Out of the arbitration and litigation labyrinth

Get the winning edge with the right support

Some legal situations require more outside consultation than others. Commercial disputes can involve a range of counterparties, including suppliers, competitors, subcontractors, shareholders, lenders and business partners, as well as current or former employees. In such complex cases, high-quality, objective advice can make the difference between winning and losing. The knowledge, independence and experience our specialists bring to the proceedings will weigh in your favour.

Who we are

In some cases it takes several years for the situation to escalate in a possible dispute, during which time many things may change within an organisation. Employees leave the company, taking away knowledge which may be crucial to your case – making it difficult to reconstruct the events that took place. To get to the facts of the case, we pick through accounts and underlying records, sift through electronic data, analyse documents and conduct interviews. Our integrated team includes forensic accountants, financial analysts, technology experts, valuators, M&A specialists, economists, engineers, compliance officers, fraud examiners, and former regulators and members of law enforcement.

Case study: an international venture turned sour

Our client, a Swiss company, bought into an overseas venture with links to the local ruling family as the shareholders. Prior to investing, the company did a feasibility study which rated the investment as an excellent opportunity to enter a new market. The initial SPA provided for significant financial support from the local shareholders.

Read more here.

CJEU ruled warranties provided by third parties to be VAT exempt

On 16 July 2015 the Court of Justice of the European Union (CJEU) delivered a judgment in the Mapfre case (C-584/13) regarding the VAT characterization of warranties covering mechanical breakdowns provided by the parties not involved in the sale of the cars.

Background

Mapfre Warranty SpA (Mapfre) offered warranties covering a mechanical breakdown of second-hand cars. These warranties were offered to the purchasers by independent car dealers selling the second-hand cars. The dealers collected the premium and passed it on to Mapfre.

Specifically, once the purchaser decided to take out the additional warranty, he was supplied – in return for an additional payment – with a warranty booklet in the name of Mapfre. In the event of a mechanical failure, the purchaser was able to take the car to a garage of his choice, which provided an estimate of the costs to Mapfre. Once the estimate had been accepted by Mapfre, the garage repaired the car and charged Mapfre for its work.

In order to hedge the risk against a financial loss arising from Mapfre warranty’s obligation to cover the repair costs of the vehicles for which the warranty booklet was issued, Mapfre re-insured its risk with an associated company. On the basis that it did not have a contractual relationship with the purchaser of the second-hand vehicle (i.e. the warranty was offered by the car dealers), Mapfre took the view that the car dealers simply commissioned it to perform the above obligations. As a result of this, Mapfre warranty treated its services as normal supplies of services subject to VAT.

However, the French tax authorities considered the warranties to be insurance transactions for VAT purposes which should have been treated as exempt from VAT and subject to French insurance tax. 

Judgment

The Court of Justice of the European Union (“CJEU”) ruled that Mapfre’s services should be regarded as VAT exempt insurance transactions. This conclusion was made on the basis that:

(a)    the insurer was an economic operator independent of the car dealer;

(b)   the insured person was the purchaser of the second-hand car;

(c)    the insured risk constituted the cost of the repairs that the purchaser would need to pay in the event of a mechanical failure of its car which Mapfre committed to cover;

(d)   the payments made by the purchasers constituted a lump-sum;

(e)    the insured person was not allowed to receive a refund if the cost of repairs during the warranty period was lower than the price of the warranty;

(f)     the insured person was not obliged to make any further payment if the cost of repairs exceeded the price paid for the warranty.

Specifically, relying upon the principle of the fiscal neutrality, Mapfre claimed that its services should be treated identically to additional warranties offered by car dealers as those traders are regarded as offering after-sales services that are subject to VAT. However, the court denied to address this point as it was not included in the request for a preliminary ruling.

Additionally, the court did not agree with Mapfre’s further argument that the warranty is so closely linked to the sale of the car that is should follow the VAT treatment of the sale of the car.

Impact on businesses

The above judgment appears to impact retailers’ extended warranties that are issued by third parties which are not currently treated as insurance transactions. Retailers offering warranties that are provided by the parties independent to them should review their position in order to confirm whether they fall within the scope of the above judgment.

For further information, please contact your usual PwC advisor.

Contacts

Know your international VAT specialists

Greece – Voluntary Disclosure Programme expected by November 2015

On 14 August 2015, the Greek Parliament voted on the EUR 86bn bailout deal followed by the approval of the Eurogroup finance ministers the same day. Based on the underlying memorandum of understanding, the measures will also include actions to fight tax evasion. In particular, the Greek authorities are to produce a comprehensive plan for combating tax evasion by November 2015 including the introduction of a voluntary disclosure programme with appropriate sanctions, incentives and verification procedures, consistent with international best practice, and without any amnesty provision.

We will shortly publish a more comprehensive publication highlighting the most important tax reform measures as well as more details on the voluntary disclosure programme once available.

Please also have a look at our upcoming event on 22 September 2015.

Previous publications

Greek Draft Bill on Voluntary Disclosure of Undeclared Taxable Income

New Greek Tax Law Introduces Rules on the Deductibility of Corporate Expenses

PwC has a specially dedicated team of experts dealing with the above voluntary disclosure programme allowing for swift and cost efficient processing.

Should you have any questions, please contact your usual PwC contact or:

Marcel Widrig
Partner, Tax & Legal
marcel.widrig@ch.pwc.com
+41 58 792 44 50
Anna-Maria Widrig Giallouraki
Senior Manager, Tax & Legal
anna-maria.widrig.giallouraki@ch.pwc.com
+41 58 792 42 87
Simone Heinrich
Senior Manager, Tax & Legal
simone.heinrich@ch.pwc.com
+41 58 792 42 65
Sophie Limbioul
Manager, Tax & Legal
sophie.x.limbioul@ch.pwc.com
+41 58 792 81 83

Beyond the tipping point: private wealth in a transparent world

“Tax transparency? Information exchange? White money? What does this mean for me and my family’s wealth?” These are the all too familiar questions and concerns being voiced by private clients. How should you respond to these concerns? How do changes impact your relationships with clients?

To address these crucial questions, we are pleased to invite you to our seminar Beyond the tipping point: private wealth in a transparent world on 22 September 2015. This practical seminar focuses on the transition of private clients to a tax compliant environment. This workshop is intended for practitioners dealing with Swiss and foreign international private clients, including private bankers, relationship managers, asset managers, trustees, wealth planners, fiduciaries and lawyers who want to discuss the impact of changes from a client’s point of view.

In addition to hot topics such as automatic information exchange and tax transparency, we have structured, individual deep-dive sessions dedicated to specific issues in focus countries, which include Russia, Kazakhstan and Ukraine, China, Turkey, Greece and Switzerland. In these sessions we will cover topics such as restrictions applicable to current and prospective private clients, specific threats in selected markets, as well as strategies for ensuring your clients remain tax compliant.

We look forward to welcoming you on 22 September 2015.

Please register here.

News on IFRS: July/August 2015

Our latest IFRS news contains some information about revenue recognition, pension accounting requirements and revenue recognition.

IASB proposes clarifications to IFRS 15

The IASB has proposed amendments to IFRS 15 in some of the areas discussed by the TRG. These areas include accounting for licences, principal versus agent guidance and practical expedients on transition. The proposed amendments differ from those suggested by the FASB. Sallie Deysel from Accounting Consulting Services brings us up to speed on the ED.
Read more…

IASB issues ED on pensions

Richard Davis from Accounting Consulting Services brings us up to speed on the new Exposure Draft proposing amendments to IAS 19 and IFRIC 14.
Read more…

Revenue TRG weighs in again on IFRS 15 implementation issues

The Revenue Transition Resource group (TRG) continues to debate implementation issues related to the new revenue standard.
Read more…

Cannon Street Press

  • Insurance and IFRS 9
  • IFRS Implementation Issues
  • Fair value Measurement
  • IFRS 3 post implementation review
  • Financial Instruments with characteristics of equity

Read more…

IFRS rejections in short – IAS 2

Yelena Belokovylenko of Accounting Consulting Services examines the practical implications of IFRIC rejections related to IAS 2.
Read more…

Are you interested in more regular updates?

In brief – A look at current financial reporting issues

IFRS in brief

  • Consequences of the Greek financial crisis
    Read more…
  • Accounting for priority review vouchers (pharma industry)
    Read more…

Update Free Trade Agreements in Asia – Regional Comprehensive Economic Partnership

Newspapers in Europe including Switzerland talk about TPP (Trade Pacific Partnership) and TTIP (Transatlantic Trade and Investment Partnership). Swiss based companies are well advised to follow the discussions about TTIP (negotiating parties are the U.S. and the EU) since it will have an impact on the future trade landscape. Anyway, a post on those topics will follow later.

There is little information to read in the newspapers about the Regional Comprehensive Economic Partnership, short RCEP. RCEP will be an important Free Trade Agreement for Swiss and European companies doing business or manufacturing activities in Asia. For the ones looking to expand to Asia and define a strategy to enter into Asia it may as well be of high importance. The RCEP aims for a harmonisation of Rules of Origin, which currently differs in each different FTA the ASEAN members (Association of Southeast Asian Nations: Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam) have concluded with its trading partners Australia / New Zealand, China, India, Japan and South Korea. Amongst many other topics, RCEP aims to reduce non-tariff barriers as well as sanitary and phyto-sanitary measures and Technical Barriers to Trade.

Negotiations on RCEP started in November 2012 with nine rounds of negotiations. The last one took place in Nay Pyi Taw, Myanmar, between the 3rd and 7th August 2015 and the 10th round will take place next October in South Korea.

As TPP negotiations were not concluded end of July in Hawaii, the RCEP is gaining more importance. Why?

The RCEP is perceived as a counteraction of China against the US-led TPP negotiated between Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the U.S. RCEP countries account for 45 per cent of the world population. The aim is to finalise the agreement by the end of this year although the deadline might be pushed to 2016.

The ambition to come up with a “high-end mega-FTA” is not a priority for all negotiating partners. Where Australia wants customs duty cuts on over 90 per cent tariff lines, India has a different view. India is reluctant to offer too high tariff reductions and the domestic industry is against giving more access to goods from China. According to the latest information, India decided to offer 80 to 85 per cent of tariff lines for duty cuts to South Korea and Japan, 70 to 75 per cent tariff lines to ASEAN and about 40 to 50 per cent to China, Australia and New Zealand. Because of this, the RCEP loses some of the initial expected impacts. Still, RCEP will facilitate and enhance trading activities in the Asian region. It is therefore crucial for Swiss and European companies to carefully analyse future opportunities for doing business in Asia.

Further information click here.

EUDTG Newsletter 2015 – nr. 004 (May – June 2015)

This EU Tax Newsletter is prepared by members of PwC’s international EU Direct Tax Group (EUDTG). If you would like to receive future editions of this newsletter, or wish to read previous editions, please refer to: www.pwc.com/eudtg.

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

CJEU Cases

  • France: AG Opinion on cross-border distributions of profits and non-deductible charges relating to the holding: Groupe Steria SCA
  • Germany: CJEU Judgment on the tax treatment of participations in “black funds”: Wagner-Raith
  • Germany: CJEU Judgment on exit taxation in case of transfer of assets from a German partnership to its Dutch PE: Verder LabTec
  • Netherlands:  AG Opinion on possible discriminatory treatment of foreign shareholders receiving dividends from a Dutch source: Miljoen, X and Société Générale
  • Sweden: CJEU Judgment on deductibility of FOREX losses in cross-border situations: X AB

National Developments

  • Finland: Recent developments with respect to Finnish Fokus Bank claims for non-UCITS SICAVs
  • Germany: Final Fiscal Court judgment on the DMC case
  • Italy: Provincial Tax Court rules that withholding tax levied on dividends distributed to a US pension fund is incompatible with EU law, orders refund
  • Italy: Supreme Court allows Tax Court appeals regarding the denial of access to the EU Arbitration Convention
  • United Kingdom: Court of Appeal allows compound interest claim in relation to overpaid VAT
  • United Kingdom: Clawback of UK shale aggregate waste relief

EU Developments

  • EU: European Commission presents Action Plan for fundamental reforms of business taxation in the EU
  • EU: 6-monthly ECOFIN Report to the European Council on Tax Issues
  • EU: Luxembourg EU Council Presidency tax priorities for July-December 2015
  • EU: June ECOFIN Council debates on mandatory AEOI / tax rulings and recast of Interest & Royalties Directive
  • EU: Mandate of EU Parliament’s TAXE special committee on tax rulings extended

Fiscal State aid  

  • Belgium: European Commission publishes non-confidential version of its decision to investigate the Belgian excess profit regime
  • EU: European Commission takes next step in its EU-wide State aid review of tax ruling practices

Read the full Newsletter here.

Should you have any questions, please contact your usual PwC contact or me.

Cloud computing: harnessing the opportunities and managing the risks

Cloud computing is an essential part of the ‘digital revolution’ driving sweeping changes through society and the way enterprises operate, and a huge opportunity for organisations of all sizes. To some the risks may appear daunting, but there’s plenty of good guidance available to successfully negotiate the path to the cloud.

Topics of this article

  • Compelling reasons for the cloud
  • The cloud in action
  • The real benefits of the cloud
  • What about the risks?
  • Help is at hand!

Read more

Summary

The cloud is already revolutionising the way business is done throughout the private and public sectors. There are risks, but all of them are manageable. Some are already well understood, and comprehensive best practice guidance is available. Other challenges simply have to be worked through carefully – but again, support is available. The most important thing is to see the cloud as part of the big picture: as an enabler that allows organisations to dynamically reconfigure their supply chain to deliver value more intelligently and effectively. Ultimately, can you afford not to be in the cloud?

Outsourcing for SMEs: corporate support services

Small and medium-sized businesses (SMEs) have been working with accountants and fiduciaries regularly for many years. With the emergence of new business models and the trend to outsourcing administrative functions, the role of the traditional accounting firm is changing. Some have evolved to become experts in providing support services, managing and running integrated financial functions, IT systems and service processes.

Topics of this article:

  • Many aspects to consider when outsourcing
  • Complex HR processes

Read more

Summary

The role of the traditional accountant-fiduciary is changing. While not everyone in the profession is following the trend, some larger firms in the accounting and fiduciary industry have already established themselves as providers of outsourcing services (corporate support services). They do this by enabling their clients to reduce the burden of time-consuming administrative processes and rationalise repetitive financial functions by transferring them to a shared service centre (SSC). In many cases these clients are less interested in cost savings than in profiting from targeted technical, legal and process expertise.

Reputable firms offering outsourcing services do much more than just making electronic platforms available. Besides the know-how and expertise they provide, a particular benefit is that they manage the risks entailed in outsourcing processes. Companies outsourcing processes shouldn’t make the mistake of assuming that ‘out of sight’ means ‘out of mind’. Client/provider relationships tend to function well, for example, if the client appoints a contact to take responsibility for supplying the provider with the necessary information.

Outsourcing and offshoring finance functions

Large companies started delegating financial functions to external providers a long time ago. In recent years, more and more small and medium-sized enterprises have also been outsourcing their financial processes. This is a decision with strategic implications that can only be made properly on the basis of a well thought-out business case.

Topics of this article:

  • Nearshoring for SMEs
  • Pressure on costs and margins
  • Concentrating on core competencies
  • Operational readiness
  • Strategies for implementation

Read more

Summary

There are various reasons why the trend towards shared services remains unbroken, with no end in sight: time and margin pressure, the desire and necessity of concentrating on core competencies while farming out as much of the rest as possible, and the need to maximise operational readiness.

Now that an increasing number of highly specialised service providers are offering shared services for many different small companies rather than just large organisations, outsourcing has become an interesting proposition for SMEs as well as big players. Since SMEs can rarely afford internal centralised shared services, nearshoring is generally more feasible than farshoring.

It’s important to bear in mind that processes at SMEs are often not as mature or standardised, meaning they’re only suitable candidates for outsourcing if the business case has been thought through properly.

SMEs in particular have to be aware that the processes set in motion by outsourcing have major implications in terms of culture change. If management fails to explain the intentions behind outsourcing clearly, they run the risk of losing staff with the best labour market profile who can find a new job most easily.

There are signs of imminent consolidation among providers of shared services to SMEs; they too have to go for volume, and providers who don’t have the critical mass won’t be able to compete.