Switzerland vs. A GmbH, 7 Dec. 2016, Administrative Court, Case No. SB.2016.00008

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The distinction between cash pool receivables and long-term loans.

A GmbH is a group company of the global A-group. The A Group also includes company F Ltd, which is responsible for the global treasury and cash pooling of the A Group. In 2008, A GmbH entered into an agreement with F Ltd on the short-term deposit of excess liquidity and short-term borrowing (cash pool). Under the terms of the agreement, if the balance were in A GmbH’s favor, recievables would be credited interest based on the one-month London Interbank Bid Rate (LIBID) less 6 , 25 basis points, but at least 0.05%.

The Swiss tax administration argued that a portion of the cash pool receivable had to be treated as a long-term loan bearing higher interest rates. The long-term loan was set to the minimum cash pool receivable balance of each fiscal year. The interest rate on the long-term loan was set to the Swiss „Safe Habor Rates“ according to the annual circular letters published by the Swiss Federal Tax Administration.

The Tax Appeal Court largely confirmed the decision of the tax administration. However, it reduced the applicable interest rate for the calendar year 2011 from 2.25% to 2.00%. The Tax Appeal Court argued that the tax administration had unreasonably deviated from its longstanding method when determining the 2011 safe haven interest rate, so that the 2.25% mentioned in the circular letter were too high.

A GmbH. appealed the decision to the Administrative Court.

Based on the overall circumstances, the amount of the assets invested in the cash pool did not comply with the arm’s length principle according to the Administrative Court. In this respect, it was correct to qualify a portion of the cash pool receivable into a mid- or long-term loan. Concerning the size of the long term loan, the simple average of the cash pool receivable balance at the beginning and closing of the fiscal year could be taken as a starting point according to the Administrative Court. This question was referred back to the tax administration.

Concerning the applicable interest rate on the long-term loan, the Administrative Court stated, that the tax authorities cannot in every case refer to the Swiss “Safe Habor Rates”. The Court concluded that the interest rates offered by F Ltd. for long-term intra-group loans were in line with the arm’s length principle.

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Switzerland vs A Gmbh 7 Dec 2016 SB-2016-00008