I OVERVIEW OF THE MARKET
The Venezuelan market is less active than other markets in Latin America, mainly because of political and economic instability, high inflation rates, strict foreign exchange controls and the consequent reduction of foreign investment.
Real estate ownership and transactions are very common, as they are often used as a way to counter the effects of the high inflation rates and foreign exchange controls. However, these transactions still mainly follow traditional models compared with the real estate M&A and real estate private equity transactions seen in other countries in the region.
II RECENT MARKET ACTIVITY
i M&A transactions
There have been few real estate M&A transactions as a result of existing current local economic conditions. Because of the foreign exchange restrictions, the real estate market is marked by domestic deals and significant sophisticated international operators focusing on real estate investments in Venezuela are currently rare. The level of real estate transactions in recent years for domestic deals was moderate and mainly fuelled by purchases or sale by local subsidiaries of multinationals in Venezuelan and foreign investors with high risk appetite. The main transactions taking place in Venezuela are related to the purchase, sale, construction, financing, development and acquisition of office buildings, sports training centres, retail stores, hotels and shopping centres projects.
ii Private equity transactions
There has been no significant real estate private equity activity in Venezuela in recent years.
i Legal frameworks and deal structures
In general, M&A transactions in Venezuela are conducted in a fashion similar to that in other jurisdictions:
a the signing of confidentiality agreements or non-binding letters of intent;
b due diligence investigations;
c negotiation of stock or asset purchase agreement;
d signing of the agreement;
e disclosure of the transaction;
f tender offer process (in the case of publicly listed companies); and
g closing of the transaction.
The purchase agreement generally contains representation and warranties, indemnification and closing conditions customary for M&A transactions in other jurisdictions. Given the rapidly changing regulatory environment, the conditions for closing are frequently the subject of lengthy negotiations between seller and purchaser. One particular difference from other countries is that in Venezuela the purchase agreement is generally concluded between the purchaser and the shareholder, or shareholders, of the target company, instead of the target company itself. On the other hand, there is no procedure in Venezuela that allows the squeeze-out of shareholders of a Venezuelan company. These general rules would also apply to real estate M&A transactions.
ii Hostile transactions
There has been no significant hostile takeover activity in Venezuela in general or with regard to public real estate companies since there are actually very few publicly listed companies in Venezuela. Several of these companies have, however, implemented (or, from time to time, continue to implement) traditional defences against hostile takeovers in line with existing international standards, such as repurchases, poison pills and supermajority provisions, among other measures.
iii Financing considerations
There is very limited financing available for deals as a result of existing current local economic conditions.
iv Tax considerations
The sellers of real estate located in Venezuela are subject to income tax at a 34 per cent rate on the gain realised on the sale of the real estate. The sellers must pay an income tax advance of 0.5 per cent of the sale price when signing the sale agreement. The sellers may credit the 0.5 per cent income tax advance against their final income tax liability at the end of the tax year. The purchaser generally pays the registration expenses when registering the agreement.
If the sale of the real estate is made through the transfer of the shares of the company owning the real estate, the purchaser is generally required to make a 5 per cent income tax withholding on the purchase price if the seller is a domestic or a foreign company. The seller may credit the 5 per cent income tax withholding against its final income tax liability, which is generally 34 per cent on the gain realised on the sale of the shares. The income tax withholding may be reduced or eliminated if the seller qualifies as a tax resident of a country with a double-taxation agreement with Venezuela, and the Venezuelan tax treatment of the capital gain may also vary.
v Cross-border complications and solutions
There are no special tax rules governing the disposition or acquisition of real estate located in Venezuela by foreign investors. Therefore, foreign investors in real estate sometimes structure the sale of real estate located in Venezuela through the sale of the shares of a target company owning the real estate. In such cases, the Venezuelan income tax treatment of any capital gain realised on the sale of the shares of the target company may vary if the seller is a tax resident of a country with a double-taxation agreement with Venezuela. Some of the double-taxation agreements entered into by Venezuela assign the right to the source state to tax the capital gains realised on the transfer of shares deriving more than 50 per cent of their value directly or indirectly from immovable property situated in the source state.
Foreign acquirers typically purchase real estate through a Venezuelan company owned by a foreign company to obtain a more favourable tax treatment if the real estate is intended to be leased. This is because lease payments made to Venezuelan companies are subject to a 5 per cent income tax withholding, whereas lease payments made to foreign companies may be of up to 34 per cent.
Venezuela may well become, in the coming years, a country with significant business opportunities for investors with an appetite for risk. In addition to the competitiveness resulting from the currency devaluation, several factors contribute to Venezuela's investment potential:
a Venezuela is one of the largest Latin American economies and one of the world's largest oil producers and exporters, with the fifth-largest proven oil reserves in the world (the largest in the western hemisphere) and, if the estimated 235 billion barrels of extra-heavy crude oil in the Orinoco Belt region are included, the largest hydrocarbon reserves in the world.
b Venezuela has signed economic cooperation treaties with several countries, including Brazil, China and Russia, providing an adequate framework for investments by companies from these countries.
c Venezuela is a party to bilateral investment treaties with several European, Latin American and Asian countries, which provide for adequate compensation in the case of expropriation or nationalisation, and access to international arbitration in a neutral forum. These treaties provide protection despite the decision of Venezuela to cease being a member of the ICSID Convention (effective July 2012), as most of these treaties provide for international arbitration mechanisms additional to the ICSID facilities (for example, UNCITRAL).
d Venezuela is also a party to international treaties with several countries to avoid double taxation, which protects investors against certain changes in tax legislation.
1 Fulvio Italiani, Carlos Omaña, Arnoldo Troconis and Inés Parra are partners at D'Empaire.