OECD BEPS: Multilateral Instrument signed by Switzerland and 67 other countries

On 7 June 2017, officials from more than 70 countries participated in the signing of the multilateral instrument (“MLI”), which is a result of negotiations of more than 100 jurisdictions. The Organization for Economic Cooperation and Development (“OECD”) aims for a swift implementation of a series of tax treaty measures to update international tax rules and reduce the opportunity for tax avoidance. Impacts for Swiss companies are mainly expected in the field of dispute resolutions.

The MLI is one of the outcomes of the OECD/G20 Project to tackle Base Erosion and Profit Shifting (“BEPS”) and has the goal to enable countries to swiftly modify bilateral tax treaties (more than 3’000 worldwide) to include the measures developed in the course of the BEPS work. In this respect, an ad hoc group, consisting of 99 countries, four non-state jurisdictions and seven international or regional organizations participating as observers, developed the MLI. In their negotiations, the ad hoc group focused on the following BEPS measures and how the MLI would need to modify the provisions of bilateral or regional tax agreements. Aiming to swiftly implement those measures, some of which are minimum standards and others representing best practice recommendations only:

  • Hybrid mismatch arrangements in accordance with BEPS Action 2 (best practice recommendation);
  • Granting of treaty benefits in inappropriate circumstances under BEPS Action 6 (minimum standard);
  • Amendments to the definition of “permanent establishment” as recommended under BEPS Action 7 (best practice recommendation);
  • Facilitating of access to and resolution of mutual agreement procedures consistent with BEPS Action 14 (minimum standard).

Continue to read in detail in our current newsletter.

If you have questions, please contact your usual PwC contact person or one of PwC Switzerland´s experts named below.

Contacts

Andreas Staubli
Partner
Leader TLS Schweiz
Tel. +41 58 792 44 72
Send E-mail
Armin Marti
Partner
Leader CT Schweiz
Tel. +41 58 792 43 43
Send E-mail
Stefan Schmid
Partner
Tax & Legal
+41 58 792 44 82
Send E-mail
Fabio Dell’Anna
Partner
Tax & Legal
+41 58 792 97 17
Send E-mail
Claude-Alain Barke
Partner
Tax & Legal
+41 58 792 83 17
Send E-mail
Michael Ruckstuhl
Senior Manager
Tax & Legal
+41 58 792 14 94
Send E-mail

EMEA ITS Permanent Establishment Webcast Series, Episode One

The Changing PE Threshold

Thursday, 8 June 2017, 3.00 – 3.45 pm CET

Preventing the artificial avoidance of Permanent Establishment (“PE”) status is one of the key topics addressed by the OECD’s Base Erosion and Profit Shifting (“BEPS”) package.

In this webcast series PwC specialists will address the practical implications that a reduction in the PE threshold will have for multinational corporations and will provide an insight, through examples, on the challenges and practical actions that can be taken to manage PE in the post-BEPS world.

The webcast series will provide a mix of technical updates and analysis, practical experience and local country expertise around topics such as profit attribution to a PE, direct tax consequences of a PE and the broader impact that the new rules will have on an increasingly global and mobile workforce. Critically, it will give you the chance to raise questions directly to our PE specialists.

The webcast series will start by setting the scene for the current PE landscape by considering the practical changes that have taken place to the PE threshold and the subsequently looking at the practical challenges associated with attributing profit to PE’s. The later sessions will focus on the practical implications of
these changes, providing guidance and experience of the challenges and risks that may be created.

  • Session 1 –The Changing PE Threshold – 8 June 2017
  • Session 2 –Profit Attribution to PE’s – 6 July 2017

After the summer break we will return recharged with further sessions covering topics such as

  • Broader implications of a PE beyond corporate tax
  • VAT and PE
  • Employee mobility and PE consequences

Episode 1, The Changing PE Threshold – 8 June 2017

This introductory episode will set the stage for our ongoing discussion of PE in the new tax environment and will work through practical examples being faced by multinational corporations, addressing questions such as:

  • What are the main developments in the definition of PE in the international environment?
  • Walk though practical examples to demonstrate how the changes related to: (1) fixed place of business, (2) auxiliary and preparatory exceptions, (3) independent and dependent agent, (4) antifragmentation and contract splitting are likely to work in practice and potential risk areas.
  • Assess how PE definition and interpretation may vary by local jurisdiction, taking Poland and Spain as examples to identify the impact this will have on a multinational’s approach to international business.
  • Provide an update on the multilateral instrument as it relates to PE.

Speakers for episode 1 are:

Monica Cohen-Dumani – EMEA ITS Leader
Guillaume Glon – PwC France
Mike Cooper – PwC UK
Agata Oktawiec – PwC Poland
Carlos Concha Carballido – PwC Spain
Please click on the below link to register for the WebEx session.

Registration Link

Complete the required registration fields and select “Submit”.
Once you have registered, you will receive the WebEx access details. The WebEx will be recorded and you will receive a link to the recording via e-mail after the event using the same details. There will be time for questions and answers with your speakers during the WebEx. Questions can also be sent in advance of the
WebEx session to the following email address: grasiele.neves@ch.pwc.com

We do hope that you will join us online!

Best regards
Monica Cohen-Dumani

PwC | Partner, International tax services, EMEA ITS Leader
Office: +41 58 792 9718 | Mobile: +41 79 652 14 77
Email: monica.cohen.dumani@ch.pwc.com
PricewaterhouseCoopers SA
Avenue Giuseppe-Motta 50 | Case postale | CH-1211 Genève 2, Switzerland
http://www.pwc.ch

Swiss Withholding Tax Refund on Equity Finance Transactions: New Decision of the Federal Supreme Court

On 5 April 2017, the Swiss Federal Supreme Court issued a new decision concerning the Swiss withholding tax refund right of an Italian bank that was engaged in a combination of buy-sell and derivatives transactions with shares of Swiss issuers around dividend payment dates. To a large extent, the decision of the Court concentrated on the evaluation of taxpayers’ compliance with the concept of beneficial ownership requirements aimed at assessing whether relevant transactions entered into by the taxpayer constituted the mere setup of a dividend stripping. Subsequently, the Court denied Swiss withholding tax refund claims due to the failure of the taxpayer to provide the Federal Tax Authorities (“FTA”) with the required information for the identification of the counterparties to the relevant trades, considering this a failure of the taxpayer to cooperate since such information is, in the view of the Court (and of the FTA), an essential element of proof within beneficial ownership testing.

Previous jurisprudence

The judgment represents the further evolution of previous cases delivered by the Federal Supreme Court in similar situations, and in particular, with regard to two Swiss withholding tax refund lead cases dealing with Danish Banks (for further details, please see the following blog posts).

Decision of the Federal Supreme Court of 5 April 2017

Relevant facts:

A bank incorporated in Italy entered into a number of buy/sell and derivatives transactions (futures) with Swiss shares. The bank acquired these securities shortly before the dividend payment date and sold them shortly after the dividend receipt. Further to the dividend payments, the Italian bank filed several withholding tax refund requests with the FTA regarding dividends distributions arising from securities held on ex-dividend dates. While the claims were under consideration, the FTA requested the bank provide additional information regarding the transactions, and in particular, to disclose information enabling the identification of the counterparties to the transactions with underlying securities prior and post the dividend payment event.

Because the Italian bank was unable to provide this information, the FTA and the Federal Administrative Court rejected its Swiss withholding tax refund claims.

Federal Supreme Court decision highlights:

In its decision, the Swiss Federal Supreme Court reiterated its jurisprudence regarding the concept of beneficial ownership, and provided the following arguments:

  • The Federal Supreme Court re-established that Swiss withholding tax refund claim eligibility in the context of the application of a double taxation treaty requires that the claimant be the beneficial owner of the underlying income.
  • To qualify as a beneficial owner of income (a dividend in the case in question), the recipient should be free in determining further faith of income received (this means that the taxpayer should not have any contractual or legal obligation to pass on such income to third parties). The notion of beneficial ownership should be considered while taking into account economic circumstances and not just pure tax reasons (such as the attempt of the recipient of the dividend to benefit from a double tax treaty withholding tax reduction). Consequently, the Court mentioned that although the tax savings is effectively not present, this is not relevant for the double tax treaty eligibility analysis, which precluded the line of reasoning that all counterparties involved in the transaction were residing in treaty countries with the same residual Swiss withholding tax rate under the relevant treaty with Switzerland.
  • Moreover, the Federal Supreme Court recalled that Swiss Tax Law imposes information-sharing and cooperation duty on taxpayers. This duty should apply both to resident and non-resident taxpayers, even if the double tax treaty does not have a specific provision in this respect. The Court stated that during the procedure, the FTA may request information and documentation enabling it to appropriately review and assess a Swiss WHT refund claim. The rules are that the requested evidence must not be obviously inappropriate to make the required assessment (i.e., it must be reasonable and offer suitable proof) and should not result in disproportionate costs for the claimant. The absence of cooperation cannot create a comparative benefit for the taxpayer, and will have negative consequences if the case cannot be properly reviewed and assessed by the authorities.
  • The Federal Supreme Court also stated that brokers used in equity finance transactions will not be recognized as counterparties but only as intermediaries, and that it is the claimant’s duty to provide proof of the effective counterparty behind the broker.

After analysing the facts of the case, the Court found that:

  • The taxpayer could not establish its compliance with Swiss beneficial ownership requirements for double tax treaty benefits application purposes just by providing the names of the counterparties effectively involved in the transactions.
  • The FTA may request information and documentation to make a proper assessment of the facts and circumstances of the transaction which resulted in a Swiss WHT claim. The claimant must provide reasonable documentation as part of his information and cooperation duties. These duties are limited by the principle of proportionality, which means that the requested information should neither be obviously inappropriate to make the required assessment nor result in disproportionate costs for the claimant. Of course, these principles are open for legal interpretation and subject to scrutiny.
  • Moreover, the Court ruled that, by not providing the requested information, the Italian bank deliberately hid essential elements of the facts required for the analysis of its transactions by the authorities, meaning non-cooperation was in fact established. Without the documentation by the claimant, the FTA was put in a position where it was impossible to understand the effective flows and structure, or to analyse the claim against the practice established by the Court. Hence, the claimant was forced to face the consequences of the missing proof of its tax mitigating elements.

Further to the above, the Federal Supreme Court concluded that the withholding tax refund should be denied to the Italian bank (only a non-material claim was sent back to the tax authorities for reassessment due to violation of the formal requirements of the procedure).

What does it mean for you?

The new Court decision clearly shows, in line with previous jurisprudence, an overall trend for assessing compliance with beneficial ownership requirements, and for the detailed review of relevant documentation when withholding tax refund claims are filed within the scope of financial services industry transactions. Market participants using brokers in similar transactions will be required to disclose the effective parties behind the broker, which will in practice make it difficult to establish proof.

The recent jurisprudence makes it clear that all cases should be analysed on the basis of individual facts and circumstances, and that outcomes may vary depending on the analysis of transactions.

We encourage you to review present and previous withholding tax claims filed for similar transactions to determine whether any risks are present, and to develop and implement risk mitigating strategies for the future.

Martin Büeler
Partner, Tax & Legal
martin.bueeler@ch.pwc.com
+41 58 792 43 92
Luca Poggioli
Director, Corporate Tax
luca.poggioli@ch.pwc.com
+41 58 792 44 51
Victor Meyer
Partner, Tax & Legal
victor.meyer@ch.pwc.com
+41 58 792 43 40
Dieter Wirth
Partner, Tax & Legal
dieter.wirth@ch.pwc.com
+41 58 792 44 88
Dmitri Deniskin
Director, Tax & Legal
dmitry.deniskin@ch.pwc.com
+41 58 792 8258

EUDTG Newsletter March – April 2017

EU direct tax law is a fast developing area. This presents taxpayers, in particular groups and multinational corporations that have an EU or European Economic Area (EEA) presence, with various challenges.

The following topics are covered in this issue of EU Tax News:

CJEU Cases

  • Belgium: CJEU judgment on interpretation of the subject-to-tax requirement of the Parent-Subsidiary Directive: Wereldhave
  • Belgium: AG Opinion on interest deduction limitation in light of the Parent-Subsidiary Directive: Argenta
  • Germany: CJEU referral on the German CFC rules: X

National Developments

  • Belgium: Supreme Court does not allow withholding tax refunds for dividends received by investment companies before 12 June 2003
  • Belgium: CJEU referral by the Commission of Belgium over the discriminatory tax treatment of foreign real estate income
  • Finland: Supreme Administrative Court confirms tax treatment of dividend income from third countries to be in line with Articles 63 and 65 TFEU
  • Italy: Amendments to the NID and Patent Box Regime
  • Norway: Government’s response to ESA’s decision on the compatibility of the Norwegian interest limitation rules with the freedom of establishment
  • Poland: Supreme Administrative Court judgment on the settlement of foreign branch losses
  • Spain: Supreme Court judgment on State aid recovery procedure
  • United Kingdom: England and Wales High Court judgment regarding repayment of stamp duty reserve tax: Jazztel plc v The Commissioners for HMRC
  • United Kingdom: The Great Repeal Bill White Paper

EU Developments

  • EU: European Parliament clears way for formal adoption of ATAD II by the ECOFIN Council
  • EU: Update on EU proposal for public country-by-country reporting
  • EU: Council adopts conclusions on EU relations with the Swiss Confederation
  • EU: Informal ECOFIN Council held in Malta in early April

Fiscal State aid

  • Greece: CJEU judgment on State aid implemented by Greece: Ellinikos Chrysos AE
  • Italy: CJEU judgment on Italian bankruptcy procedure: Marco Identi

Read the full newsletter here.

This EU Tax Newsletter is prepared by members of PwC’s international EU Direct Tax Group (EUDTG).

Further information about our service offerings in EU taxes: www.pwc.com/eudtg

Event series − VAT in ERP systems: how does it challenge IT, the Tax Administration and tax experts?

Register Online to our upcoming series of events on VAT in ERP systems: how does it challenge IT, the Tax Administration and tax experts?

ERP systems are often not equipped to handle the complex requirements of VAT correctly, flexibly and efficiently without extra work or manual intervention.

The legal requirements are constantly changing, and on the basis of the OECD guidelines many countries are exchanging data or demanding evermore detailed information from taxpayers. Organisations are well on the way to transparency.

At these events we’ll be discussing the views of our clients, looking at the different needs of the IT and tax functions, and finally sharing some insights from the Tax Administration.

The aim of the events is to talk about experiences and needs, learn from each other, and build ‘best practice’ together. If required this dialogue can be continued afterwards within our “ITX ERP Support Community”. In the beginning, the questions and the coordination of the same language in the cooperation of the tax and IT department are at the company’s disposal. Our discussions will revolve around the issues that organisations face and creating a common language enabling the tax and IT functions to work together.

Have we piqued your interest? We look forward to welcoming you to one of our discussions.

The dates are planned as follows:

Zurich

  • Wednesday, 31 May 2017, 4.30 pm registration / welcome drink
  • 5.00 pm start, 6.00 pm end, followed by an apéro and individual discussions and questions
  • PricewaterhouseCoopers AG, Birchstrasse 160, 8050 Zurich

Berne

  • Tuesday, 6 June 2017, 4.30 pm registration / welcome drink
  • 5.00 pm start, 6.00 pm end, followed by an apéro and individual discussions and questions
  • PricewaterhouseCoopers AG, Bahnhofplatz 10, 3001 Berne

Geneva

  • Thursday, 15 June 2017, 4.30 pm registration / welcome drink
  • 5.00 pm start, 6.00 pm end, followed by an apéro and individual discussions and questions
  • PricewaterhouseCoopers AG, Avenue Giuseppe-Motta 50, 1211 Geneva
  • This event takes place in English. To discuss your questions, local PwC colleagues will be at your disposal

Basel

  • Thursday, 22 June 2017, 4.30 pm registration / welcome drink
  • 5.00 pm start, 6.00 pm end, followed by an apéro and individual discussions and questions
  • PricewaterhouseCoopers AG, St.Jakobs-Strasse 25, 4002 Basel

The detailed programme has been published on our website www.pwc.ch/vat-erp. We are looking forward to your registration.

If you have any questions, please get in touch with your usual PwC contact person or one of the experts below

Your contacts

Ilona Paakkala
Director
ITX Technology Leader
Tel. +41 58 792 42 58
paakkala.ilona@ch.pwc.com

Sandra Wirz
Senior Manager
ITX ERP Support Responsible
Tel. +41 58 792 25 32
sandra.wirz@ch.pwc.com

EUDTG Newsletter January – February 2017

EU direct tax law is a fast developing area. This presents taxpayers, in particular groups and multinational corporations that have an EU or European Economic Area (EEA) presence, with various challenges.

The following topics are covered in this issue of EU Tax News:

CJEU Cases

  • Netherlands: CJEU judgment on pro-rata personal deductions for non-resident taxpayers: X
  • Netherlands:  CJEU judgment on the application of Article 64 (1) TFEU concerning the extended recovery period for foreign assets: X

    National Developments
  • Belgium: New Innovation Income Deduction replaces the Patent Income Deduction
  • Finland: Supreme Administrative Court confirms withholding tax treatment for non-UCITS and non-listed Maltese SICAV
  • Hungary:  Hungarian implementation of ATAD’s CFC rules
  • Italy: Italian Tax Court of First Instance judgment on the compatibility of withholding tax levied on dividends distributed to a US pension fund with EU law
  • Sweden: Swedish Supreme Administrative Court judgments on the denial of refund of Swedish withholding tax
  • Switzerland: Corporate Tax Reform III rejected by the Swiss voters
  • United Kingdom: Supreme Court judgment in R (on the application of Miller and another) v Secretary of State for Exiting the European Union

EU Developments

  • EU: ECOFIN Council agreement on ATAD II
  • EU: European Parliament Resolution of 14 February 2017 on the annual report on EU competition policy
  • EU: Public CBCR: European Parliament’s joint ECON & JURI Committee issues draft report
  • EU: EU Member States send letter to non-EU 92 countries in context of common EU list of non-cooperative tax jurisdictions
  • Spain European Commission requests Spain to amend its law implementing reporting obligations for certain assets located outside of Spain

Fiscal State aid

  • Luxembourg: Non-confidential version of the European Commission’s State aid opening decision in GDF Suez
  • Spain: AG Opinion on tax exemptions for Church-run schools

Read the full newsletter here.

This EU Tax Newsletter is prepared by members of PwC’s international EU Direct Tax Group (EUDTG).

Further information about our service offerings in EU taxes: www.pwc.com/eudtg

Legal certainty concerning import value in Switzerland reestablished – Assessment of 100 million swiftly overruled by the Federal Supreme Court

In understanding of the business impacts, the Federal Supreme Court clarified the uncertainty on determination of the import VAT value for foreign companies involved in supplies of goods to Switzerland resulting from the recent decision of the Federal Administrative Court.
Click here to download the PDF

Background

A., a purchasing company of C. group established outside of Switzerland, however registered for Swiss VAT purposes, was acquiring goods from foreign third party suppliers. The goods were shipped to a Swiss warehouse of A. from where those were subsequently sold to C. (a Swiss established and VAT registered distribution company of the C. group), or other third party customers.

For customs clearance, the import value of the goods declared by A. was based on the price invoiced by the foreign suppliers to A. (i.e. on the purchase price). Further to their investigation, the Swiss Federal Customs Authorities (“SFCA”) claimed that A. underestimated the import VAT base, which should have been the sales price to C. minus 10%.
Click here to download the PDF
In the first instance, the Federal Administrative Court (“FAC”) also denied determination of the import VAT value of the goods based on the price paid by the (foreign) importer to its foreign suppliers and supported the post-assessment of the SFCA of 100 mio CHF import VAT and almost 1 mio late interests. The position of the Court was held on slightly different grounds than the one of SFCA. The FAC ruled that (i) the transaction with foreign suppliers occurred already abroad as the importer had the power to dispose of the goods abroad since he was in charge of the transport of goods to Switzerland and therefore the purchase price paid by A. should not have been determinant for the import value, and (ii) it should have then been the market value, which however in the view of FAC corresponded to the value paid by the final Swiss customer to third party suppliers minus 10%. Thus in practice, FAC actually accepted for the case at hand that the value should have been the sales price to C. minus 10%, which was the original position of SFCA.

Decision of the Federal Supreme Court

The Federal Supreme Court (“FSC”) overruled in its decision 2C_1079/2016 issued on 7. March 2017, the decision of the FAC. In this surprisingly short period after the first instance decision, FSC held that the transaction relevant for the determination of the import VAT value is the transaction which led to the import, i.e. the price paid by A. to its foreign suppliers and clearly not the market value related to the subsequent transaction with C, as at the moment of the import the contract with the final customer was not yet in place.

Click here to download the PDF

The FSC ruled that the fact who is the person in charge of the transport (i.e. supplier v. importer) has no impact on identifying the transaction relevant to determine the import VAT value of goods. Indeed, the FSC considered that the import value should be based on the agreement which gave rise to the transaction leading to import and that the transport is only a modality of the execution of the agreement.

The Court also considered that the characteristic feature of the purchase was the acquisition of goods abroad intended for sale in Switzerland and therefore the final destination was already known at the time of purchase from A to their suppliers. Consequently, based on article 54, al.1, let. a of the Swiss VAT law which provides that import value is the consideration where goods are imported under sales or commission agreement (and not the market value), the Court ruled that such consideration is the purchase price paid by A. to its foreign suppliers.

This decision removes the uncertainty resulting from the previous position of Customs Authorities in this case and following decision of the FAC, and confirms our standpoint on this subject matter. Fortunately, the Federal Supreme Court brought back the clarity into operations of many businesses, which is not only in line with the Swiss VAT law but also with the international standards. The FSC decision removes a certain inequality between foreign and Swiss based importers and gives necessary comfort to (foreign) companies involved in similar supply chain scenarios for the purpose of their customs reporting obligations. Companies importing goods in Switzerland for further sale via their local stock should ensure that their reporting is in line with this final decision of the FSC. The federal customs, as well as tax authorities will now need to review their practice and amend written guidelines in order to align with the legal grounds.

Download the PDF by clicking the image below:
Click here to download the PDF

 

Please contact our team for more details:
Patricia More, Partner, Indirect Tax, PwC Geneva
patricia.more@ch.pwc.com / +41 58 792 95 07

Christina Haas Bruni, Senior Manager Customs & VAT, PwC Basel
christina.haas.bruni@ch.pwc.com / +41 58 792 51 24

Kristyna Kaniova, Manager, Indirect Tax, PwC Geneva
kristyna.kaniova@ch.pwc.com / +41 58 792 92 34

Hans-Frederic Andersen, Senior Consultant, Indirect Tax, PwC Geneva
andersen.hans-frederic@ch.pwc.com / +41 58 792 91 97

Fixed establishment: Welmory – A never ending story

The Supreme Administrative Court in Poland ruled yesterday on the Welmory case. Even though the case went through Court of Justice of the European Union (CJEU, C-605/12) back to the final instance in Poland – nothing seems certain whatsoever. Many would have expected the court following CJEU argumentation and probably confirming existence of fixed establishment in Poland. This, however, turned out not to be the case.

Click here to download the PDF

Based on oral announcement of the court, both District Administrative Court’s judgement (previous instance) and tax authorities’ decision have been repealed. According to the Supreme Administrative Court the tax authorities must supplement the decision by factual evidences as to whether the technical infrastructure in Poland is actually allowing to claim creation of fixed establishment (FE). The dossier of the case does not include evidences proving existence of FE in Poland, as it seems the tax authorities did not bring forward sufficient investigation in this area. Therefore, in order to preserve the two-instance separation rule, the Supreme Administrative Court cannot judge upon it. In turn, the court decided to return the case back to tax authorities for further investigation.

Such outcome means for Welmory that the proceedings are not over yet. It raises a question of taxpayer’s rights in light of extensive timing of proceedings. As the original decision reaches as far as 2011 and the ultimate conclusion still being remote, one can question the quality of protection of taxpayer’s right to certainty of law.

Even though at first glance it may feel disappointing that the verdict was not rendered as per the principles of when a fixed establishment is being created, but focused on procedural deficiencies – it actually brings new perspective into the whole area. The aspect of evidences and proving existence of sufficient infrastructure.

In light of the developments in Poland it may be sensible to anticipate any potential fixed establishment discussions, by for instance preparing so-called defense file. Comprehensive documentation outlining factually the existing setup, aligned with global tax policy and drafted outside of hectic tax audit, can prove helpful. Especially as yesterday’s Welmory judgement brings more emphasis on the need for tax authorities to actually prove sufficient levels of infrastructure to claim existence of a fixed establishment. Such exercise may be particularly valid in industries being more and more part of the Digital Economy, where the brick and mortar physical aspects are taken over by the importance of significant digital presence, remote management and IT infrastructure.

We are looking forward to deeper analysis of our colleagues from PwC Poland, together with whom we are closely monitoring the developments in Poland.

We will keep you updated on the subject matter.

In the meantime, you can contact us for more details and download the PDF here:
Click here to download the PDF

 

Patricia More, Partner, Indirect Tax, PwC Geneva
patricia.more@ch.pwc.com / +41 58 792 95 07

Bozena Turek, Manager, Indirect Tax, PwC Geneva
bozena.turek@ch.pwc.com /+41 79 742 54 81

Financial services businesses may not be eligible for the European Cost Sharing exemption – opinion of the Advocate General in DNB Banka (C-326/15) and Aviva (C-605/15)

Summary

The Advocate General (“AG”) issued its opinion on the application of the cost-sharing exemption (“CSE”) provided by article 132(1)(f) of the VAT Directive in two cases regarding financial services providers (i.e. banks and insurance companies). The opinion of the AG is not in line with the position of the EU Commission and the discussions in various meetings of the VAT Committee in 2010, 2014 and 2015 and it also appears not to be in line with the pending infringement procedures of the EU Commission against Luxembourg (C-274/15) and Germany (C-616/15).

Cost Sharing Exemption

The CSE allows businesses to come together and pool resources as a means of sharing these resources between each other free of VAT (as opposed to procuring services externally with VAT) on the grounds that these resources are directly necessary for the activities of the members of the cost-sharing group. In order to benefit from this exemption, the group needs to consist of entities engaged in VAT-exempt or non-taxable activities and the supplies need to be made by the group to the members at cost.

Currently, the majority of the EU member states allow the application of the CSE to financial services businesses.

Position of the AG

  • The CSE should apply to services supplied by the group to its members and not vice versa (i.e., the contribution of resources by the members of the group to the group (to the pool) is not VAT-exempt).
  • The members eligible for the application of the CSE are companies/bodies acting in the public interest (this excludes financial services businesses).
  • The CSE is only applicable to services supplied between the group and its members established in the same EU member state (i.e., the CSE cannot apply on a cross-border basis).

Potential implications

We anticipate that the impact on the financial services sector will be significant if the Court of Justice of the European Union (“Court”) decides to follow the opinion of the AG. Specifically, the cost of the procurement of services for the benefit of the whole group will be higher (because of irrecoverable VAT). This would mean that financial services businesses would have to consider other available options to manage the VAT costs on the shared services and/or resources. One of the options could be a set-up of a cost-pooling arrangement (cost-contribution arrangement as per chapter VIII of the OECD guidance 2010) to pool resources that are mutually beneficial for all participants and to share the costs of the benefits that each participant derives from the pool. Another option could be to undertake a detailed review of the services supplied between the members to confirm whether they could benefit from the local VAT exemptions.

For the present, we must wait to see if, and to which extent, the Court agrees with the AG’s opinion. However, please do not hesitate to contact us if you would like to discuss the above.

Contacts:

Tobias Meier Kern
Director Indirect Taxes
tobias.meier.kern@ch.pwc.com
+41 58 792 4369

Marcella Dzienisik
Senior Manager Indirect Taxes
marcella.dzienisik@ch.pwc.com
+41 58 792 4938

 

Assessment of 100 million due to incorrect import value confirmed by the Swiss court

Companies involved in supplies of goods to Switzerland should check their Swiss customs reporting further to a recent case of the Federal Administrative Court on determination of the import VAT value.

Swiss Federal Court VAT Decision - March 2017

Background

A., a purchasing company of C. group established outside of Switzerland, however registered for Swiss VAT, was acquiring goods from foreign third party suppliers. The goods were shipped to a Swiss warehouse of A from where those were subsequently sold to C. (a Swiss established and VAT registereddistribution company of the C. group), or other third party customers.

Swiss Federal Court VAT Decision - March 2017

For customs clearance, the import value of the goods declared by A. was based on the price invoiced by the foreign suppliers to A. (i.e. on the purchase price). Further to their investigation, the Swiss Federal Customs Authorities (“SFCA”) claimed that A. underestimated the import VAT base, which should have been the sales price to C. minus 10%.

Position of the Federal Administrative Court

The Court held in its decision A-2675/2016 dated 25 October 2016, that the purchase price paid to the foreign suppliers by A. was not relevant to determine the import VAT value. This was due to the fact that the transport from abroad was partially supported by A., which means the latter already abroad had the power to dispose of the goods and therefore the transaction with the foreign suppliers should no longer be relevant to determine the import VAT value. The Court also held that the import value could not be the value of the sale from A. to C. since the transactions were occurring after the import, and storing the goods in the Swiss warehouse of A. The Court then, however concluded that the import value should be the market value that C. would pay.

According to article 54, al.1, let. g of the Swiss VAT law, the market value is the price to be paid to an independent supplier in the country of origin. A. was therefore convinced that the imported value declared was in line with the Swiss VAT law. However, the Court held that the price to be considered is not the one that A. paid to the supplier in the country of origin of the goods, but the price that C. would have paid to third-party suppliers in this country for similar goods. On this ground, and to the extent that the Court considered that it could not be determined which price would be paid by C. in the country of origin, it held that the SFCA were entitled to consider that indeed such price would be the price paid by C. to A. minus 10%, according to deductive method developed in the Swiss Federal Tax Authorities’ guidelines which however do not have binding character. Thus, the initial position of the SFCA was confirmed by the court even though based on different arguments.

This decision resulted in an adjustment of more than CHF 100 million and late payment interest of CHF 924,854 for A.

Swiss Federal Court VAT Decision - March 2017

Outcome

We are of the opinion that neither the position of the Court nor the deductive method developed by the Swiss Federal Tax Authorities in their guidelines are in line with the Swiss VAT law or with the Customs administrative guidelines which only refer to the price paid by the importer in such case.

It could also be inferred from the reasoning of the Court that the deductive method would not be applicable in case exclusively the foreign suppliers would be handling the transport of the goods up until the Swiss warehouse of the recipient.

As the company was fully entitled to deduct input VAT, and due to the fact that customs duties in Switzerland are calculated based on weight of the imported goods, the valuation of the VAT import value had no impact on A’s liability as such. The main impact of the decision is however the late payment interests arising from the adjustment performed by the SFCA which has been confirmed by the Court and do amount to a substansive cost for A.

An appeal has been lodged against the decision, and as the position held by the Federal Administrative Court could be considered as not in line with the Swiss VAT law, we can only hope that the Federal Supreme Court will not confirm this controversial judgement of the Federal Administrative Court.

Recommended action

Companies importing goods from abroad to their Swiss warehouses, from where subsequent sales to Swiss customers are carried out should review their practice in order to assess the potential risk and monitor further developments. Provided that the Federal Supreme Court confirms the position of the SFCA, such businesses would notably be impacted if they are involved in the transport of the goods.

Download the PDF by clicking the image below:

Swiss Federal Court VAT Decision - March 2017

Please contact our team for more details:

Patricia More
Partner, Indirect Tax, PwC Geneva
patricia.more@ch.pwc.com
+41 58 792 95 07

Kristyna Kaniova
Manager, Indirect Tax, PwC Geneva
kristyna.kaniova@ch.pwc.com
+41 58 792 92 34

Hans-Frederic Andersen
Senior Consultant, Indirect Tax, PwC Geneva
andersen.hans-frederic@ch.pwc.com
+41 58 792 91 97