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Tax Management International Forum TAX MANAGEMENT INTERNATIONAL FORUM Comparative Tax Law for the International Practitioner >>>>>>>>>>>>>>>>>>>>>>>>>>> VOLUME 37, NUMBER 2 >>> JUNE 2016 www.bna.com Income and Indirect Tax Consequences of Cash Pooling Arrangements FACTS Host Co is a Host Country corporation that has three operating subsidiaries: H Sub, a Host Country corporation; X Sub, a Country X corporation; and Y Sub, a Country Y cor- poration. In order to minimize short-term bank financing costs and to manage the group’s cash flow requirements, Host Co plans to structure a cash pooling arrangement involving the three operating subsidiaries and FinCo, a newly formed Country Z corpo- ration that will be capitalized by Host Co with a combination of debt and equity and would be the cash pool leader; and Bank, an unrelated Country Z financial institution with branches in Host Country, Country X, Country Y and Country Z. FinCo’s activities would be limited to serving as the cash pool leader in the arrangements described below. The Host Co group has no other operations in Country Z, although it is considering cen- tralizing all of its treasury functions there. Host Co is considering two different types of cash pooling arrangements. The first would involve a zero target balancing cash pooling arrangement whereby, on a daily basis, the cash surpluses of any participant would be transferred to FinCo and FinCo would advance the necessary funds to any participant that experienced a cash deficit. FinCo would maintain an account with Bank in Country Z. Bank would finance any defi- cit in FinCo’s account at a floating rate of interest. Repayment of such financing would be guaranteed by Host Co, H Sub, X Sub and Y Sub, and Bank would have the right to offset amounts in the accounts of H Sub, X Sub and Y Sub against any amounts owed to Bank by FinCo. Based on the guarantees and offset rights, Bank would charge FinCo a floating interest rate that it offered to its best customers and would pay interest on any surplus balance in FinCo’s account at 50 basis less than that rate. It is anticipated that H Sub, X Sub and Y Sub would each pay to FinCo an annual fee equal to a percentage of the average volume of daily transfers to and from such participant to compensate FinCo for serving as the cash pool leader. FACTS AND QUESTIONS CONTINUED ON PAGE 4 THE TAX MANAGEMENT INTERNATIONAL FORUM is Contents designed to present a comparative study of typical international tax law problems by FORUM members who are distinguished practitioners in major industrial countries. Their scholarly discussions focus on the operational questions posed by a fact THE FORUM pattern under the statutory and decisional laws of their respective FACTS AND QUESTIONS FORUM country, with practical 4 recommendations whenever AUSTRALIA appropriate. 6 Mark Friezer and Piotr Klank THE TAX MANAGEMENT Clayton Utz, Sydney and Melbourne INTERNATIONAL FORUM is published quarterly by Bloomberg BELGIUM BNA, 38 Threadneedle Street, 13 J. Malherbe,1 H. Verstraete,2 E. Van Malder3 London, EC2R 8AY,England. Liedekerke Wolters Waelbroeck Kirkpatrick, Brussels Telephone: (+44) (0)20 7847 5801; Fax (+44) (0)20 7847 5858; Email: BRAZIL [email protected] ௠ Copyright 2016 Tax Management 18 Pedro Vianna de Ulhoˆ a Canto and Antonio Luis H. Silva, Jr. International, a division of Ulhoˆa Canto, Rezende e Guerra Advogados, Rio de Janeiro Bloomberg BNA, Arlington, VA. 22204 USA. CANADA Reproduction of this publication 25 Danielle K. Lewchuk and Richard J. Bennett by any means, including facsimile Borden Ladner Gervais LLP, Vancouver transmission, without the express permission of Bloomberg BNA is DENMARK prohibited except as follows: 1) 33 Nikolaj Bjørnholm and Mathias Kjærsgaard Larsen Subscribers may reproduce, for local Bjørnholm Law and Plesner Law Firm, Copenhagen internal distribution only, the highlights, topical summary and FRANCE table of contents pages unless those 38 Thierry Pons pages are sold separately; 2) Fidal, Paris Subscribers who have registered with the Copyright Clearance Center and GERMANY who pay the $1.00 per page per copy 41 Jo¨ rg-Dietrich Kramer fee may reproduce portions of this Siegburg publication, but not entire issues. The Copyright Clearance Center is located INDIA at 222 Rosewood Drive, Danvers, Massachusetts (USA) 01923; tel: 44 Kanwal Gupta, Anita Nair, Anjlika Chopra, Riddhi Shah and Sanjeev (508) 750-8400. Permission to Shah reproduce Bloomberg BNA material Deloitte Haskins & Sells, Mumbai may be requested by calling +44 (0)20 7847 5821; fax +44 (0)20 7847 5858 or IRELAND e-mail: [email protected]. 51 Peter Maher and Philip McQueston A&L Goodbody, Dublin www.bna.com ITALY Board of Editors 54 Giovanni Rolle WTS R&A Studio Tributario Associato Member of WTS Global, Milan Managing Director Andrea Naylor JAPAN Bloomberg BNA 59 Yuko Miyazaki London Nagashima Ohno & Tsunematsu, Tokyo Technical Editor Nick Webb MEXICO Bloomberg BNA 64 Christian Herna´ndez Lara and Terri Grosselin London EY Mexico Editor THE NETHERLANDS Alex Miller 70 Anne Jorritsma and Maarten Merkus Bloomberg BNA London Meijburg & Co, Amsterdam 2 06/16 Copyright ஽ 2016 by The Bureau of National Affairs, Inc. TM FORUM ISSN 0143-7941 SPAIN 75 Lucas Espada and Jorge Go´ mez Alguacil Baker & McKenzie, Madrid SWITZERLAND 80 Silvia Zimmermann and Jonas Sigrist Pestalozzi Attorneys at Law Ltd, Zu¨ rich UNITED KINGDOM 87 Charles Goddard Rosetta Tax LLP, London UNITED STATES 91 John P. Warner Buchanan Ingersoll & Rooney PC, Washington, D.C. APPENDIX Cash Pooling: An EU Perspective 106 Pascal Faes NautaDutilh, Brussels 110 FORUM MEMBERS AND CONTRIBUTORS 06/16 Tax Management International Forum Bloomberg BNA ISSN 0143-7941 3 Income and Indirect Tax Consequences of Cash Pooling Arrangements Facts volume of daily transfers to and from such participant to compensate FinCo for serving as the cash pool ost Co is a Host Country corporation that leader. has three operating subsidiaries: H Sub, a Alternatively, Host Co is considering a notional cash H Host Country corporation; X Sub, a Country pooling arrangement under which the participants X corporation; and Y Sub, a Country Y corporation. In would maintain sub-accounts with Bank but funds order to minimize short-term bank financing costs would not be transferred among those accounts. In- and to manage the group’s cash flow requirements, stead, the balances and deficits in each sub-account Host Co plans to structure a cash pooling arrange- would be netted each day. Bank—on a daily basis and ment involving the three operating subsidiaries and at the rates described above—would credit interest to FinCo, a newly formed Country Z corporation that FinCo when the consolidated account balance was will be capitalized by Host Co with a combination of positive and would debit interest to FinCo when the debt and equity and would be the cash pool leader; consolidated account balance was negative. FinCo and Bank, an unrelated Country Z financial institu- would allocate among the participants the appropri- tion with branches in Host Country, Country X, Coun- ate amount of interest income and expense. As is true try Y and Country Z. FinCo’s activities would be under the zero target balancing cash pooling arrange- limited to serving as the cash pool leader in the ar- ment, repayment of any financing provided by Bank rangements described below. The Host Co group has to FinCo would be guaranteed by Host Co, H Sub, X no other operations in Country Z, although it is con- Sub and Y Sub, and Bank would have the right to offset amounts in the accounts of H Sub, X Sub and Y sidering centralizing all of its treasury functions there. Sub against any amounts owed to Bank by FinCo. H Host Co is considering two different types of cash Sub, X Sub and Y Sub would each pay to FinCo an pooling arrangements. The first would involve a zero annual fee equal to a percentage of the average target balancing cash pooling arrangement whereby, volume of notional transfers to and from the sub- on a daily basis, the cash surpluses of any participant account of such participant as compensation for would be transferred to FinCo and FinCo would ad- FinCo serving as the cash pool leader. vance the necessary funds to any participant that ex- perienced a cash deficit. FinCo would maintain an Questions account with Bank in Country Z. Bank would finance Under each of the two alternatives—i.e., the zero any deficit in FinCo’s account at a floating rate of in- target balancing cash pooling arrangement and the terest. Repayment of such financing would be guaran- notional cash pooling arrangement—what are the teed by Host Co, H Sub, X Sub and Y Sub, and Bank Host Country tax consequences to H Sub with respect would have the right to offset amounts in the accounts to the following: of H Sub, X Sub and Y Sub against any amounts owed I. Assuming that FinCo is adequately capitalized and to Bank by FinCo. Based on the guarantees and offset uses its own employees in Country Z to carry out its rights, Bank would charge FinCo a floating interest responsibilities as cash pool leader, how will the rate that it offered to its best customers and would pay overall arrangement be characterized for Host interest on any surplus balance in FinCo’s account at Country income tax purposes? 50 basis less than that rate. It is anticipated that H II. What are the Host Country income tax conse- Sub, X Sub and Y Sub would each pay to FinCo an quences, taking into transfer pricing consider- annual fee equal to a percentage of the average ations, to H Sub associated with the actual or 4 06/16 Copyright ஽ 2016 by The Bureau of National Affairs, Inc.
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