“AB SARL” had in its tax return treated mandatory redeemable preferred shares (MRPS) as debt and the payments made under the MRPS as deductible interest. The tax authorities disagreed and qualified the MRPS as equity and the payments as non-deductible dividends. On that basis an assessment was issued. Judgement of the Administrative Court The Court upheld the assessment issued by the tax authorities and qualified the mandatory redeemable preferred shares (MRPS) as equity. Click here for English translation Click here for other translation ...

“PPL AG” had been set up as a limited liability company and in addition to the ordinary share capital, “PPL AG” had issued non-voting shares (participation certificates) to its German parent company and to three German individual investors in an aggregate amount of CHF 1.82 million. “PPL AG” was later converted into a joint stock corporation and on that occasion the participation certificates were converted into Profit Participating Loans (PPL), with an annual interest rate of 7%. In 2015, the Swiss tax administration carried out a tax audit of “PPL AG” for the years 2010-2014 and issued an assessment claiming payment of CHF 94,000 in withholding taxes on constructive dividends. According to the tax administration “PPL AG” had paid excessive amounts of interest to its lenders under the PPLs, exceeding the safe harbour interest rates published by the Swiss tax administration for the years under review. According to the tax administration, the portion of the interest payments exceeding the published safe harbour interest rates constituted constructive dividends. “PPL AG” brought the case to the Federal Administrative Court claiming an annulment of the tax assessment. The Federal Administrative Court ruled in favour of the tax administration and thus rejected the argument put forward by “PPL AG” – that PPLs under the arm’s length principle had to be treated differently than ordinary shareholder loans. All shareholder loans – whether profit participating or not – are subject to the same arm’s-length standard. There is a possibility for the taxpayer to prove that a  higher interest rate than the safe harbour rates published by the tax administration i a specific situation is at arm’s length, but “PPL AG” had failed to do so. The Court concluded that the interest rate of 7% paid by “PPL AG” was excessive, and that the same amount of interest would not have been paid to an independent third-party lender. Judgement of the Federal Supreme Court The Supreme Court upheld the decision of the  Federal Administrative Court and thus dismissed the appeal of “PPL AG”. The Court stated that “PPL AG” had failed to specify any valid special circumstances to justify its entry into PPLs with a higher interest compensation. The specific circumstances of the case – in particular the fact that the lenders had previously been equity participants of PPL AG – suggested that the choice of the PPLs and the setting of the high interest rate were a result of shareholder relation, rather than commercial considerations. Click here for English translation Click here for other translation ...

The question at issue was whether a tax adviser had acted in accordance with the requirements of a reasonably competent and reasonably acting adviser when advising on the so-called royalty routing and its implementation and when giving advice on trading. Click here for other translation ...

“PPL AG” had been set up as a limited liability company and in addition to the ordinary share capital, “PPL AG” had issued non-voting shares (participation certificates) to its German parent company and to three German individual investors in an aggregate amount of CHF 1.82 million. “PPL AG” was later converted into a joint stock corporation and on that occasion the participation certificates were converted into Profit Participating Loans (PPL), with an annual interest rate of 7%. In 2015, the Swiss tax administration carried out a tax audit of “PPL AG” for the years 2010-2014 and issued an assessment claiming payment of CHF 94,000 in withholding taxes on constructive dividends. According to the tax administration “PPL AG” had paid excessive amounts of interest to its lenders under the PPLs, exceeding the safe harbour interest rates published by the Swiss tax administration for the years under review. According to the tax administration, the portion of the interest payments exceeding the published safe harbour interest rates constituted constructive dividends. “PPL AG” brought the case to the Federal Administrative Court claiming an annulment of the tax assessment. Ruling of the Federal Administrative Court The Court ruled in favour of the tax administration and thus rejected the argument put forward by “PPL AG” – that PPLs under the arm’s length principle had to be treated differently than ordinary shareholder loans. All shareholder loans – whether profit participating or not – are subject to the same arm’s-length standard. There is a possibility for the taxpayer to prove that a  higher interest rate than the safe harbour rates published by the tax administration i a specific situation is at arm’s length, but “PPL AG” had failed to do so. The Court concluded that the interest rate of 7% paid by “PPL AG” was excessive, and that the same amount of interest would not have been paid to an independent third-party lender. Click here for English translation Click here for other translation ...

In moving to the United Kingdom, a New Zealand citizen, Mr. Eric Watson, restructured a significant shareholding into debt owed by a New Zealand company, Cullen Group Ltd, to two Cayman Island conduit companies, all of which he still controlled to a high degree. This allowed Cullen Group Ltd to pay an Approved Issuer Levy (AIL) totalling $8 million, rather than Non-Resident Withholding Tax of $59.5 million. The steps in the arrangement were as follows: (a) Mr Watson sold his shares in Cullen Investments Ltd to Cullen Group, at a (rounded) value of $193 million, being $291 million less his previous $98 million shareholder advances. The sale was conditional on Cullen Investments Ltd selling its shares in Medical Holdings Ltd to Mr Watson and on Cullen Investments Ltd selling its shares in Vonelle Holdings Ltd to Maintenance Ltd which was owned by Mr Watson. (b) Cullen Group’s purchase of the Cullen Investments Ltd shares from Mr Watson was funded by a vendor loan from Mr Watson of $193 million (Loan A). Mr Watson also lent Cullen Group $98 million (Loan B) which Cullen Group on-lent to Cullen Investments Ltd so that Cullen Investments Ltd could repay Mr Watson’s shareholder advance of that amount. (c) Mr Watson assigned his rights under Loans A and B to the two conduit companies, Modena and Mayfair, respectively. Mr Watson made back-to-back loans of $193 million (Modena Loan) and $98 million (Mayfair Loan) to each of them to fund their payment to him of consideration for those respective assignments in return for security over all property owned by Modena and Mayfair respectively. The result was therefore that Cullen Investments Ltd was owned by Cullen Group which owed money to Modena/Mayfair which owed money to Mr Watson. Effectively, instead of Mr Watson owning the shares in Cullen Investments Ltd, he held loans for the same value to Cullen Investments Ltd’s owner, Cullen Group, through Modena and Mayfair. He had exchanged equity for debt. The tax authorities held that Cullen Group had avoided $59.5 million of NRWT (withholding tax) while it paid $8 million in Approved Issuer Levy. An assessment in the amount of the difference, $51.5 million, was issued. There are three requirements for there to be tax avoidance in New Zealand: There is an arrangement which uses, and falls within, specific tax provisions. Viewed in light of the arrangement as a whole, the taxpayer has used the specific provisions in a way which cannot have been within the contemplation and purpose of Parliament when it enacted the provisions. The arrangement has a purpose or effect, that is more than merely incidental, of directly or indirectly altering the incidence of income tax. The High Court found there was a tax avoidance arrangement because it was not within Parliament’s contemplation and purpose in enacting the Approved Issuer Levy regime. Cullen Group Ltd was found liable for the $51.5 million difference plus interest and penalties ...

PepsiCo had devised hybrid securities, which were treated as debt in the Netherlands and equity in the United States. Hence, the payments were treated as tax deductible interest expenses in the Netherlands but as tax free dividend income on equity in the US. The IRS held that the payments received from PepsiCo in the Netherlands should also be characterised as taxable interest payments for federal income tax purposes and issued an assessment for FY 1998 to 2002. PepsiCo brought the assessment before the US Tax Court. Based on a 13 factors-analysis the Court concluded that the payments made to PepsiCo were best characterised as nontaxable returns on capital investment and set aside the assessment. Factors considered were: (1) names or labels given to the instruments; (2) presence or absence of a fixed maturity date; (3) source of payments; (4) right to enforce payments; (5) participation in management as a result of the advances; (6) status of the advances in relation to regular corporate creditors; (7) intent of the parties; (8) identity of interest between creditor and stockholder; (9) “thinness” of capital structure in relation to debt; (10) ability of the corporation to obtain credit from outside sources; (11) use to which advances were put; (12) failure of debtor to repay; and (13) risk involved in making advances. “And, perhaps most convincingly, the “independent creditor test” underscores that a commercial bank or third party lender would not have engaged in transactions of comparable risk.” “However, after consideration of all the facts and circumstances, we believe that the advance agreements exhibited more qualitative and quantitative indicia of equity than debt.” “We hold that the advance agreements are more appropriately characterized as equity for Federal income tax purposes.” ...