Beneficial Ownership Proposed Changes of the

Transcription

1 Beneficial Ownership Proposed Changes of the OECD Commentary on Article 10, 11 and 12 IFA 2011 Regional CIS International Tax Conference Martin Busenhart, Tax Partner

2 Content Concept of beneficial ownership Background OCED model convention and commentary Case law Discussion draft clarification of the meaning of beneficial owner in the OECD model tax convention 05/12/2011 2

3 Background Wide application of source taxation to dividends, interest and royalties Limitation or elimination of source taxation in double taxation agreements ( DTA ) following the OECD Model convention ( MC ) Restrictions of Improper application of DTA beyond beneficial ownership concept Domestic anti-avoidance incl. CFC rules Residence's requirement (art. 4 MC) General (non written) anti-abuse clause Anti-conduit's clause (like in the new Article 25b of the revised treaty between Switzerland and Russia) Attribution of income to a person? 05/12/2011 3

4 Background Interpretation of double tax treaties Application of the Vienna convention on the Law of Treaties (applicable for Russia Federation since the 29th April 1986 and for Switzerland since the 7th May 1990) Art. 31 para. 1 VC: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 05/12/2011 4

5 Background Interpretation of double tax treaties Art. 31 para. 2. VC The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. Art. 32 VC Supplementary means of interpretation Art. 33 VC Interpretation of treaties authenticated in two or more languages 05/12/2011 5

6 Background Interpretation of double tax treaties Function of the OECD commentary: - The commentary is not a legal provision. It is only a interpretation tool Dynamic versus static interpretation of the commentary (it a revised commentary applicable to a convention signed before the modification? Controversial issue among scholars) 05/12/2011 6

7 Development of OECD Model Convention and Commentary 1977 OECD Model Treaty Article 10 Dividends 1. Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State. 2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but if the recipient is the beneficial owner of the dividends the tax so charged shall not exceed: a) 5 per cent of the gross amount of the dividends if the beneficial owner is a company (other than a partnership) which holds directly at least 25 per cent of the capital of the company paying the dividends; b) 15 per cent of the gross amount of the dividends in all other cases. [ ] 05/12/2011 7

8 Development of OECD Model Convention and Commentary OECD commentary 1977 To article 10, no. 17 No withholding tax reduction in cases of abuse: Increase of the interest in a company shortly before a dividend distribution primarily for obtaining treaty benefit; Establishment of a holding company primarily to obtain treaty benefits. 05/12/2011 8

9 Development of OECD Model Convention and Commentary OECD commentary 1977 To article 10, no 22 Problem of non distributing private investment and base companies: The beneficial owner of dividends arising in a Contracting State is a company resident in another Contracting State; The capital of the company is held by shareholders resident outside the other Contracting State; The company does not make dividend distributions and enjoys preferential taxation treatment; Doubtful application of withholding tax reduction; Bilateral negotiations regarding the applicable tax treatment. 05/12/2011 9

10 Development of OECD Model Convention and Commentary OECD commentary 1977 To article 1, no 9 Problem of artificial legal constructions created to obtain domestic tax advantages and treaty benefits: An individual is acting through a legal entity created essentially to obtain treaty benefits which would not be available directly to such individual; An individual transfers its permanent home to another Contracting State with little or no capital gain tax in order to sell a substantial participation in a company and escape the capital gain taxation. 05/12/

11 Development of OECD Model Convention and Commentary OECD commentary 1977 To article 1, no 11 Introduction of the concept of beneficial ownership to deal with the problems such as the artificial legal constructions created to obtain treaty benefits and the non distributing private investment and base companies. 05/12/

12 Development of OECD Model Convention and Commentary 1995 OECD Model Treaty Article 10 Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but if the beneficial owner of the dividends is a resident of the other Contracting State, the tax so charged shall not exceed: 5 per cent of the gross amount of the dividends if the beneficial owner is a company (other than a partnership) which holds directly at least 25 per cent of the capital of the company paying the dividends; 15 per cent of the gross amount of the dividends in all other cases. [ ] Rephrasing without content-related changes. 05/12/

13 Development of OECD Model Convention and Commentary OECD commentary 2005 To article 10, no 17 Unchanged commentary; No withholding tax reduction in cases of abuse. To article 10, no 22 Unchanged commentary; Problem of non distributing private investment and base companies. 05/12/

14 Case Law on Beneficial Ownership Overview - UK: Indofood international Finance Ltd. vs. JP Morgan Chase Bank N.A - France: Ministre de l Économie, des Finances et de l Industrie c/ Société Bank of Scotland Canadia: Prevost Car Inc. Switzerland: A. Holding ApS gegen Eidgenössische Steuerverwaltung Recent complex Dividend Stripping Cases 05/12/

15 Case Law on Beneficial Ownership Dividend stripping: Total-Return Swap for Hedging CH-AG 35% WHT DTAA Reclaim WHT Stock exchange cum Bank Netdividend 65% Total- Return Swap Counter Party ex Fact pattern Bank and counter party enter into a Total-Return Swap (OTC-Derivative contract) Bank purchases base value over the stock exchange for hedging price risk Bank pays on total return (gain dividends and other proceeds) to counter party Counter party pays interest and margin (so called spread) After due date sale of swap by bank over the stock exchange 05/12/

16 Case Law on Beneficial Ownership Tax Engineering: Total-Return Swap for Hedging Position of Swiss Federal Tax Administration Harmful split of dividend and share rights (contractual or only factual) Liability to pay on the WHT bearing income to third parties Fact that base value is not purchased and on-sold by the same person does not seem to be relevant Court decision pending 05/12/

17 Discussion Draft Introduction to the Draft WHAT? - Change to the commentary (and not to the model convention itself) - This discussion draft includes the proposed changes to the Commentary on Articles 10, 11 and 12 HOW? - The draft is meant as a clarification and not as a change - proposals aimed at clarifying the interpretation that should be given to that concept in the context of the OECD Model Tax Convention WHY? - Observation that there is a need for clarification - The concept of beneficial owner found in Articles 10, 11 and 12 of the OECD Model Tax Convention has given rise to different interpretations by courts and tax administrations 05/12/

18 Discussion Draft Proposed changes of the Commentary on art. 10 (proposed changes on art. 11 and 12 are similar) - OECD Comm, n. 12 ad art. 10 (substitution of immediately received by paid direct to ) - It makes plain that the State of source is not obliged to give up taxing rights over dividend income merely because that income was immediately received by paid direct to a resident of a State with which the State of source had concluded a convention. 05/12/

19 Discussion Draft Proposed changes of the Commentary on art OECD Comm, n.12.1 ad art. 10 (Explanation of the substitution of immediately received by paid direct to) - Since the term beneficial owner was added to address potential difficulties arising from the use of the words paid to a resident in paragraph 1, it was intended to be interpreted in this context and not to refer to any technical meaning that it could have had under the domestic law of a specific country (in fact, when it was added to the paragraph, the term did not have a precise meaning in the law of many countries). 05/12/

20 Discussion Draft Proposed changes of the Commentary on art OECD Comm, n.12.1 ad art. 10 (relation to the meaning in Trust law ) - The term beneficial owner is therefore not used in a narrow technical sense (such as the meaning that it has under the trust law of many common law countries), rather it should be understood in its context, in particular in relation to the words paid to a resident, and in light of the object and purposes of the Convention, including avoiding double taxation and the prevention of fiscal evasion and avoidance. 05/12/

21 Discussion Draft Proposed changes of the Commentary on art OECD Comm, n.12.1 ad art. 10 (relation to domestic law meaning of beneficial ownership ) - This does not mean, however, that the domestic law meaning of beneficial owner is automatically irrelevant for the interpretation of that term in the context of the Article: that domestic law meaning is applicable to the extent that it is consistent with the general guidance included in this Commentary. 05/12/

22 Discussion Draft Proposed changes of the Commentary on art OECD Comm, n ad art. 10 (beneficial ownership over the income) : - In these various examples (agent, nominee, conduit company acting as a fiduciary or administrator), the recipient of the dividend is not the beneficial owner because that recipient does not have the full right to use and enjoy the dividend that it receives and this dividend is not its own; - the powers of that recipient over that dividend are indeed constrained in that the recipient is obliged (because of a contractual, fiduciary or other duty) to pass the payment received to another person. [ ] Such an obligation will normally derive from relevant legal documents but may also be found to exist on the basis of facts and circumstances showing that, in substance, the recipient clearly does not have the full right to use and enjoy the dividend; - ( and not over the shares) - also, the use and enjoyment of a dividend must be distinguished from the legal ownership, as well as the use and enjoyment, of the shares on which the dividend is paid. 05/12/

23 Discussion Draft Proposed changes of the Commentary on art OECD Comm, n ad art. 10 (relation to others anti abuse clause) : - The fact that the recipient of a dividend is considered to be the beneficial owner of that dividend does not mean, however, that the limitation of tax provided for by paragraph 2 must automatically be granted. This limitation of tax should not be granted in cases of abuse of this provision (see also paragraphs 17 and 22 below). [ ] These include specific treaty anti-abuse provisions, general antiabuse rules and substance-over-form or economic substance approaches. Whilst the concept of beneficial owner deals with some forms of tax avoidance (i.e. those involving the interposition of a recipient who is obliged to pass the dividend to someone else), it does not deal with other cases of treaty shopping and must not, therefore, be considered as restricting in any way the application of other approaches to addressing such cases. 05/12/

24 Discussion Draft Proposed changes of the Commentary on art OECD Comm, n.12.6 ad art. 10 (relation to different meaning given in other international instruments/contexts) : - The above explanations concerning the meaning of beneficial owner make it clear that the meaning given to this term in the context of the Article must be distinguished from the different meaning that has been given to that term in the context of other instruments that concern the determination of the persons (typically the individuals) that exercise ultimate control over entities or assets. [For instance in the 2001 report of the OECD Steering Group on Corporate Governance, Behind the Corporate Veil: Using Corporate Entities for Illicit Purposes.] 05/12/

25 Discussion Draft Public comments on the discussion draft - 36 comments received from academics, economic associations, law firms, tax advisors, IFA national branches Positive comments: - We welcome the clarification suggested by the OECD, in comments from MEDEF - I think the changes are very helpful, in comments from Sutherland Asbill & Brennan LLP - [ ] a significant step towards decreasing the confusion in the meaning of the beneficial ownership concept, in comments from Taxand 05/12/

26 Discussion Draft Public comments negative comments: - some features of the proposed changes [ ] will add further uncertainty, in : comments from PWC - [ ] at best create uncertainty, in : comments from Loan Market Association 05/12/

27 Discussion Draft Public comments Tightening of the term beneficial owner - [ ] could allow source states to claim lack of beneficial ownership more or less at will, in : Ernst & Young s comments 05/12/

28 Discussion Draft Public comments Obligation to pay (part of) the amount received to another person as a exclusion of beneficial owner - Unfortunately the discussion paper does not draw out the crucial difference between obligations which should, and those which should not, change the beneficial ownership of income for treaty purposes, In: comments from IBFD - [ ] has far too wide implications, is illogical and therefore is not suited as a guided principle, in : comments from Ernst & Young - [ ] without further guidance regarding the extent and interpretation of this phrase it will create uncertainty for withholding agents and intermediaries, in : comments from Association of global custodians - [ ] is too broad, in: comments from Standard Chartered Bank 05/12/

29 Discussion Draft Public comments Lack of clarity in respect of holding companies: - We suggest clarifying that also mere holding companies can be the beneficial owner and that beneficial ownership does not depend on physical substance (having an office or employees), in : comments of the Federation of European Accountants - [ ] specific guidance is needed to harmonize how jurisdictions apply the concept of beneficial owner to holding companies, in: comments from Kim & Chang 05/12/

30 Discussion Draft Public comments Lack of clarity in respect of derivatives: - In particular, there is a risk that the draft guidance may be misinterpreted with respect to derivatives, in : comments from HSBC 05/12/

31 Discussion Draft Public comments Lack of clarity in respect of trusts: We are disappointed, therefore, at the continued emphasis in the current discussion document on clarifying the meaning of beneficial owner in the corporate context with relatively limited discussion of the issue in the trust context. We believe that this represents a missed opportunity on the part of the OECD in terms of clarifying understanding in a key area, in: comment from STEP [ ] potentially introduce a source of tremendous confusion in respect of trust, in : comments from Jones, Vann, Wheeler 05/12/

32 Discussion Draft Public comments Further suggestions: - We believe that the proposed changes [ ] are unworkable and that the clearest approach would be to leave the commentary on beneficial ownership in its current form and to address any concerns regarding the abuse of treaties in specific antiabuse rules, in : comments from Loan Market Association Commentary should also make clear that determining the beneficial owner of income should not be used as an anti-avoidance tool, in : comment from Standard Chartered Bank 05/12/

33 Discussion Draft Pros Clarification is welcome -Focus on income -Substance over form Beneficial ownership is a controversial and important issue that needs clarification Cons The draft is confusing / questionable if added value - Clarification or amendment? Not specific enough -in respect of derivative products and trusts) i.e. crucial controversial issues areas are not covered -Lack of concrete examples 05/12/

34 Thank you for your attention Martin Busenhart Tax Partner WalderWyss Ltd. Phone Fax /12/

35 Case Law on Beneficial Ownership UK Case: Indofood international Finance Ltd. vs. JP Morgan Chase Bank N.A Indonesia - CO interest 100% 100% Mauritius - CO New - NL - CO interest Note holders interest 05/12/

36 Case Law on Beneficial Ownership UK Case: Indofood international Finance Ltd. vs. JP Morgan Chase Bank N.A The judgment of the U.K. Court of Appeals of March 2, 2006 in this matter found that the notion of beneficial ownership should be understood according to an international fiscal meaning, which could not be deduced from the domestic law of the contracting states. The court noted the absence of a spread ( Newco was not to receive interest at a higher rate than the Issuer had as compliance with the Dutch substance and risk principle was to be achieved by a combination of capital and handling charges ). The absence of a spread was found to be the decisive element to deny beneficial ownership ( In practical terms it is impossible to conceive of any circumstances in which either the Issuer or Newco could derive any direct benefit from the interest payable to the Parent guarantor except by funding its liability to the Principal Paying Agent or Issuer respectively. Such an exception can hardly be described as the full privilege needed to qualify as the beneficial owner, rather the position of the Issuer and Newco equates to that of an administrator of the income ). 05/12/

37 Case Law on Beneficial Ownership French Case: Ministre de l Économie, des Finances et de l Industrie c/ Société Bank of Scotland US - CO Usus fructus resp. loan agreement Bank of Scottland F - CO interest 05/12/

38 Case Law on Beneficial Ownership French Case: Ministre de l Économie, des Finances et de l Industrie c/ Société Bank of Scotland The French Conseil d État had to decide whether the Bank of Scotland which had entered into a usufruct agreement with respect to French shares enjoyed beneficial ownership. Bank of Scotland had paid the U.S. parent of a French subsidiary an amount in exchange of the right to receive for three years the interest payments from the subsidiary. The Conseil d État denied beneficial ownership to the Bank of Scotland by agreeing with the interpretation that the case in substance concerned a loan agreement in which the repayment was left to the French subsidiary. 05/12/

39 Case Law on Beneficial Ownership Canadian Case: Prevost Car Inc S - CO GB - CO dividends dividends 51% 49% NL - CO CA - CO dividends 05/12/

40 Case Law on Beneficial Ownership Canadian Case: Prevost Car Inc (I) The Swedish company Volvo and the English company Henlys agreed to acquire all shares in Prévost Car, Inc (Canada). Volvo incorporated a Dutch company and transferred all shares in Prévost to the Dutch company. Volvo transferred 49% of the shares in the Dutch company to Henlys. A Shareholders Agreement was entered into between Volvo and Henlys, according to which at least 80% of the profits of Prévost and subsidiaries were to be distributed to the shareholders. 05/12/

41 Case Law on Beneficial Ownership Canadian Case: Prevost Car Inc (II) The directors of the Dutch company were to take reasonable steps to procure dividends from Prévost and pay them out as soon as practicable. The Dutch company was not a party to the Shareholders Agreement. Dividends were paid from Prévost to the Dutch company. The Dutch company in turn paid approximately the same amount of dividend to its shareholders, Volvo and Henlys. According to the double tax treaty between Canada and the Netherlands, withholding tax of 5% was withheld at source in Canada when dividends were paid from Prévost to the Dutch company. 05/12/

42 Case Law on Beneficial Ownership Canadian Case: Prevost Car Inc (III) The Tax Court of Canada (Prévost Car Inc. vs Her Majesty the Queen, Docket (IT)G, April 30, 2008) ruled in favour of Prévost on the following grounds: The "beneficial owner" of dividends is the person who receives the dividends for his or her own use and enjoyment and assumes the risk and control of the dividend he or she received. The person who is beneficial owner of the dividend is the person who enjoys and assumes all the attributes of ownership. 05/12/

43 Case Law on Beneficial Ownership Canadian Case: Prevost Car Inc (IV) Where an agency or mandate exists or the property is in the name of a nominee, one looks to find on whose behalf the agent or mandatory is acting or for whom the nominee has lent his or her name. When corporate entities are concerned, one does not pierce the corporate veil unless the corporation is a conduit for another person and has absolutely no discretion as to the use or application of funds put through it as conduit, or has agreed to act on someone else's behalf pursuant to that person's instructions without any right to do other than what that person instructs it, for example, a stockbroker who is the registered owner of the shares it holds for clients. 05/12/

44 Case Law on Beneficial Ownership Canadian Case: Prevost Car Inc (V) There is no evidence that the Dutch company was a conduit for Volvo and Henlys. The Dutch company was a statutory entity carrying on business operations and corporate activity in accordance with the Dutch law under which it was constituted. The Dutch company was not a party to the Shareholders' Agreement; neither Henlys nor Volvo could take action against it for failure to follow the dividend policy described in the Shareholders' Agreement. The Dutch company was the registered owner of Prévost shares. It paid for the shares. It owned the shares for itself. When dividends are received by it in respect of shares it owns, the dividends are its property. 05/12/

45 Case Law on Beneficial Ownership Canadian Case: Prevost Car Inc (VI) The Federal Court of Appeal upheld the decision from the Tax Court (Her Majesty the Queen vs. Prévost Car Inc., 2009 FCA 57, February 26, 2009). It rejected the view of the Canadian tax authorities that the beneficial owner is the person who can, in fact, ultimately benefit from the dividend opens up a myriad of possibilities which would jeopardize the relative degree of certainty that a tax treaty seeks to achieve. 05/12/

46 Case Law on Beneficial Ownership Swiss Case: A. Holding ApS gegen Eidgenössische Steuerverwaltung Bermuda - CO Guernsey - CO DK - Hold CO CH - CO dividends A Swiss based company distributed dividends to its parent company, a Danish holding company. The Danish holding company was owned by a Guernsey-based company which in return was owned by a company located in the Bermuda. The Swiss tax authorities did not accept a tax-free dividend distribution from the Swiss based company to the Danish holding company. 05/12/

47 Case Law on Beneficial Ownership Swiss Case: A. Holding ApS gegen Eidgenössische Steuerverwaltung (II) The Schweizerische Bundesgericht ruled in favor of the Swiss tax administration on the following grounds: Application of a general anti-abuse principle although the DTAA CH-DK from 1973 did not contain a beneficial ownership clause in articles Interpretation of DTAA CH-DK in the light of the OECD commentary (including the comments that were incorporated after the conclusion of the DTAA CH-DK). 05/12/

48 Case Law on Beneficial Ownership Swiss Case: A. Holding ApS gegen Eidgenössische Steuerverwaltung (III) Application of a look-through approach. Since neither the ongoing commercial operations nor the management of the Danish holding company had any relation to Denmark, the Danish holding company was considered a letterbox company being solely established to obtain treaty benefits. According to the implicit anti-abuse clause in the DTAA CH-UK, there was no basis for limiting the Swiss tax authorities rejection of treaty benefits to the Danish holding company. Further development: beneficial ownership-test in form of questionnaires. 05/12/

49 Case Law on Beneficial Ownership Dividend stripping: Transaction via Stock exchange cum cum CH-AG Seller/ Repurchaser Stock exchange Purchaser/ Reseller Net Dividend 35% WHT reclaim ex ex SFTA Fact pattern Combination of short and long transaction over the stock exchange Long cum Coupon, short on or one day after the ex-day Seller and buyer do not directly contract with each other as both transactions are stock exchange transactions Seller realised dividend reduction difference between sales and repurchase price Purchaser earns dividends Price risk with seller and purchaser No tax evasion as no acting in concert between Seller and purchaser Purchaser qualifies as beneficial owner Tax evasion can only occur if seller and purchaser are acting in concert! 05/12/

50 Case Law on Beneficial Ownership Dividend stripping: Future contract with share purchase for Hedging CH-AG 35% WHT SFTA Net dividend 65% Reclaim of WHT Stock exchange cum Bank Eurex Counter Party ex Fact pattern Bank enters in Short Future Contract with counter party over Eurex Bank purchases base value on the stock exchange for hedging the price risk Bank earns dividend Liquidation of Futures via Eurex Disposal of base value over the stock exchange Relevant question if bank and counter party have a direct contractual relationship Future over Eurex Purchase / disposal of base value over the stock exchange Conclusion no on-payment of dividends as parties are not known to each other 05/12/

51 Case Law on Beneficial Ownership Dividend stripping: Total-Return Swap for Hedging CH-AG 35% WHT DTAA Reclaim WHT Stock exchange cum Bank Netdividend 65% Total- Return Swap Counter Party ex Fact pattern Bank and counter party enter into a Total-Return Swap (OTC-Derivative contract) Bank purchases base value over the stock exchange for hedging price risk Bank pays on total return (gain dividends and other proceeds) to counter party Counter party pays interest and margin (so called spread) After due date sale of swap by bank over the stock exchange 05/12/

52 Case Law on Beneficial Ownership Tax Engineering: Total-Return Swap for Hedging Position of Swiss Federal Tax Administration Harmful split of dividend and share rights (contractual or only factual) Liability to pay on the WHT bearing income to third parties Fact that base value is not purchased and on-sold by the same person does not seem to be relevant Court decision pending 05/12/

53 New Russia Swiss Treaty Anti conduit rules Article 25b of the revised treaty The provisions of Articles 10, 11 and 12 shall not apply in respect to any dividend, interest or royalty paid under, or as part of a conduit arrangement. 05/12/

54 New Russia Swiss Treaty Anti conduit rules Article 25b of the revised treaty The term conduit arrangement means a transaction or series of transactions which is structured in such a way that a resident of a Contracting State entitled to the benefits of the Agreement receives an item of income arising in the other Contracting State but that resident pays, directly or indirectly, all or substantially all of that income (at any time or in any form) to another person who is not a resident of either Contracting State and who, if it received that item of income directly from the other Contracting State, would not be entitled under an agreement for the avoidance of double taxation between the State in which that other person is resident and the Contracting State in which the income arises, or otherwise, to benefits with respect to that item of income which are equivalent to, or more favorable than, those available under this Agreement to a resident of a Contracting State; and the main purpose of such structuring is obtaining benefits under this Agreement. 05/12/

55 New Russia Swiss Treaty Anti conduit rules Article 25b of the revised treaty The competent authorities, under the mutual agreement procedure, may agree on the cases or circumstances where the structuring of a conduit arrangement has as main purpose the obtaining of benefits under these Articles. 05/12/

56 New Russia Swiss Treaty Anti conduit rules POSSIBLY ABUSE offshore Repayment of loan Holdco Switzerland Debt financed Dividend/Interest Opco Russia 05/12/

57 New Russia Swiss Treaty Anti conduit rules POSSIBLY NO ABUSE offshore Repayment of loan Dividend/Interest Holdco Switzerland Debt financed Opco Russia Opco Singapore Opco Australia 05/12/

58 Thank you again for your attention Martin Busenhart Tax Partner WalderWyss Ltd. Phone Fax /12/