Finland vs Borealis OY, March 2019, Administrative Court, Decisions not yet published

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On 19 March 2019, the Helsinki Administrative Court issued two decisions in a tax dispute between the Finnish tax authorities and Borealis Polymers Oy and Borealis Technology Oy.

The decisions have not been published.

Borealis Polymers Oy and Borealis Technology Oy are subsidiaries of Borealis AG. The Austrian Group is a leading provider of polyolefin compounds for the global wire and cable industry, plastic materials for the automotive industry and for used in consumer products. The group also produces a wide range of base chemicals such as melamine, phenol, acetone, ethylene and propylene, as well as fertilizers and technical nitrogen products.

The decisions cover fiscal years 2008, 2009 and 2010 and – according to Borealis’ public statement – relates to re-characterisation of intra group licence agreements.

Additional information is providedIn Borealis’ Annual report for 2018:

  • Borealis Technology OY, Finland, for 2008 and 2010: The reassessment decision results in an increased taxable income, leading to an additional requested payment in a total amount of EUR 297,000 thousand, consisting of additional income taxes, penalties and interests.
  • Borealis Polymers OY, Finland, for 2009: According to the reassessment decision the taxable income increases by EUR 1 42,000 thousand, leading to an additional requested payment in a total amount of EUR 62,000 thousand, consisting of additional income taxes, penalties and interests.

Tax contingencies

On 5 January 2017, Borealis received two decisions of the Finnish Board of Adjustment with regard to Borealis Technology Oy. The Board of Adjustment has confirmed the Finnish tax authority’s view that the license arrangements, entered into between Borealis Technology Oy and Borealis AG in 2008 and 2010, should be re-characterised into transfers of businesses. Based on this the Board of Adjustment requests Borealis to pay EUR 297,000 thousand, comprising
taxes, late payment interest and penalties.

Borealis believes that this decision fails to properly apply Finnish and international tax law and does not adequately consider the relevant facts of the case. Therefore, Borealis has appealed this decision to the Helsinki Administrative Court on 6 March 2017, and has obtained a suspension of payment.

On 11 October 2017, Borealis received a decision of the  Board of Adjustment with regard to Borealis Polymers Oy. Unlike the Finnish tax authority, the Board of Adjustment has recognised the license agreement which Borealis Polymers Oy and Borealis AG had concluded in the course of the introduction of the toll manufacturing set up in 2009.

The Board of Adjustment has, however, decided that the license percentage should be increased from 1% to 2.6% and that in the course of the introduction of the toll manufacturing setup “something else of value” amounting to EUR 142,000 thousand has been transferred. The resulting payment request for the year 2009 amounts to EUR 62,000 thousand, comprising taxes, late payment interest and penalties. The decision of the Board of Adjustment did not comprise other years than 2009 and no reassessment claims for other years have been received yet.

Borealis believes that this decision fails to properly apply Finnish and international tax law and does not adequately consider the relevant facts of the case. Therefore, Borealis has appealed this decision to the Helsinki Administrative Court on 15 December 2017, and has obtained a suspension of payment.
Several other Borealis Group companies are currently subject to tax audits performed by their respective tax authorities. In some of the audits, specific emphasis is put on business restructuring and transfer pricing. Management’s opinion is that the Company is in compliance with all applicable regulations.

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