International and Irish Tax Update - July 2016
As highlighted in our Tax Update in March 2016, international tax developments continue to feature prominently on the global news agenda.
The recent UK referendum result has raised many questions about the future relationship between the UK and the EU. We examine the possible tax consequences for Irish companies and the impact on EU tax policy in the years to come.
The political agreement reached in respect of the EU Anti-Tax Avoidance Directive (the "ATA Directive") on 20 June 2016 by EU Finance Ministers represents one of the most important and far-reaching EU tax developments ever. Once transposed into national law, the ATA Directive may result in significant changes to how cross-border investments and multinational corporate groups are structured.
The OECD's Base Erosion and Profit Shifting ("BEPS") project continues to progress with recent consultations taking place in relation to Action 6 and tax treaty access. We discuss below how Action 6 may affect alternative investment funds.
The European Commission's new Action Plan on VAT, which aims to improve and modernise the EU's VAT rules, is analysed below.
In relation to transfer pricing, we discuss the new guidelines published by the Irish Revenue Commissioners which will govern the entry into advance pricing agreements by Revenue with taxation authorities in other countries.
Investors in Irish real estate should be aware of recent Irish Revenue guidance in relation to Irish capital gains tax ("CGT"). We examine the most recent publication and focus on some of the possible consequences.
Since our March Tax Update, a new tax appeals regime has come into force in Ireland. We discuss below the key points to note about the new Tax Appeals Commission.
Brexit - Tax Impacts
The result of the UK referendum on 23 June 2016 to decide to leave the EU (Brexit) has potentially significant consequences for businesses in Ireland, the UK and throughout the EU. At this point, there is uncertainty as to when such an exit will occur, and more fundamentally the future relationship between the UK and the EU and specifically Ireland. Ultimately, these questions will be determined by political leaders. However, assuming the UK does leave the EU, a number of possible relationship models exist including:
(a) leaving the EU but joining the EEA and EFTA, with Iceland, Norway and Liechtenstein (commonly referred to as the "Norwegian model");
(b) leaving the EU to join the EFTA, but not the EEA. This model could also involve some bilateral agreements relating to access to markets (the "Swiss model"); or
(c) a total exit from the EU with a bespoke free trade agreement between the UK and the EU.
Each of these models raise different issues for UK companies. For example, if the result is EEA membership, UK holding companies could be deprived of the benefit of a number of EU directives, including the EU Parent Subsidiary Directive. This could lead to the imposition of withholding tax on payments to UK holding companies from certain EU jurisdictions where appropriate tax treaty relief does not exist.
In our view in this regard, it is highly unlikely that Ireland would chose to impose any withholding taxes on dividends paid to UK holding companies. Ireland's withholding tax exemptions are primarily based on domestic legislation and, as long as Ireland and the UK have a tax treaty in place, withholding should be eliminated. Irish holding companies will continue to benefit from EU directives.
Similarly, Irish borrowers should not be obliged to impose withholding tax on interest payments to UK banks. The domestic Irish exemption, which applies due to the presence of the bilateral tax treaty, will continue to remain in place. Accordingly, cross border lending between Ireland and the UK should not be adversely impacted or require restructuring for Irish tax reasons.
For Irish companies trading with the UK, it is expected that the Irish Government will pursue policies to ensure that Irish companies will continue to have access to UK markets. Accordingly, while the position on VAT and customs may change, it is difficult to envisage a return to the pre-Maastricht Treaty position of border posts and controls.
The impact of Brexit on EU taxation policy may also be significant. The Common Consolidated Corporate Tax Base ("CCCTB") proposals and the EU Anti-Tax Avoidance Directive could be impacted. These are issues on which Ireland and the UK have commonly agreed at EU level. Ireland remains committed to its 12.5% corporate tax rate, which will not be affected by these proposals. However, if the UK ceases to be actively involved in EU taxation policy, it may be that proposals such as the CCCTB may gather momentum.
The UK's future tax policy outside the EU is also attracting significant comment. Recently the UK Chancellor has indicated that the UK will swiftly lower its corporate tax rate. Irish business may well benefit from this, both through UK subsidiaries or branches, but perhaps also through increased reform of the Irish tax regime. The Irish government is already considering changes to the Irish tax system, specifically with the intention of ensuring that Ireland's tax offering remains compelling in the EU and the Eurozone. Areas where change may emerge include Irish capital gains tax (which remains at historically high rates for individuals) and more favourable income tax treatment for entrepreneurs and mobile workers.
Whatever the ultimate outcome, Ireland may emerge in a unique position with regard to the UK. It is closely linked to the UK geographically, economically and socially. However, Ireland is also a committed member of the EU with one recent poll noting that continued EU membership is supported by 90% of the Irish population. Given these factors, Ireland may emerge as an important bridge jurisdiction between the UK and the EU and also the US and the UK in the future.
EU Anti-Tax Avoidance Directive
The Council of the EU published a proposal for a directive laying down rules against tax avoidance practices on 28 January 2016 (the "ATA Directive").The ATA Directive constitutes part of the European Commission's anti-tax avoidance package and sets out minimum standards which all EU Member States ("Member States") would be required to implement. On 21 June 2016, the draft ATA Directive was politically agreed at EU level and it is now expected to be legally approved shortly.
The ATA Directive will apply to all taxpayers that are subject to corporate tax in any Member State, including corporate taxpayers resident outside the EU with a permanent establishment in the EU. It will be transposed into national law in each Member State by 1 January 2019, with later dates for certain measures.
The ATA Directive's introduction of a limitation on deductibility of interest of 30% of EBITDA is particularly noteworthy. This applies to both internal and external debt. The cap applies to borrowing costs which exceed the interest income (and equivalent revenue) of the taxpayer (so called "exceeding borrowing costs").
The definition of "borrowing costs" is broad, and includes interest expenses and other equivalent costs that a taxpayer incurs in connection with the borrowing of funds. It also includes discounts, the interest element in a finance lease and expenses incurred in connection with the raising of finance. It is expected that the definition of interest income will be similarly broad.
Member States may allow derogations and exclusions from the rules, including a derogation where exceeding borrowing costs are less than EUR3m, and where the entity is viewed as a "standalone entity". There are potential exclusions for loans concluded before 17 June 2016 and for infrastructure projects. There are also derogations for group members based on the debt/equity ratio of the group. Finally, Member States may exclude from the general limitation certain financial institutions including, banks, insurers, alternative investment funds and UCITS.
Irish regulated funds should be unaffected by the restrictions on the basis that they constitute AIFs.
The effect of the interest deductibility rule on Irish companies which are "qualifying companies" under section 110 of the Irish Taxes Consolidation Act 1997 (the "TCA") in each specific case will need to be considered.
In his statement welcoming the agreement on the ATA Directive, Irish Finance Minister Noonan stated that the provisions on interest deductibility are deferred until 2024 for countries, like Ireland, that already have strong targeted rules.
The ATA Directive also includes provisions on exit taxation, a general anti-abuse rule, controlled foreign companies and hybrid mismatches.
BEPS Update, Treat Entitlements and Non-CIV Funds
In October 2015, the OECD published the final reports in its Base Erosion and Profit Shifting project. This means we are now in the important implementation phase.
It is intended that certain double tax treaty elements of BEPS will be introduced through the "multilateral instrument" or "MLI" that is scheduled to be finalised by 31 December 2016. An ad hoc group established by the G20 countries, with over 80 countries participating, had its first meeting in November 2015. The aim of the instrument will be to simultaneously update the bilateral treaties of all participating countries without having to individually negotiate and agree each one. Participating countries will agree which parts of the MLI will apply to them. However, no draft has been produced to date.
Treaty Entitlement of Non-CIV Funds
Presently, when funds receive income from countries that impose withholding tax, they typically would seek relief under a relevant double tax treaty.
The OECD considers that treaty relief is open to abuse by persons in non-treaty countries who establish entities in treaty countries simply to access treaty networks (what has been colloquially called "treaty shopping"). With a view to tackling this issue, the OECD has recommended that double tax treaties should include a limitation-on-benefits test ("LOB") and/or a principal purpose test ("PPT") as a condition for granting treaty relief.
The OECD has indicated that countries would be entitled to include an exemption in their LOB for "collective investment vehicles" ("CIVs"). The working definition of a CIV is taken from the 2010 OECD Report on CIVs which refers to an entity that is widely held, subject to investor-protection regulation and owning a diverse portfolio of securities. The concept of widely held is not defined. As a rule of thumb, a CIV connotes a public retail fund such as a UCITS or a US mutual fund. Some private funds may qualify as CIVs, but most would not, and nor would a securitisation company. The position is generally unclear. Indeed, some countries have sought a bright line test of "widely held", based on equivalent tests in UK and Australian legislation, in order to bring clarity to the CIV/non-CIV distinction.
For funds that are not CIVs, the OECD perceives a heightened risk of treaty shopping and / or tax deferral, hence the extended consultation, the most recent of which ended on 22 April 2016. Maples and Calder assisted in preparing submissions by the Irish Debt Securities Association, Irish Funds and other industry groups. A sample of submissions are available here:
The public comments emphasised the important contribution that private funds make as institutional investors to the global economy by pooling capital, investing in business where traditional capital is in short supply, and diversifying risk. The potential for treaty shopping highlighted by OECD had to be weighed against the risk of double taxation i.e. an investor should not suffer more tax investing through a private fund than if they hold an investment directly. Suggested solutions mentioned in the consultation and public comments that seek to respect this principle are as follows:
(a) grant a fund treaty benefits where the fund or its manager is subject to regulation in the country of establishment. Given the significant compliance and regulatory costs as well as transparency to regulators with respect to investment activities, it is highly unlikely regulated funds would be established or operated as tax avoidance vehicles;
(b) grant a fund treaty benefits to the extent the ultimate beneficial owners would have been entitled if they held the investments directly. So if 75% of investors in an Irish fund would be entitled to treaty benefits if they made an investment directly, then the fund is entitled to 75% of the treaty benefits under the relevant Irish treaty. A variation on this approach is to grant 100% treaty benefits if a certain minimum threshold of at least say 80% of the investors would have been entitled if they held directly;
(c) for legally transparent funds, investors should in principle be able to claim treaty benefits directly with the source country. However, this is likely to be impracticable for funds with a wide investor base. Most investors would not have the resources to make treaty claims, which is why they rely on the fund to do this for them; and
(d) grant treaty benefits on the basis of a fund's substantial connection with a treaty jurisdiction. For example, if the fund's directors, managers, depositary or other service providers are all based in Ireland, then it should be entitled, without more, to the benefit of Ireland's treaty network. A variation on this approach is to limit treaty benefits to funds owned more than 50% by institutional investors.
Many of the above approaches would require detailed investor information. To the extent information collected for KYC / AML / FATCA / CRS purposes is not sufficient, many commentators advocate for the implementation of the investor self-certification system developed as part of TRACE. TRACE stands for Treaty Relief and Compliance Enhancement. It is a set of agreements and forms developed by OECD to be used by any country for claiming withholding tax relief at source on portfolio investments.
Despite the focus on LOB, it is understood that only 4 countries – the US, Japan, India and Canada – actually support a LOB provision. Further, a recent infringement proceeding initiated by the EU Commission against the Netherlands indicates that it may not even be lawful under European law for an EU Member State to accept an LOB provision in tax treaties to which it is party. Indeed, the EU Commission’s staff working document noted that “the Commission considers LOB clauses to be detrimental to the Single Market and, in particular, Capital Markets Union. The more general anti-avoidance rules based on the PPT, if adopted by Member States, should be adapted to meet the requirements of a Single Market in order for them to be EU law compliant.”
Accordingly, we anticipate the end result will be that a "principal purpose" eligibility test or PPT will apply as the standard for most treaties in the future, implemented either directly into the treaty or imported by the MLI.
Global Streamed Fund Proposal
Another proposal mentioned in the OECD consultation is the 'Global Streamed Fund' that was developed by the financial firm BlackRock. The key features of this approach are that investment income would be exempt from tax when derived by a qualifying fund (a Global Streamed Fund or “GSF”) but the fund would be obliged to distribute its income on a regular basis and tax would be collected upon these distributions (except distributions to other qualified funds) by the state of residence of the fund and remitted to the state of source of the income. The tax so collected would be determined by the treaty entitlement of the ultimate investor under the treaty between the state of residence of that ultimate investor and the state of source of the income. Treatment as a GSF would be elective, not mandatory; that treatment would be intended for closed-end non-CIVs rather than other types of funds (such as CIVs and open-end funds, where distribution of realised capital gains would raise concerns).
Securitisation companies have been largely neglected in the consultation on this area. This is of concern if a LOB provision is adopted because a typical securitisation company is unlikely to be able to comply where its investors are not resident in the jurisdiction of the securitisation company. Moreover, as securities issued by a securitisation company are typically held through a clearing system, the securitisation company is unlikely to know the residence of its investors. If LOB is adopted it is essential that it includes a safe harbour for securitisation companies similar to that for widely held or publicly traded companies. Otherwise, widely distributed securitisations investing in a range of assets should generally be said to be effected for commercial purposes. Our view is that it would be likely to meet a PPT test, but we believe commentary would need to be included in any PPT that would make this clear.
EU Action Plan on VAT
Following consultation with Member States, on 7 April 2016 the European Commission adopted an Action Plan on VAT entitled "Towards a Single EU VAT Area – Time to Decide" (the "Action Plan"). The Action Plan will refine the strategy in relation to VAT and set the agenda for the next few years.
The Action Plan has several key aims:
(a) removing VAT obstacles to e-commerce in the Single Market and reducing the cost of compliance for small and medium enterprises ("SMEs");
(b) improving cooperation between national authorities and voluntary compliance for taxpayers;
(c) implementing a definitive VAT regime for cross-border trade; and
(d) modernising the VAT rates policy to give Member States more freedom to set VAT rates.
There are two options proposed in terms of changes to the VAT rates:
- The first is to extend the ability to introduce reduced rates and to regularly review and update the list of goods and services and their associated VAT rates. The minimum VAT rate of 15% would be maintained.
- The second option would be to adopt a principle that Member States are free to follow whatever reduced rates policy they wish, provided it does not result in tax distortions.
The Action Plan is an ambitious document that aims to improve and modernise the current EU VAT rules. In an Irish context, there has been vocal support for a reduced VAT rate on development and construction activities. It may be that the VAT Action Plan will support such a move in coming years. Maples will continue to be involved in consultations with the Irish authorities on the Action Plan.
Irish Loans - The Price of Success
Between 2010 and 2015, the Irish economy had one of the most distressed loan markets in Europe. The majority of the loan portfolios were secured on Irish commercial and residential real estate. Buyers are now seeking to generate returns based on active management, enforcement and the sharp upturn in real estate prices, particularly in Dublin, where there is a shortage of quality commercial office space and residential land.
Irish capital gains tax ("CGT") has become a significant issue for loan portfolio owners. In a typical enforcement situation, the lender will appoint a receiver who will sell the secured real estate. The sale of the property may generate an Irish CGT liability. The liability may not be related to the size of the outstanding loans. It is calculated based on the borrower's original acquisition cost of the asset. The tax liability is properly the liability of the borrower, however under Irish law, where a financial institution or insolvency practitioner sells a piece of Irish real estate in an enforcement, they become liable for the CGT.
There are limited ways of addressing this issue, specifically:
(a) in certain circumstances, the lender can adjust the pricing to allow the CGT to be discharged in accordance with the provisions of Irish tax legislation;
(b) there are a number of restructuring routes open to lenders, with the co-operation of the borrower, which may defer the CGT until a future sale; or
(c) the borrower may have capital losses available to it, from other assets, which could be used to mitigate the CGT. This route can require the co-operation of the borrower, and indeed may need the consent of other lenders who have security over the assets standing at a loss.
Borrowers are quick to recognise the CGT impact and can demand a price for their co-operation. Whatever route is chosen, this relatively unique aspect of Irish taxation is creating complications in a significant number of Irish transactions. The advice to Irish portfolio owners remains to take advice on significant transactions at an early stage. To the extent restructuring is implemented, it is necessary to ensure that it is both robust and compliant with Irish law.
Irish Capital Gains Tax - CG50 Issues
The application of a form of Irish withholding tax to disposals of shares and securities deriving their value from Irish land continues to attract attention among businesses and investors. This area is increasingly relevant for investors doing business in a resurgent Irish economy. Recent revised guidance from the Irish Revenue Commissioners and a related recent Irish High Court case are particularly significant.
In October 2015, the Irish Revenue Commissioners published their views on the application of Section 980 of the Irish Taxes Consolidation Act 1997 ("TCA") (see our March Tax Update for further information). In essence, this section imposes a requirement on a purchaser to deduct 15% of the consideration on an acquisition of shares or securities deriving their value from Irish land in the absence of the seller producing a tax clearance certificate (known as a CG50). The amount withheld is then transferred to the Revenue Commissioners and may, or may not, be refunded to the seller depending on whether an underlying liability exists.
The October 2015 guidance noted that sales of loans secured on Irish land were potentially within the scope of the tax clearance procedure. Significantly, it provided that financial institutions selling such loans were not required to obtain CG50 clearance certificates where the sale is in the ordinary course of a trading activity. The revised guidance reaffirms this view, but also notes that this exemption should apply to sales by "qualifying companies" within the meaning of section 110 TCA (commonly known as "Section 110 Companies"). By contrast, under the revised guidance the Revenue state that non-Irish resident financial institutions may continue to have a requirement to obtain CG50 clearance certificates on loan sales. For investors who structure their Irish investments through Luxembourg or other jurisdictions, or indeed for international banks, this may prove an impediment to the sales process.
The October 2015 guidance also noted that entities which constituted investment undertakings (such as Irish regulated funds) are exempt from the requirement to obtain a CG50 clearance. Helpfully, the revised guidance notes that for due diligence purposes, a purchaser can place reliance on the Central Bank register of Alternative Investment Funds in order to establish the status of any such investment undertaking. The revised guidance also provides that companies which are Real Estate Investment Trusts ("REITs") for Irish tax purposes are not required to obtain clearance certificates. As there is no public register of REITs, purchasers should consider obtaining appropriate warranty, opinion or other assurance as to the REIT status of a seller prior to dispensing with a CG50 requirement in a contract. Maples have been involved in a number of such transactions and the language used now is relatively standardised.
Perhaps the most problematic element of the recent guidance is the Revenue's view that loans secured on Irish land are within the scope of the CG50 system. The validity of this view is hotly debated, as in many cases, there are strong arguments to take an alternative position. The broader Revenue view was evident in a recent Irish High Court case (Cintra Infraestructuras Internacional SLU -v- The Revenue Commissioners  IEHC 349). The case involved an attempt by the taxpayer to judicially review a number of non-binding letters from Irish Revenue. This was decisively rejected by the High Court. Although their technical context was not being reviewed, the content of those letters is illuminating. The letters indicate that Revenue consider that shares in companies which hold PPP Contracts (Public Private Partnership concessions such as toll roads) derive their value from Irish land. Accordingly, it appears that the Revenue's position is that a sale of such shares (or indeed securities issued by such companies) are within the scope of Irish CGT. The question whether the contracts constitute an "interest in land" is central to this question and it is clear that Revenue have divergent views from some market participants. In this context investors who wish to transact in shares in such entities, and lenders to such structures, should consider how best to approach the issue. Maples and Calder has considerable experience in this area and please contact a member of the Tax Group to discuss if you have any queries.
New Revenue Tax Appeals Process
The Irish Finance (Tax Appeals) Act 2015 (the "Act") came into force on 21 March 2016. The Act has introduced a new appeals process for tax disputes with the Revenue Commissioners. The Act also established a new Tax Appeals Commission (the "TAC") to replace the Office of the Appeal Commissioners. Unlike the Appeal Commissioners, the TAC is independent of the Revenue Commissioners.
Taxpayers who disagree with a Revenue assessment are now required to lodge their notice of appeal directly with the TAC rather than with Revenue itself. For appeals which had been transferred to the Appeal Commissioners before 21 March 2016, there are certain transitional provisions contained in Part 3 of the Act which ensure that, broadly, the procedures applicable under the old regime will continue to apply with the TAC.
For cases that were in dispute with Revenue before 21 March but which had not been referred to the Appeal Commissioners, Revenue are required to request whether the appellant wishes to settle their appeal by agreement with Revenue or to have their appeal referred to the TAC.
The Act has introduced procedural changes aimed at improving the efficiency and transparency of the appeals system. By default, hearings before the TAC will be held in public but taxpayers can choose to have hearings held in private. The TAC has an obligation to publish their determinations with the identities of the parties anonymised. The TAC has published its rules of procedure, which are available from the TAC's website, www.taxappeals.ie.
Maples and Calder has extensive tax litigation experience, having recently advised a large number of litigants on the settlement of a legacy dispute with Revenue. Please contact a member of the Tax Group if you have any queries.
Advance Pricing Agreements - New Guidelines
Advance Pricing Agreements ("APAs") are agreements between taxation authorities in two or more countries which outline how these authorities will treat future transactions between related taxpayers established in each country. They provide large multinational companies with certainty regarding the transfer pricing treatment of their intra-group transactions.
One of the recommendations of the final OECD report on Action 14 of the BEPS Project (Making Dispute Resolution Mechanisms More Effective) was a best practice recommendation that countries should implement bilateral APA programmes.
The Revenue Commissioners have recently published formal guidelines (the "Guidelines") to govern the entry into of bilateral APAs with foreign tax authorities. The Guidelines became effective as of 1 July 2016. Before the publication of the Guidelines there were no formal Irish rules in place and Revenue simply responded to requests from tax authorities in Treaty partner jurisdictions on a case-by-case basis.
The main points set out in the Guidelines are as follows:
(a) The program does not cover multilateral APAs. Where the issue involves more than two tax jurisdictions, the Revenue will conclude a series of bilateral APAs.
(b) Application can be made by a company which is tax resident in Ireland for the purposes of a relevant double tax agreement and can also be made by a permanent establishment in Ireland of a non-resident company in accordance with the provisions of the relevant treaty.
(c) The program is only intended for transactions involving complex transfer pricing issues where there is significant doubt over the appropriate methodology or where there is a high likelihood of double tax arising.
(d) The purpose of the bilateral APA is to provide certainty to taxpayers that, as long as the terms and conditions of the APA are satisfied, the transfer pricing issues covered by the APA will not be subject to audit adjustment by the tax authorities of either country which is party to the APA.
(e) Revenue will aim to conclude bilateral APA cases within 24 months of receipt of the formal bilateral APA application from the taxpayer.
(f) The APA itself is a binding agreement between tax administrations in two countries governing how future transactions between associated taxpayers in their respective jurisdictions will be treated for tax purposes. The purpose of the APA is to prevent disputes between a tax administration and a taxpayer with respect to transactions covered by the APA.
Given increased litigation in the context of transfer pricing, it is likely that taxpayers will seek to employ the APA procure to reduce risks of adjustment in the future and Maples and Calder can assist with regard to the legal aspects of implementing such APAs.