universal succession was relevant to whether the surviving corporation was a "taxpayer", with obligations and corresponding rights under Australian taxation legislation.
125 There are limits upon what matters relate to the status of a foreign corporation. In Metliss, the liabilities that attached to the new bank that was incorporated under a decree made pursuant to the laws of Greece for the purpose of assuming the assets and liabilities of the old bank went to the status of the new bank. That was because Greek law clothed the new bank with the assets, powers and liabilities of the old bank, with the relevant decree providing that the new bank would become the universal successor of the old bank which thereupon ceased to exist. However, a moratorium declared by the Greek government that purported to suspend obligations on bonds payable in foreign currency did not go to the status of the new bank. The moratorium was thus not given effect, because the obligations on the bonds were governed by English law, which could not be varied by foreign legislation.
126 In my view, NRS § 92A.250 is a law that makes provision for the status of X Corp. There are several points that lead me to this conclusion.
127 The first point is that NRS § 92A.250(1) is to be construed in a context where the evidence is that a merger of two or more corporations under Nevada law does not require the approval of a court, or some regulatory authority. The merger is brought about by a merger agreement and plan of merger, and some regulatory filings. This may be compared with the Australian position, where the Corporations Act 2001 (Cth) does not directly facilitate mergers in this way, and where corporate re-arrangements are often subject to schemes of arrangement which require the approval of a court under s 413.
128 The second point is that NRS § 92A.250(1) uses the words "merger" and "merges". Now, to speak of a "merger" of two or more corporations is to use a metaphor, as senior counsel for the Commissioner accepted. When used as a metaphor, a "merger" may not always accurately describe the underlying legal transactions that take place. Under Australian law, those transactions might involve the acquisition of shares or assets, but without combining the juristic entities involved into one entity: cf Competition and Consumer Act 2010 (Cth) s 50, and the definition of "merger authorisation" in s 4(1). In the case of Nevada law, however, it is significant that § 92A.250(1)(a) employs the direct language of "merges into" to describe a legal consequence of a "merger". These words are to be given their plain meaning. They describe a situation where the constituent elements become one whole element, being the
