LOB clauses at Spanish Tax Law

Transcription

1 LOB clauses at Spanish Tax Law José Miguel Martín Rodríguez Dottorando Diritto Tributario Europeo Università di Bologna 1. Introduction 2. LOB clauses at Spain DTC s 2.1 Ownership clause or Look-through approach 2.2 General good faith Clause or Discretionary provision 2.3 Exclusion approach The exclusion of 1929 Holding from Luxembourg More recent exclusion clauses 3. Conclusion 1. Introduction The main objective of this paper is to make a brief analysis of the development and actual situation of Limitation on Benefits (LOB now on) clauses at Spanish Tax Law. As in most countries, the first experience of Spanish Law with LOB clauses was the Double Taxation Treaty (DTC from now on) with the USA at After the deep analysis that has been carried out in the previous chapter of the Italy-USA DTC and its comparison with the Spain-USA one, it is time to expose the development of LOB clauses at the subsequent Spain DTC's. In order to help the reader, when making reference to each DTC we will only name the country with whom it has been signed and the specific Protocol statement (between parenthesis) where the specific clause is set. At the end of the chapter we enclose the full reference to each DTC by country alphabetical order. We will see that after 1990, by influence of USA treaty and the development of OECD models, Spain has added progressively some LOB clauses on his DTC s with other countries,

2 mainly: Ownership clause or Look-through approach. General good faith clause or discretionary provision. Exclusion approach. As there is no need to further explanation of the objective and functionality of this clauses, we will explain briefly their insertion at the various DTC signed by Spain after 1990, anyway, we can assure now that in none of them the LOB clauses have the scope and relevance of the LOB general clause at Spain-USA treaty of 1990 (article 17). Finally, we will share the main conclusions reached after the study of the Spanish LOB experience. 2. LOB clauses at Spain DTC's The first thing we will notice is the inexistence of a general clause as the one in Spain-USA treaty. Each DTC has one, two at the most, single LOB clauses depending on the negotiation process and the mutual fears. Occasionally, they are inserted together in order to tame the (sometimes) rigid exclusion of benefits created by a unique LOB clause. Therefore, although we will analyze the presence at Spanish DTC s of each clause individually, it would be useful to see the connections among them and the main exceptions at each kind of clause. 2.1 Ownership clause or Look-through approach This is the most frequent LOB clause at the DTC's signed by Spain, on the basis of the Paragraph. 13 of the Commentary on Art. 1 of the OECD Model. This clause is placed at the Protocols and his scope is limited to dividends, interests, royalties & capital gains (in general articles 10 to 13 of Spanish DTC s). A model clause would be this (Spain-Estonia DTC): Articles 10, 11, 12 and 13 (Dividends, interest, royalties and capital gains) Notwithstanding the provisions of this Convention, a company resident in a Contracting State in which persons who are not residents of that State hold, directly or indirectly, a participation of more than 50 per cent of the share capital, shall not be entitled to the reliefs provided for by the Convention in respect of dividends, interest, royalties and capital gains arising in the other Contracting State. This provision shall not apply where the said company is engaged in

3 substantive business operations, other than the mere holding of shares or property, in the Contracting State of which it is a resident. case: As a result of this clause, the Tax reductions or exemptions would not apply in the following Persons not residents of the other Contracting State; Hold directly or indirectly; A participation of more than 50 per cent of the share capital The main objective of this clause is excluding from the benefits the companies that are not mostly owned by residents of one of the Contracting States. As its name suggests, the look-through approach clause would involve piercing the corporate veil searching for the true beneficiaries of the DTC. As we can see, the percentage is set at 50 per cent of the share capital. There are only a couple of exceptions to this proportion, at the DTC s Spain-Jamaica [I, B, a)] and Spain-Trinidad & Tobago (IV.m), the percentage is set at 75 per cent. This clause is always completed with the activity clause. Its redaction is the same that we can see at the last sentence of the example. This provision shall not apply where the said company is engaged in substantive business operations, other than the mere holding of shares or property, in the Contracting State of which it is a resident This complementary clause is very important since it guarantees the benefits of the Convention to all companies engaged in substantive business operations, other than the mere holding of shares or property. On the contrary to the usual LOB clause at USA DTC s, it is not necessary to fulfill the base erosion test. In conclusion, the scope of the ownership clause (or look through approach) is excluding from the benefits Holding companies owned (in more than a 50 per cent) by non-resident persons. After 1990 DTC with USA, the clause was soon inserted at the DTC s with Ireland (3)and Portugal [V, a)]. Then it has become more and more frequent and most of new DTC s signed by Spain have included this clause at their Protocol, in time order: Bolivia (1), Russia [V, a)], Israel [3,

4 a)], Cuba (8), Slovenia [II, a)], Iceland [2, a)], Belgium (2), Lithuania [VII, a)], Latvia [VII, b)], Estonia [VII,a)], Switzerland (6.II), Vietnam [VIII, a)], Croatia [V, a)], Malaysia [5, a)], South Africa (II), and Trinidad & Tobago (IV). 2.2 General good faith clause or discretionary provision The strictness of the ownership clause has to be tamed by a clause that could soften its application. With this purpose, the general good faith or discretionary provision is inserted after it in most DTC s signed by Spain as a balancing pole to the strictness of the ownership clause, following the par. 20 of the comments to art.1 of OECD model. It works as a procedure of mutual agreement 1 between the Contracting States through what they can extend the benefits of the Convention to a company that was initially excluded (according to the ownership and activity clauses). The most common redaction of this clause is: A company which under the preceding subparagraph would not be entitled to the benefits of the Convention in respect of the aforementioned items of income, could still be granted such benefits if the competent authorities of the Contracting States agree under article X of this Convention that the establishment of the company and the conduct of its operations are founded on sound business reasons and thus do not have as its primary purpose the obtaining of such benefits. The first DTC where this general good faith clause was included was the Spain-Russia one at 2000 [V, b)]. Subsequently, it has been included in many other DTC s, such as Israel [3, b)], Slovenia [II b)], Iceland[2 b)], Lithuania [VII b)], Latvia [VII b)], Estonia [VI b)], Vietnam [VIII a)], Croatia [V, b)], Malaysia [5 b)], South Africa [II, b)] and Trinidad & Tobago (IV). The general good faith clause is one of the best examples of the variability of the negotiation process and, therefore, of the differences among the DTC s signed by Spain. Once we have explained the most common general good faith clause as an instrument to extend the benefits of the Convention to companies initially excluded, we can identify another way of including the general good faith approach at Spanish tax law, but in a negative way. The purpose of this negative general good faith clause is to leave an open door to 1 This mutual agreement procedure is usually described in one of the last articles of the Convention that is quoted when there is a general good faith clause at the Protocol.

5 exclude companies that are entitled to the benefits when their reason of existence is exclusively obtaining the benefits of the Convention. This is how it is set at most Spain DTC s: The most common Notwithstanding any other provision of this Convention, a resident of a Contracting State shall not receive the benefit of any reduction in or exemption from taxes provided for in this Convention by the other Contracting State if the main purpose or one of the main purposes of the creation or existence of such resident or any person connected with such resident was to obtain the benefits under this Convention that would not otherwise be available. The indetermination of the terms used has made the implementation of this clause a very difficult task. In fact, paradoxically, only at the first appearance of this negative general good faith clause at Spanish tax law at the DTC Spain-Cuba of 2001 (9) it was set a procedure to its application: the mutual agreement of the Contracting States. Later, the same clause was included in several DTC s, mostly as the Protocol general clause we have seen before, such as in the DTC s with Chile (IX), Malta (Art. 27.2), Moldavia [I, d)], El Salvador (X.2) and Albania [II, d)]. There are two exceptions, Greece and United Arab Emirates where the negative general good faith clause appears in fine, in each of the articles 10, 11, 12 and 13 (dividends, interests and royalties). 2.3 Exclusion approach The last LOB clause at Spanish DTC s we will raise is the exclusion approach, that we can find at paragraphs of the comments to article 1 of the OECD model. The aim of this clause is to avoid the application of benefits to those that already enjoy a special fiscal treatment at one of the Contracting States, generally Spain has used this clause in order to avoid that preferential tax regimes from other states could also profit from the benefits of the Convention. We can see two different experiences that should be properly distinguished: The exclusion of 1929 Holding from Luxembourg

6 Even three years before the DTC Spain-USA, at 1987, Spain included a sort of exclusion clause at his DTC with Luxembourg (paragraph 1). At this clause, there is a unique and explicit exclusion of the so-called Holding This exclusion had involved many problems, especially regarding its application to similar regimes, like the sociéte de participation financière (SOPARFI) which nowadays enjoys the benefits after heavy discussions. However, on 19 July 2006, the European Commission pronounced as unlawful the Holding 1929 regime, blocking any new additions to it and setting a transition phase to the existing ones until 31 December In response, Luxembourg has created the SPF 3 (Private Asset Management Company), where corporations cannot be a partner. This time, it will not be easy to build an analogical exclusion for this regime More recent exclusion clauses A more general exclusion clause can be found in other five DTC s signed by Spain, all after the year 2006: Macedonia (II), Malta (article 27.1), Malaysia (4), Jamaica (V) and Trinidad & Tobago (IV). In this case we can confirm that the intention of Spain is to keep out subjects enjoying preferential tax treatments from the benefits of the Convention, perhaps influenced by the recent developments against harmful tax competition. For example, we can the Art.27 of the DTC with Malta of 2006: ( ) The provisions of Articles 6 to 21 of this Convention shall not apply to: 2 The holding company "1929" is a typical company, defined at the Loi du 31 juillet 1929 sur le régime fiscal des societés de participacions financières defines it as: A holding company is considered any and every Luxembourg-based company the exclusive purpose of which is the acquisition of holdings, in any form, in other Luxembourgian or foreign companies, and in the management as well as the utilization of these holdings, so that the company does not, of its own accord, undertake any industrial activity and/or maintain any sales-and-marketing branch office open to the public. Its main characteristic is that the holding companies to which the 1929 status applies only pay an annual subscription tax 0.2% of their share capital, while exempt from any other taxes. 3 Law of 11 May 2007 relating to the creation of a private wealth management company (société de gestion de patrimoine familial)

7 a) persons enjoying a special fiscal treatment by virtue of the laws or the administrative practice of either one of the Contracting States which are identified in the Protocol to this Convention; b) persons enjoying a special fiscal treatment of either Contracting State which has been identified as such by mutual agreement between the competent authorities. The identification of these regimes is written down on the DTC, but, by mutual agreement, new regimes can be added. It is remarkable that this recent addition to Spain DTC s, unlike the Luxembourg clause, does not specify any tax regime. Therefore, the clause might apply to any new preferential tax regime without the problems of an explicit exclusion clause. 3. Conclusion First of all, is obvious that (as it was in the entire world) the DTC Spain-USA impulsed the inclusion of LOB clauses at Spanish Tax Law. However, we have realized that this LOB clauses do not appear in all new DTC s (for example, in the most recent with Costa Rica, from last January, 2011). Also, there is not a single model of each LOB clause, which entails a high dependence on the negotiation process. One last question that strikes us is the Compatibility of the LOB clauses with EU law, when they are set between Member States. Fortunately, another chapter of this book will deal with this problem much more deeply than we could do, so we invite you to keep on reading. BIBLIOGRAPHY Berman, D.M. & Hynes, J. L. (2000). Limitation on Benefits Clauses in U.S. Income Tax Treaties, Tax Management International Journal. Clark, B. (2003). The limitation on Benefits Clause Under an Open Sky, European Taxation. Goosen, H., (1993). Limiting Treaty Benefits, The International Tax Journal. Raventós, S. (1994). Strict limitations on benefits in new Spain/U.S., International Tax Review. Vega Borrego, F. A. (2003). Las medidas contra el "treaty shopping": las cláusulas de limitación de beneficios en los convenios de doble imposición, Ministerio de Hacienda. Vega Borrego, F. A. (2006). Limitation on Benefits Clauses in Double Taxation Conventions, Kluwer Law International.

8 Ward. D.A. (2008). Access to Tax Treaty Benefits, Research Report Prepared for the Advisory Panel on Canada s System of International Taxation. DTC s signed by Spain mentioned in the chapter DTC Spain-Albania, 15 th of March DTC Spain-Belgium, 4th of July DTC Spain-Bolivia, 23 rd of November DTC Spain-Chile, 2nd of February DTC Spain-Croatia, 23 rd of May DTC Spain-Cuba, 10 th of January DTC Spain-EAU, 23 rd of February DTC Spain-El Salvador, 5 th of June DTC Spain-Estonia, 10th of January DTC Spain-Greece, 2 nd of October DTC Spain-Iceland, 18 th of October DTC Spain-Ireland, 27 th of December DTC Spain-Israel, 10 th of January DTC Spain-Jamaica, 12 th of May 2009.

9 DTC Spain-Latvia, 10th of January DTC Spain-Lithuania, 2nd of February DTC Spain-Luxembourg, 4 th of August DTC Spain-Macedonia, 3 rd of January DTC Spain-Malaysia, 12 th of February DTC Spain-Malta, 7 th of September DTC Spain-Moldavia, 11 th of April DTC Spain-Portugal, 7 th of November DTC Spain-Russia, 6 th of July DTC Spain-Slovenia, 28th of June DTC Spain- South Africa, 15 th of February DTC Spain-Switzerland, 3 rd of March Protocol added 27 th of March DTC Spain-Trinidad y Tobago, 9 th of December DTC Spain-USA 22 th of December DTC Spain-Vietnam, 10 th of January 2006.

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