TREATY SHOPPING: In a moment of truth

1. TREATY SHOPPING:In a moment of truth Iqbal Rajahbalee Senior Counsel BLC Chambers

2. | Monday , January 23 , 2012 | GARR Officials of the Central Board of Direct Taxes have long claimed that the Vodafone deal was done through tax haven Cayman Islands to take advantage of what it termed as “treaty shopping”. DTC “where a person acts through a legal entity created in a State essentially to obtain treaty benefits that would not be available directly.” OECD Commentary Art. 1.

3. 1. EXPLORING THE SHOPPING PARADISE 2. DISCUSSING WITH THE IDEA 3. PICKING THE GENUINE FAKE 4. GOING TO COURT 5. THE SHOPPING EXPERIENCE AGENDA:TREATY SHOPPING

4. Classic holding company model Foreign parent capitalises Mauritius Finco with equity Mauritius Finco sets up subsidiaries in target states, obtains reduced withholding tax on dividend and no capital gains Lends to subsidiaries obtain tax relief. Mauritius Finco taxed at effective rate 3% Points to watch for Interest withholding tax Deductibility of interest expense CFC rules in country of parent Mauritius as location forholding companies Foreign Parent Equity Singapore subsidiary Mauritius Finco Loans Equity Indian subsidiary

5. Private equity business is normally leveraged As there will be little or no tax capacity in Mauritius, Mauritius Holdco will want to lend down into the target country How is it possible to push debt down into the target country? A key requirement is protection from excessive interest withholding tax in the country of the target Private Equity Structure Investors Private Equity Private Mauritius Holdco External lenders Loans Target country Acquisition vehicle/target

6. Outline Indian Parent holds European subsidiary through Mauritian holding company Mauritian company is financed with equity from India Mauritian company makes loans to UK, French and German subsidiaries Interest deductible in European subsidiaries Interest taxed in on Mauritius at effective rate 3% No withholding tax on interest out of Germany Domestic interest withholding tax exemptions available – UK and France No tax in India until/unless Mauritius company distributes a dividend Mauritius as location finance company Indian Parent Mauritius Holding Finance Company Loans UK subsidiary Loans Loans German subsidiary French subsidiary

7. A Conduit Company • A GOOD SHOPPING CENTRE: • a wide network of tax treaties • Very favourable domestic tax rules • Good professional resources • PROVIDES A PLATFORM FOR CONDUIT COMPANIES

8. POLICY OBJECTIONS • It disturbs the “balance of burdens”: • jeopardising the fairness of the treaty bargains. • Blurs distinction between negotiated treaty provisions and unilateral tax changes: • No incentive to establish tax treaties. • Facilitates tax avoidance and tax evasion • Income from international investment bears little tax or no tax at all.

9. EXPLORING THE SHOPPING CENTRE • Acceptable and Unacceptable Practices • “Businesses should be able to organise their affairs to obtain access to treaty benefits” • Pacta Sunt Servanda Principle • requires contracting states to grant treaty benefits “even if considered to be improper”, absent the existence of an explicit anti-avoidance rule within the treaty itself.” OECD Conduit Companies Report (1986) note 15 at para 43

10. The Vienna Convention • Canon of Interpretation of Treaties Treaties to be interpreted according to their natural meaning • Principle of Good Faith The object and purpose of tax convention and the obligation to interpret them in good faith allows states to disregard abusive transactions, such as those entered into with the view to obtaining unintended benefits under the provisions of these conventions. OECD Commentary 2003 Article 1 para 7

11. Dichotomy of Domestic and International Law Public International Law STATE STATE Domestic Tax Law TAXPAYER TAX AUTHORITY

12. Determining Tax Residence • Abdul R. Meman [2005] 276 1 ITR 306 (AAR) Not resident under Article 4 if no liability to pay tax. • ITO vs Mahavirchand Mehta [2011] 11 Taxmann.com 194 (Mumbai) Followed Azadi Bachao Andolan Held that the expression ‘liable to tax' in a contracting state does not imply that the person should actually be liable to tax in that contracting state. It is enough if other contracting state has right to tax such person, whether or not such a right is exercised. General Electric Pension Trust (2005) 280 ITR 425 AAR

13. Tax Residence • Cause of Liability Crown Forest Industries Limited v. The Queen, 92 DTC 6305 (FCTD). Judge Iacobucci: “… nothing improper with such behaviour [of minimising their tax liability], I certainly believe that it is not to be encouraged or promoted by juridical interpretation of existing agreements.”

14. EFFECTIVE MANAGEMENT: • Effective Management by Parent Company OECD Commentary Art 4 • Smallwood and others v Commissioners for HMRC [2009] EWHC 777 (Ch) • Change of Trustee to Mauritius to avoid capital gains tax in UK • Low level decisions made by Trustees in Mauritius but key decisions made in UK. • Decision on the basis of “effective management” of the trust located in UK.

15. Effective Management • Prevost Car Inc v The Queen (2008) DTC 3080 and (2009) DTC 5053 “When corporate entities are concerned, one does not pierce the corporate veil unless the corporation is a conduit for another person and has absolutely no discretion as to the use or appropriation of funds put through it as a conduit …”

16. Article 4 (Residence) • Wood v Holden [2006] EWCA Civ 26 “Effective Management test in Art 4(3) of UK-Netherlands Treaty does not differ in substance from the domestic law test for corporate residence.” Directors in Netherlands make decisions solely on the advice of other persons and without proper informed consideration.

17. Beneficial Ownership • Indofood International Finance Ltd v JP Morgan Chase Bank NA London (2006) BTC 8003 “The concept of beneficial ownership is incompatible with that of the formal owner who does not have full privilege to directly benefit from the income.” • Bank of Scotland vs Ministre de l’Economie, des Finances (2006) Conseil d’Etat, case 283314 (29 decembre 2006)

18. Inherent Anti-Abuse Provision • A Holdings ApS v Federal Tax Admin (2005) 8 ITLR 536 “The prohibition of an abuse of rights as regards conventions is recognised without being necessary to adopt an explicit provision in the respective convention” • Yanko-Weiss Holdings 91996) Ltd v Holon Assessing Office (2007) 10 ITLR 254 • Tax treaties were not designed for use that is not in good faith and in an acceptable manner, or that constitutes improper use..

19. Inherent Anti-Abuse Provision • MIL (Investments) SA v The Queen [2006] T.C.J. No. 362 (T.C.C.) “The shopping or selection of a treaty to minimize tax on its own cannot be viewed as being abusive” On Appeal: “Unable to find an object or a purpose whose abuse could justify the court departing from the plain words of the treaty provisions…”

20. Anti-misuse clauses look-through approach channel approach subject to tax approach exclusion approach Bona-fide clauses general bona-fide provision activity provision amount of tax provision stock exchange provision alternative relief provision Combating Treaty Shopping

21. The Shopping Experience • Azadi Bachao Andolan (2003) 132 Taxman 373 • E-Trade Mauritius Ltd.[2010] 190 TAXMAN 232 (AAR) • Ardex Investments Mauritius Ltd. (AAR No 866 of 2010) • Aditya Birla Nuvo Ltd. v. DDIT [2011] 200 TAXMAN 437 (Mumbai) • Vodaphone Case (2012) (Civil Appeal) No.733

22. Treaty Override DTC GAAR Treaty Amendment THANK YOU END