Tag: Thin cap

Thin Cap rules are limitation of interest deductions in companies that are “thinly capitalised” (equity capital is small in comparison to its debt capital).

Germany vs. Corp. November 2015, Supreme Tax Court judgment I R 57/13

Germany vs. Corp. November 2015, Supreme Tax Court judgment I R 57/13

The Supreme Tax Court held – contrary to the finance ministry interest limitation decree – that the exception for interest payments to a significant shareholder of not more 10% of the company’s total borrowing cost applies separately for each shareholder, rather than to all significant shareholders cumulatively. There are a number of exceptions to the interest limitation rule essentially limiting the annual interest deduction to 30% of EBITDA as shown in the accounts. One of these is the equity ratio rule exempting a subsidiary company from the interest limitation provided its equity ratio (ratio of shareholder’s equity to the balance sheet total) is no more than two percentage points lower than that of the group and no more than 10% of its net interest cost was paid to any one significant shareholder (a shareholder owning more than 25% of the share capital). A loss-making company paying slightly less than 10% of its total net interest cost to each of two ... Continue to full case
Germany vs. Corp. October 2015, Supreme Tax Court decision I R 20/15

Germany vs. Corp. October 2015, Supreme Tax Court decision I R 20/15

The Supreme Tax Court has requested the Constitutional Court to rule on the conformity of the interest limitation with the constitutional requirement to tax like circumstances alike. The interest limitation disallows net interest expense in excess of 30% of EBITDA. However, the rule does not apply to companies with a total net annual interest cost of no more than €3 m or to those that are not part of a group. There are also a number of other exemptions, but the overall effect is to render the actual impact somewhat arbitrary. In particular, the asserted purpose of the rule – prevention of profit shifts abroad through deliberate under-capitalisation of the German operation – seemed somewhat illusory to the Supreme Tax Court in the light of the relatively high threshold and of the indiscriminate application to cases without foreign connotations. The court also pointed out that interest, as such, is a legitimate business expense and that the limitation rule can penalise ... Continue to full case
Russia vs British American Tobacco, Aug. 2014, Russian High Court

Russia vs British American Tobacco, Aug. 2014, Russian High Court

A russian subsidiary of British American Tobacco was found by the russian tax administration to have overpaid interest on loans from an affiliate in the Netherlands. The Court ruled in favor of the tax administration British-American-Tobacco russian case aug 21 2014 on intercompany loans 2008 and 2009 ... Continue to full case
France vs. Banca di Roma, Dec. 2010. CAA no 08PA05096

France vs. Banca di Roma, Dec. 2010. CAA no 08PA05096

In the Banca di Roma case, the Court of Appeals reiterated that the FTA is not allowed to decide whether a business is to be financed through debt or equity. The terms of Article 57 of the French Tax Code (FTC) do not have the purpose, nor the effect, of allowing the administration to assess the ‘normal’ nature of the choice made by a foreign company to finance through a loan, rather than equity, the activity of an owned or controlled French company, and to deduce, if the need arises, tax consequences (cf. Article 212 of the FTC – thin capitalisation). Click here for translation France vs Banca di Roma 16_12_2010_CAA 08PA05096 ... Continue to full case