Tax and Legal Seminar

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1 Denis-Emmanuel Philippe Associate Professor at the University of Liège (Tax Institute)

2 Notional interest deduction (NID) Deduction of a deemed interest calculated on the adjusted net equity No capital duty Interest rate: 3% (TY 2013) Double dip if interest expense is deductible for Corp Automatically applicable (no need for a ruling) Carry-forward of 7 years: abolished Reduces actual Belgian CIT burden Standard rate: 33.99% ETR when NID rate was 4.473% 08.65% (6% return) 14.98% (8% return) 23.13% (14% return) Decrease of rate to 3% => ETR will significantly increase 16.99% (6% return) 21.24% (8% return) 26.71% (14% return) equity loan BELCO Corp GroupCo loan acquisition of receivables license 2

3 Notional interest deduction (NID) - Decrease of rate to 3% (3.5% for SME's) for Tax Year 2013 Law of 28 December TY 2012: possibility to carry forward excess NID for 7 taxable periods in case of insufficient profits (Ministry of Finance: FIFO) - As of TY 2013: abolition of NID carry-forward in case of insufficient taxable profit 3

4 Notional interest deduction (NID) - NID Carry-forward for current NID stock - Limitations: applied as the last operation in the corporate tax return to determine the taxable base (after the deduction of losses) Limited to 60% of the taxable base (save for the first million EUR in profits) The remaining NID stocks will be carried forward (regardless of the expiration of the 7-year carry-forward period), until they are fully utilized 4

5 New thin capitalisation rule - TY 2012: limited thin capitalisation legislation - Debt to equity of 7:1: financing by a taxpayer that is subject to a tax regime that is substantially more advantageous than the normal Belgian tax regime on interest - => targets essentially loans granted by tax havens - Debt to equity of 1:1: financing by Belgian or foreign individual shareholders or directors, or foreign corporate directors (outside EU) - => targets essentially loans granted to PME/KMO by individual shareholders/directors 5

6 New thin capitalisation rule TY 2013 : new debt : equity ratio of 5:1 1. Definition of debt all intra-group loans group is defined by reference to the company law concept of affiliated companies (Art. 11 of the Companies Code) and all loans where the beneficial owner of the interest is not subject to income tax or where he is subject (in respect of the interest income) to a substantially more beneficial tax regime than the Belgian common tax regime. Exclusion: bonds and other debt issued by public offering are excluded, as well as the loans granted by banks and other financial institutions as meant in Art. 56, 2, 2 ITC. 6

7 New thin capitalisation rule 2. Definition of equity Equity is defined as the sum of the taxed reserves at the beginning of the taxable period and the paid-in capital at the end of the taxable period. Possibility to increase the share capital before year-end An anti-abuse measure will exist whereby loans guaranteed or funded by a tainted third party (bearing part or all of the risks of the loan) will be deemed granted by this third party (cf. the anti-channeling provision for foreign tax credit purposes). 3. Exception: companies engaged in movable leasing (cf. Art. 2 RD no. 55) and companies with factoring or real estate leasing as main activity; companies with as main activity the execution of a PPP project obtained in accordance with public procurement legislation. 7

8 New thin capitalisation rule Questions : Risk of double taxation (>< thin capitalisation 18,4 CIT) Real estate companies, with carried forward accounting losses : losses are not taken into account? (// 18,4 CIT) Finance companies (engaging in back-to-back activities) : net position (debts receivables)? 8

9 Form over substance Section 344 BITC Section 344 BITC contains general anti-abuse provision Even if contractual terms are honoured, tax authorities may recharacterise purely tax-driven transactions Strict conditions recharacterization does not alter the legal, financial and/or economic consequences of the transaction chosen by parties Belgium s highest Court : tax authorities can substitute the partie s characterization if the recharacterization leads to a similar legal result as the initial legal characterization Proof that the legal characterization given by the parties was chosen for tax reaons Tax payer may provide counter-evidence that there are legitimate business needs provision only applicable in exceptional circumstances

10 New anti-abuse provision The new anti-abuse provision must allow the tax authorities to combat tax avoidance more efficiently as it will render a legal act or a series of legal acts inopposable to the tax authorities when these tax authorities can establish the existence of abuse of tax law. 10

11 New anti-abuse provision " 1er. N'est pas opposable à l'administration, l'acte juridique ni l'ensemble d'actes juridiques réalisant une même opération lorsque l'administration démontre par présomptions ou par d'autres moyens de preuve visés à l'article 340 et à la lumière de circonstances objectives, qu'il y a abus fiscal. Il y a abus fiscal lorsque le contribuable réalise, par l'acte juridique ou l'ensemble d'actes juridiques qu'il a posé, l'une des opérations suivantes : 1. une opération par laquelle il se place, en violation des objectifs d'une disposition du présent Code ou des arrêtés pris en exécution de celui-ci, en-dehors du champ d'application de cette disposition; ou 2. une opération par laquelle il prétend à un avantage fiscal prévu par une disposition du présent Code ou des arrêtés pris en exécution de celui-ci, dont l'octroi serait contraire aux objectifs de cette disposition et dont le but essentiel est l'obtention de cet avantage. Il appartient au contribuable de prouver que le choix de cet acte juridique ou de cet ensemble d'actes juridiques se justifie par d'autres motifs que la volonté d'éviter les impôts sur les revenus. Lorsque le contribuable ne fournit pas la preuve contraire, la base imposable et le calcul de l'impôt sont rétablis en manière telle que l'opération est soumise à un prélèvement conforme à l'objectif de la loi, comme si l'abus n'avait pas eu lieu". 11

12 New anti-abuse provision Abuse of tax law (whose existence must be proved by the tax authorities) is defined as follows: the taxpayer: puts himself outside of the scope of a tax provision of the Income Tax Code or its related decrees in a way which is incompatible with its objectives; or puts himself within the scope of application of a provision of the Income Tax Code or its related decrees granting a tax benefit in a way which is incompatible with its objectives. Tax authorities can use all means of evidence, including presumption of fact to prove existence of abuse of law Matter is a determination of fact within the absolute discretion of the court The taxpayer may escape by invoking the existence of other sufficient non-tax objectives for his legal act(s). Such non-tax objectives may not be so immaterial that no reasonable person would perform the legal act for this non-tax objective prove (sufficient) non-tax motives for the legal act(s). Example : economies of scale (ECJ, arrest Foggia) 12

13 New anti-abuse provision Parliamentary works: new anti-abuse provision aims at attacking Wholly artificial arrangements Legal acts that do not meet the economic objectives of the tax provisions concerned or that are not performed under normal economic or financial conditions Recommendation: properly document (in reports of board of directors) the specific and material non-tax objectives connected with any legal act(s) that is (are) contemplated Consequence of the application of the new anti-abuse rule The legal act is subject to a tax regime that is in line with the objectives of the tax rule, as if the abuse of tax law would not have taken place. 13

14 Example of financing structure BVI/Jersey 20% interest Belgium

15 New anti-abuse provision : Example 1 BVI/Jersey 100% interest Luxembourg 20% interest Belgium

16 New anti-abuse provision Abuse of law => Ultimate lender (BVI) has a claim directly against initial borrower (BelCo) 21% WHT on interest payments 16

17 Private equity Investor BVI LuxCo BelCo. OpCo OpCo OpCo OpCo OpCo

18 New anti-abuse rule Approx. 10 rulings : art. 344 BITC not applicable dividend distribution by BelCo to LuxCo may not be reclassified in dividend distribution by BelCo to Private equity investor Case-law : recent decision of 6 November 2009 of Tribunal of Brussels Sale by BelCo of OpCo s (exempt capital gain) to Australian company (in the framework of an IPO) Liquidation of BelCo and LuxCo the same day Tribunal : art. 344 BITC not applicable (counter-evidence of legitimate business needs) => relevant under the new anti-abuse rule Liquidation bonus distributed to LuxCo >< Private Equity investor no withholding tax

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