Spain vs. Bicc Cables Energía Comunicaciones S.A., July 2012, Supreme Court, Case No. 3779/2009

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In May 1997, BICC CABLES ENERGÍA COMUNICACIONES, S.A. acquired 177 class B shares in BICC USA Inc. (BUSA) for USD 175 million. The par value of each share was one dollar. The acquisition price of the shares was set on the basis of an Arthur Andersen Report which stated that the fair market value of BUSA was USD 423 million. BUSA was the holding company of four investee companies, so the valuation was made in relation to each of the groups of investee companies.

The shares acquired by BICC CABLES were Class B shares, with a fixed annual dividend of 4.5% of the total investment. This dividend was paid, at BUSA’s discretion and in accordance with the agreements entered into between the parties, either in cash or by delivery of shares in the Class B company.

The acquisition was financed by (1) Ptas. 3,450,000,000,000 charged to the unrestricted reserves account of BICC CABLES and (2) 22,000,000,000 pesetas through a loan granted by an English bank at an interest rate of 6.03%.

As a result of the acquisition, BICC CABLES received a shareholding percentage of 15%, which was much lower than what would correspond to the cost of the shares (175 million US dollars) in relation to the value estimated by the auditing company (423 million US dollars).

In 1998, BUSA delivered 32 Class A shares to BICC CABLES as a dividend, valued at 1,321,546,634 pesetas. In 1999, no dividend was paid to the company.

In June 1999, BICC CABLES repaid part of the loan early (Ptas. 3,600,000,000). Furthermore, in November 1999, BICC OVERSEAS INVESTMENTS Ltd. (BOIL) acquired the BUSA shares owned by BICC CABLES and, at the same time, subrogates itself to the part of the loan which had not been repaid.

The shareholding structure of BICC CABLES was as follows: (1) BICC OVERSEAS INVESTMENTS Ltd. (BOIL), a <>, holds 615,000 shares (43.69% of the capital), 2) BICC CEAT CAVI SRL (BICC Plc.), the parent company of the group, holds 226,451 shares (19.05%), and (3) BANCO SANTANDER holds 500,000 non-voting shares (35.5%). In February 2000 SANTANDER sold its shares to BICC Plc.

In 1997, BICC CABLES considered Ptas. 899,129,800 as tax deductible financial expenses arising from the loan.

In 1998, the expenses linked to the loan Ptas. 1,326,600,000 were deducted from the taxable income. Dividend received this year (the 32 BUSA class A shares valued at Ptas. 1,321,546,634), was not included in the profit and loss account. The company claimed that income corresponding to the dividend would be accounted for when the shares were sold.

In 1999, financial expenses related to the loan Ptas. 489,099,461 were considered deductible.

In 2000, the partial repayment of the loan and the loss on the transfer of the shares to BOIL were accounted for, despite the fact that they corresponded to two transactions carried out in 1999″.

On this bagground a tax assessment was issued by the tax authorities, in which the tax effects (deductions and losses) of the above transactions were disregarded.

This assessment was appealed to the Court by BICC. The court of first instance dismissed the appeal and decided in favour of the tax authorities.

Judgement of the Supreme Court

The Supreme Court likewise found that the transaction would not have been agreed by independent parties and thus not had been in accordance with the arm’s length principle.

Excerpts from the case

“The application to the case of the provision in question does not appear to be conditional, contrary to what is claimed in the application, on the classification of the transaction in question as <> or <>. If the absence of free will on the part of the taxpayer is established, if it can be stated that the activity in question was exclusively determined by the link between the companies and if it is clearly inferred – from the evidence – that the same transaction would not have been carried out by independent companies, the competent tax authorities may make the appropriate adjustments, including, in this case, the annulment of any tax effect that might derive from the transaction in question.”

“it can be concluded, in agreement with the contested decisions, that the transaction resulted in BICC USA Inc. (BUSA) obtained substantial financial resources without the incorporation of shareholders from outside the group; furthermore, it gave rise to costs for the Spanish entity, which obtained no advantage or profit whatsoever, but only losses. It can easily be concluded that the operation was decided and imposed by the group’s parent company in order to increase the resources of its American subsidiary and that, in any event, in view of the above data, such an operation would not have been carried out by an independent company.”

“In any case, it is clear that the Administration has made use of the anti-avoidance rules contained in article nine of the Double Taxation Convention, which constitutes our domestic law.”

 

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