Tag: Unsecured loans

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

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

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
Germany vs Capital GmbH, June 2015, Bundesfinanzhof, Case No I R 29/14

Germany vs Capital GmbH, June 2015, Bundesfinanzhof, Case No I R 29/14

The German subsidiary of a Canadian group lent significant sums to its under-capitalised UK subsidiary. The debt proved irrecoverable and was written off in 2002 when the UK company ceased trading. At the time, such write-offs were permitted subject to adherence to the principle of dealing at arm’s length. In its determination of profits on October 31, 2002, the German GmbH made a partial write-off of the repayment claim against J Ltd. in the amount of 717.700 €. The tax authorities objected that the unsecured loans were not at arm’s length. The tax authorities subjected the write-down of the claims from the loan, which the authorities considered to be equity-replacing, to the deduction prohibition of the Corporation Tax Act. The authorities further argued that if this was not the case, then, due to the lack of loan collateral, there would be a profit adjustment pursuant to § 1 of the Foreign Taxation Act. Irrespective of this, the unsecured loans had ... Continue to full case
Sweden vs. Diligentia, June 2010, Regeringsratten case nr 2483-2485-09

Sweden vs. Diligentia, June 2010, Regeringsratten case nr 2483-2485-09

Diligentia was the parent company of a Group active in real estate. After a take-over of Diligentia by another Group, Skandia Liv, external loans in Diligentia were terminated and replaced with intra-group loans from the new parent company, Skandia Liv. The new loans had an interest rate of 9,5 percent compared to the interest rates before the take over where the average rate was 4,5 percent (STIBOR added with 0,4 percent). Skandia Liv was a life insurance company (tax free under Swedish law) The tax authorities stated that the interest rate level exceeded a marked interest rate level and that the excess rate constituted deemed dividends. The Administrative Court established that an arm‟s length rate can be determined by looking at a wide range of interest rate levels since an interest rate is determined by a number of elements such as the borrower‟s credit worthiness, collateral, term to maturity etc. The court set the interest at 6,5 percent. The Court claimed that the loans should be compared ... Continue to full case