth on Schedule 3.18(a), (i) paid or caused the Company has timely (taking into account extensions of time to be paid all Taxes required to be paid by it (including but not limited to any Taxes shown due on any Tax Return); and
(iifile) filed or caused to be filed all Tax Returns required to be filed by it with the appropriate taxing authority in Company, and all jurisdictions in which such Tax Returns were true, correct, and complete in all material respects; (ii) the Company has paid all Taxes shown thereon or otherwise due; (iii) the Company has provided adequate accruals (without taking into account any reserve for deferred taxes) in the Balance Sheet for any Taxes that have not been paid, but were owed or accrued as of the date of the Balance Sheet, whether or not shown as being due on any Tax Returns; (iv) other than Taxes incurred in the Ordinary Course of Business, the Company has no liability for unpaid Taxes accruing after the Balance Sheet Date; and (v) the accruals for deferred Taxes reflected in the Balance Sheet are required adequate to be filed (and all cover any deferred Tax Returns filed on behalf liability of the Company were true, complete and correct)determined in accordance with GAAP through the date of this Agreement.;
(b) Except as set forth in on Schedule 5.15(b3.18(b),, the net operating losses or other Tax attributes of the Company Group are not currently subject to any limitation under Code Sections 382, 383 or 384.
(ic) neither All Tax Returns filed by or with respect to the Company nor any Subsidiary through the taxable periods ending December 31, 2005 have been examined and closed or are Tax Returns with respect to which the applicable period for assessment under applicable Law, after giving effect to extensions or waivers, has expired.
(d) Except as set forth on Schedule 3.18(d), no request for information related to Taxes has been notified received from any Governmental Entity since December 31, 2006, no audit or other administrative proceeding is pending, being conducted, or, to the Knowledge of the Company, threatened by the IRS any Tax authority, and no judicial proceeding is pending or being conducted that involves any other taxing authority that any issues have been raised by the IRS Tax or any other taxing authority in connection with (A) any Taxes owed by the Company or any Subsidiary or (B) any Tax Return filed or paid by or on behalf of the Company or any Subsidiary;Company.
(iie) there are no pending Tax audits and no waivers No claim or deficiency against the Company for the assessment or collection of statutes of limitations any Taxes has been asserted or proposed which claim or deficiency has not been settled with all amounts determined to have been given or requested with respect to the Company or any Subsidiary;
(iii) there are no Encumbrances on the assets of the Company or any Subsidiary with respect to Taxes, except for Encumbrances for current Taxes not yet due and payable for which adequate reserves have having been provided for in timely paid.
(f) No claim has ever been made or, to the latest balance sheet Knowledge of the Company;
(iv) no unresolved deficiencies or additions to Taxes have been proposed, asserted, or assessed against the Company or any Subsidiary and no claim has been made during the past five years threatened by any Governmental Body a Tax authority in a jurisdiction where neither the Company nor any of its Subsidiaries has never filed Tax Returns or paid Taxes asserting that it the Company is or may be subject to any taxation Taxes imposed by that jurisdiction;, nor, to the Knowledge of the Company, is there any factual basis for any such claim.
(vg) The Company has deducted, withheld and timely paid to the chargesappropriate Governmental Entity (or will deduct, accruals withhold and reserves timely pay to the appropriate Governmental Entity when due) all Taxes required to be deducted, withheld or paid in connection with income allocated to or amounts owing to any employee, independent contractor, creditor, stockholder or interest holder and has complied or will comply with all applicable Tax Laws relating to the payment, withholding, reporting and recordkeeping requirements relating to any Taxes required to be collected or withheld. All individuals paid for Taxes (rather than any reserve for deferred Taxes established to reflect timing difference between book and Tax income), reflected in the most recent balance sheet of services by the Company (rather than any notes thereto) are adequate to cover all unpaid Taxes of the Company and the Subsidiaries. All reserves for Taxes have been properly classified as adjusted for operations and transactions and the passage of time through the Effective Time either employees or independent contractors in accordance with past custom the Code and practice applicable Tax Laws.
(h) There are no Encumbrances, other than Permitted Encumbrances, for Taxes upon the properties or assets of the Company.
(i) The Company has made available to Acquiror true, correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by the Subsidiaries Company with respect to taxable periods ended after December 31, 2005. Schedule 3.18(i) lists all federal, state, local, and foreign income Tax Returns filed with respect to the Company for taxable periods ended after December 31, 2005 that have been audited and/or that currently are adequate the subject of an audit by a Tax authority.
(j) Except as set forth on Schedule 3.18(j), the Company is not and never has been a party to cover all unpaid Taxes any Tax sharing, Tax indemnity, Tax allocation or similar agreements with respect to Taxes, nor does the Company have any liability or potential liability to another party under any such agreement.
(k) None of the Company and the Subsidiaries accruing through the Effective Time;
(vi) the Company and each Subsidiary has complied with all applicable requirements relating to the collection or withholding of Taxes (such Shareholders is a “foreign person” as sales Taxes or withholding of Taxes from the wages of employees);
(vii) neither the Company nor any Subsidiary has any Liability defined in respect of any tax sharing agreement with any Person;
(viii) neither the Company nor any Subsidiary has agreed to (nor has any other Person agreed to on its behalfCode Section 1445(f)(3), and neither the rules and regulations promulgated thereunder, or a “disregarded entity” as defined in Treasury Regulation Section 1.1445-2(b)(2)(iii).
(l) The Company does not have any Liability for the Taxes of any Person under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or foreign Law), as a transferee or successor, by contract or otherwise.
(m) The Company is not and has never been a “reporting corporation” subject to the information reporting and record maintenance requirements of Code Section 6038A.
(n) Except as set forth on Schedule 3.18(n), the Company nor has not made any Subsidiary payment, is required to, not obligated to make any adjustments payment and is not a party to any agreement that under any circumstance could obligate it to make any payments as a result of the consummation of the transactions contemplated by this Agreement that would not be fully deductible under Code Section 280G and Section 162(m).
(o) Except as set forth on Schedule 3.18(o), the Company has not executed or changesentered into with, or received from (and prior to its accounting methods the close of business on the Closing Date will not execute or enter into with, or receive from) any Governmental Entity (i) any agreement, waiver or other document extending or having the effect of extending or waiving the period for assessments or collection of any Taxes for which the Company would or could be liable or (ii) any closing agreement pursuant to Code Section 481 7121, or any predecessor provision thereof or any similar provision of the Codestate, and the IRS local or foreign Law, (iii) any private letter ruling or private letter ruling request; or (iv) any power of attorney with respect to any Tax matter which is currently in force.
(p) The Company has not proposed taken any such adjustments or changes position in any income Tax Return that would give rise to a substantial understatement of federal income Tax within the accounting methods meaning of such Persons;Code Section 6662.
(ixq) neither Except as set forth on Schedule 3.18(q), the Company nor has not participated in any Subsidiary “reportable transaction” or any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4.
(r) Except as set forth on Schedule 3.18(r), the Company will not be required to include in incomeany item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (A) change in accounting method for any taxable period ending on or before the Closing Date (“closing agreement” as described in Pre-Closing Period”) under Code Section 7121 481 (or any corresponding similar provision of state, local, or foreign Law), (B) written agreement with a Governmental Entity with regard to the Tax liability of the Company for any Pre-Closing Period, (C) deferred intercompany gain described in the Treasury Regulations under Code Section 1502 (or any similar provision of state, local or foreign income Tax Law), (B) open arising from any transaction or installment disposition made on that occurred prior to the Closing Date or prior to the Closing on the Closing Date, (D) installment sale or open transaction disposition made prior to the Closing Date or prior to the Closing on the Closing Date, or (CE) prepaid amount received on or prior to the Closing Date;.
(s) The Company is not and has never been a United States real property holding corporation within the meaning of Code Section 897(c)(2) during the applicable period specified in Code Section 897(c)(1)(A)(ii).
(t) The Company Group has not constituted either a “distributing corporation” or a “controlled corporation” (within the meaning of Code Section 355(a)(1)(A)) in a distribution of shares described in Code Section 355 (i) in the two years prior to the date of this Agreement or (ii) in a distribution that could otherwise be reasonably expected to constitute part of a “plan” or “series of related transactions” (within the meaning of Code Section 355(e)) that includes the transactions contemplated by this Agreement.
(u) No property of the Company is property that the Company is or will be required to treat as being owned by another Person under the provisions of Code Section 168(f)(8) (as in effect prior to amendment by the Tax Reform Act of 1986) or is “tax-exempt use property” within the meaning of Code Section 168.
(v) The Company is not and has not been a party to any transaction or other arrangement which is, or Tax items relating thereto are or will be, subject to adjustment under Code Section 482 (including any similar provision of state, local, or foreign Law).
Appears in 1 contract
Taxes and Tax Matters. (a) The Except as set forth on Schedule 3.15(a), Company and each Subsidiary has:
(i) paid or caused to be paid all Taxes required to be paid by it Company or Seller (but only with respect to the Business) through the date hereof (including but not limited to any Taxes shown due on any Tax Return); and
(ii) filed or caused to be filed all Tax Returns required to be filed by it Company or Seller (but only with respect to the Business) with the appropriate taxing authority in all jurisdictions in which such Tax Returns are required to be filed (and all such Tax Returns filed on behalf of the Company were true, complete and correct).
(b) Except as set forth in Schedule 5.15(b),
(i) neither the Neither Company nor any Subsidiary Seller has been notified by the IRS or any other taxing authority that any issues have been raised by the IRS or any other taxing authority in connection with (A) any Taxes owed by the Company or any Subsidiary or (B) any Tax Return filed by or on behalf of the Company or any Subsidiary;Company.
(iic) Except as set forth on Schedule 3.15(c), there are no pending Tax audits and no waivers of statutes of limitations have been given or requested with respect to Company or Seller (but only with respect to the Business).
(d) Except as set forth on Schedule 3.15(d), Company is not currently the beneficiary of any extension of time within which to file any Tax Return and no ruling request with respect to Taxes is currently pending by or on behalf of Company.
(e) No Encumbrances have been filed against Company or any Subsidiary;
(iii) there are no Encumbrances on the assets of the Company or any Subsidiary Business Property with respect to Taxes, except for Encumbrances for current Taxes not yet due and payable for which adequate reserves have been provided for in the latest balance sheet of the Company;.
(ivf) no No unresolved deficiencies or additions to Taxes have been proposed, asserted, or assessed against the Company or any Subsidiary and no claim has been made during Seller (but only with respect to the past five years by any Governmental Body in a jurisdiction where neither the Company nor any of its Subsidiaries filed Tax Returns or paid Taxes that it is or may be subject to any taxation by that jurisdiction;Business).
(vg) Except as set forth on Schedule 3.15(g), and except as would not have a Material Adverse Effect, the charges, accruals and reserves for Taxes with respect to Company or Seller (rather than but only with respect to the Business) for any reserve for deferred Taxes established to reflect timing difference between book and tax period ending on or before the Closing Date (a “Pre-Closing Tax incomePeriod”), including any Pre-Closing Tax Period for which no Tax Return has yet been filed, reflected in on the most recent balance sheet books of the Company (rather than any notes thereto) and used to determine Estimated Closing Working Capital and Final Working Capital are adequate to cover all unpaid Taxes such Taxes.
(h) Except as set forth on Schedule 3.15(h), and except as would not have a Material Adverse Effect, each of the Company and Seller (with respect to the Subsidiaries. All reserves for Taxes as adjusted for operations and transactions Business and the passage of time through the Effective Time in accordance with past custom Employees and practice of the Company and the Subsidiaries are adequate to cover all unpaid Taxes of the Company and the Subsidiaries accruing through the Effective Time;
(viFormer Employees) the Company and each Subsidiary has complied with all applicable requirements relating to the collection or withholding of Taxes (such as sales Taxes taxes or withholding of Taxes from the wages of employees);.
(viii) neither the Company nor any Subsidiary has any no Liability in respect of any tax sharing allocation, sharing, or indemnity agreement with any Person;.
(viiij) neither the Company nor any Subsidiary has not agreed to (nor has any other Person agreed to on its behalf), and neither the Company nor any Subsidiary is none of such Persons are required to, make any adjustments or changes, to its accounting methods pursuant to Section 481 of the Code, and the IRS has not proposed any such adjustments or changes in the accounting methods of such Persons.
(k) No claim has been made within the last three (3) years by any taxing authority in a jurisdiction in which Company or Seller (but only with respect to the Business) does not file Tax Returns that the Business is or may be subject to taxation by that jurisdiction.
(l) Except as set forth on Schedule 3.15(l), and except as would not have a Material Adverse Effect, Company and Seller (but only with respect to the Business) has complied with all reporting and recordkeeping Laws with respect to Taxes.
(m) Company (A) has not been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which is Seller) and (B) does not have any Liability for the Taxes of any Person (other than a group the common parent of which is Seller) under Treasury Regulation 1.1502-6 (or any similar provision of state, local or foreign law) as a transferee or successor;
(ixn) neither Company (A) has not distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Sections 355 or 361 of the Code or (B) engaged in any reportable transaction within the meaning of Sections 6111 and 6112 of the Code and Treasury Regulation 1.6011-4(b)(i).
(o) Company nor any Subsidiary will not be required to include in incomeany item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) “closing agreementagreements” as described in Code Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign non-United States income Tax Law), law) executed on or prior to the Closing Date; (BC) installment sale or open transaction or installment disposition made on or prior to the Closing Date, ; or (CD) prepaid amount received on or prior to the Closing Date;.
(p) The net operating losses of Company as of December 31, 2006 are as set forth on Schedule 3.15(p) (the “Company NOLs”), of which Seller and/or Company will not use any Company NOLs in connection with its operations for any period after January 1, 2007.
(q) Schedule 3.15(q) lists each jurisdiction where Company or Seller (on behalf of Company or otherwise on account of the Business) filed (or plans to file) any Tax Return for taxable years ended 2004, 2005 and 2006, indicates what type of Tax Return was filed (or is planned to be filed) in each such jurisdiction, and describes what type of Tax was paid (or is planned to be paid) in each such jurisdiction. No other Tax Returns are required to be filed in any other jurisdiction by Company or Seller on account of the Business.
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Taxes and Tax Matters. (a) The Company and each Subsidiary has:
(i) paid or caused to be paid all Taxes required to be paid by it (including but not limited to any Taxes shown due on any Tax Return); and
(ii) filed or caused to be filed all Tax Returns required to be filed by it with the appropriate taxing authority in all jurisdictions in which such Tax Returns are required to be filed (and all Tax Returns filed on behalf of the Company were true, complete and correct).
(b) Except as set forth in Schedule 5.15(b),
(i) neither Neither the Company nor any Subsidiary has been notified by the IRS or any other taxing authority that any issues have been raised by the IRS or any other taxing authority in connection with (A) any Taxes owed by the Company or any Subsidiary or (B) any Tax Return filed by or on behalf of the Company or any Subsidiary;.
(iic) there There are no pending Tax audits and no waivers of statutes of limitations have been given or requested with respect to the Company or any Subsidiary;.
(iiid) there There are no Encumbrances on the assets of the Company or any Subsidiary with respect to Taxes, except for Encumbrances for current Taxes not yet due and payable for which adequate reserves have been provided for in the latest balance sheet of the Company;.
(ive) no No unresolved deficiencies or additions to Taxes have been proposed, asserted, or assessed against the Company or any Subsidiary and no claim has been made during the past five (5) years by any Governmental Body in a jurisdiction where neither the Company nor any of its Subsidiaries filed Tax Returns or paid Taxes that it is or may be subject to any taxation by that jurisdiction;.
(vf) the The charges, accruals and reserves for Taxes (rather than any reserve for deferred Taxes established to reflect timing difference between book and Tax income), reflected in the most recent balance sheet of the Company (rather than any notes thereto) are adequate in all material respects to cover all unpaid Taxes of the Company and the Subsidiaries. All reserves for Taxes as adjusted for operations and transactions and the passage of time through the Effective Time in accordance with past custom and practice of the Company and the Subsidiaries are adequate to cover all unpaid Taxes of the Company and the Subsidiaries accruing through the Effective Time;.
(vig) the The Company and each Subsidiary has complied in all material respects with all applicable requirements relating to the collection or withholding of Taxes (such as sales Taxes or withholding of Taxes from the wages of employees);.
(viih) neither Neither the Company nor any Subsidiary has any Liability in respect of any tax sharing agreement with any Person;.
(viiii) neither Neither the Company nor any Subsidiary has agreed to (nor has any other Person agreed to on its behalf), and neither the Company nor any Subsidiary is required to, make any adjustments or changes, to its accounting methods pursuant to Section 481 of the Code, and the IRS has not proposed any such adjustments or changes in the accounting methods of such Persons;.
(ixj) neither Neither the Company nor any Subsidiary will be required to include in income, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (A) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of state, local or foreign income Tax Law), (B) open transaction or installment disposition made on or prior to the Closing Date, or (C) prepaid amount received on or prior to the Closing Date;.
(k) Neither the Company nor any of its Subsidiaries has participated or engaged in any transaction that constitutes a “reportable transaction” as such term is defined in Treasury Regulation Section 1.6011-4(b)(1) or any transaction that constitutes a “listed transaction” as such term is defined in Treasury Regulation Section 1.6011-4(b)(2).
(l) Neither the Company nor any of its Subsidiaries have (A) ever been a member of a consolidated group of corporations (other than a group the common parent of which is the Company) and (B) any Liability for Taxes of any Person (other than the Company or any of its Subsidiaries) under Treasury regulation Section 1.1502-6 (or any similar state, local or foreign tax Law) as a transferee or successor, by contract or otherwise.
(m) Neither the Company nor any Subsidiary is or has been a United States real property holding corporation (as defined in Section 897(c)(2) of the Code).
(n) Other than as a result of the Merger, neither the Company nor any Subsidiary is subject to any limitation on the use of its Tax attributes under Section 382, 383, and 384 of the Code or Treasury Regulation Section 1.1502-15 or-21 (regarding separate return limitation years) or any comparable provisions of state or foreign law.
(o) Neither the Company nor any Subsidiary has constituted a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Sections 355, 356, or 361 of the Code (A) in the two (2) years prior to April 1, 2007 (or will constitute such a corporation in the two (2) years prior to the Closing Date) or (B) in a distribution that otherwise constitutes part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
(p) No claim has been made within the last three (3) years by any taxing authority in a jurisdiction in which the Company or any Subsidiary does not file Tax Returns that such Person is or may be subject to taxation by that jurisdiction.
(q) The net operating losses as of December 31, 2006 of (i) the Company on a consolidated basis and (ii) CareScience separately, are as set forth on Schedule 5.15(q).
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