US vs Wells Fargo, May 2017, Federal Court, Case No. 09-CV-2764

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Wells Fargo, an American multinational financial services company, had claimed foreign tax credits in the amount of $350 based on a “Structured Trust Advantaged Repackaged Securities” (STARS) scheme. The STARS foreign tax credit scheme has two components — a trust structure which produces the foreign tax credits and a loan structure which generates interest deductions.

Wells Fargo was of the opinion that the STARS arrangement was a single, integrated transaction that resulted in low-cost funding.

In 2016, a jury found that the trust and loan structure were two independent transactions and that the trust transaction failed both the objective and subjective test of the “economic substance” analysis. With respect to the loan transaction the jury found that the transaction passed the objective test by providing a reasonable possibility of a pre-tax profit, but failed the subjective test as the transaction had been entered into “solely for tax-related reasons.”

The federal court ruled that Wells Fargo had not been entitled to foreign tax credits. The transaction lacked both economic substance and a non-tax business purpose.

(The economic substance doctrine in the US had an objective and a subjective prong . The objective prong of the analysis considered whether a transaction had a real potential to produce an economic profit after consideration of transaction costs and without consideration of potential tax benefits. The subjective prong of the analysis considered whether the taxpayer had a non-tax business purpose for the transaction. The relationship between the two prongs had long been debated.  Some argued for application of the prongs disjunctively and others argued for application of the prongs conjunctively. When the US Congress codified the economic substance doctrine in 2010, it adopted a conjunctive formulation—denying tax benefits to a transaction if it failed to satisfy either prong.)

 

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