Tag: Article 9

Article 9 of the OECD Model Tax Convention
ASSOCIATED ENTERPRISES
“1. Where
a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State, or
b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,
and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2. Where a Contracting State includes in the profits of an enterprise of that State — and taxes accordingly — profits on which an enterprise of the other Contracting State has been charged to tax in that other State and the profits so included are profits which would have accrued to the enterprise of the first-mentioned State if the conditions made between the two enterprises had been those which would have been made between independent enterprises, then that other State shall make an appropriate adjustment to the amount of the tax charged therein on those profits. In determining such adjustment, due regard shall be had to the other provisions of this Convention and the competent authorities of the Contracting States shall if necessary consult each other.”

Germany vs G GmbH, February 2019, Bundesfinanzhof, Case No I R 73/16

February 27, 2019 / Article 9, Blocking effect, Financial Transactions, Financial transactions, Legality - Legitimacy - Constitutional, Non-Recognition and Recharacterisation, Unsecured loans

A German GmbH managed an unsecured clearing account for a Belgian subsidiary. After financial difficulties in the Belgian subsidiary, the GmbH waived their claim from the clearing account and booked this in their balance sheet as a loss. However, the tax office neutralized the loss according to § 1 Abs. 1 AStG. Up until now, the Bundesfinanzhof has assumed for cases that are subject to a double taxation agreement (DTA), that Art. 9 para. 1 OECD was limited to so-called price corrections, while the non-recognition of a loan claim or a partial depreciation was excluded (so-called Blocking effect). The Bundesfinanzhof has now overturned the previous judgment of the FG. It is true that it was no longer possible to clarify in the appeal instance whether it was really a tax credit or the equity of the Belgian subsidiary. However, this could be left out, since the profit-reducing waiver by the German GmbH should be corrected in any case according to § 1 Abs. 1 ... Continue to full case

UK vs Union Castle Ltd, October 2018, UK Upper Tribunal, Case No 0316 (TCC)

October 2, 2018 / Article 9, Capital transactions, Derivative contracts, Dividends, Financial Transactions, Shares and Dividends, Tax losses

Union Castle Ltd. calimed a tax deduction of £ 39 million related to losses on derivative contracts. After acquiring derivative contracts, Union Castle issued bonus A shares to it’s parent company, Caledonia, which carried a dividend equal to 95% of the cash-flows arising on the close-out of the contracts. Therefore Union Castle had written off 39 million of the value of the contracts in it’s accounts. The tax authorities disagreed that a tax loss had been suffered and issued an assesment disallowing the loss. The Tribunal found in favor of the tax authorities. Capital transactions are subject of the UK transfer pricing rules. Issuing of shares meets the requirements of “making or imposing conditions in commercial and financial relations” as required by Article 9 of the OECD Model Convention. OECD TPG apply to debt financing. Share transactions, which have an effect on income taxation, must be within the UK transfer pricing rules. Click here for translation Union_Castle_Mail_Steamship_Company_Ltd_and_HMRC ... Continue to full case

Denmark vs H1 A/S, June 2013, Supreme Court, Case No SKM2013.699

June 28, 2013 / Article 9, Conversion of debt into shares, Shares and Dividends

In this case a taxable loss of a debitor following a conversion should be calculated on basis of the proportional part of the claim that was converted. Click here for translation DK SKM 2013-699 ... Continue to full case

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