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Focus on the Anti-Avoidance Provision Targeting Hybrid Debt Instruments




by:
Lodewijk P.W. Berger
Lyda Stone
Jones Day - Amsterdam Office

Raymond J. Wiacek
Jones Day - Washington Office

 
May 15, 2014

Previously published on May 2014

The 2014 Finance Law has implemented yet another limitation of the deductibility for tax purposes of interest payments made by a French borrower to an affiliated entity (i.e., an entity controlled by the borrower, controlling the borrower, or controlled by the same third party as the borrower), this time targeting more specifically cross-border hybrid debt instruments ("Anti-Hybrid Provision" or "AHP").

The AHP is applicable to fiscal years closed as from September 25, 2013, and may thus have an immediate impact on the corporation tax returns to be filed (and the corresponding corporation tax liability to be paid) during the upcoming months.

In essence, interest payments made by a French borrower to an affiliated entity will be deductible for tax purposes only if such borrower is able to demonstrate that the lender (be it French or foreign, even though the provision was clearly designed to target cross-border hybrid debt instruments) is subject to an income tax on the corresponding interest income that is at least equal to 25 percent of the French corporation tax that would have been due had it been computed in accordance with standard French rules ("25 Percent Test"). Specific rules are also provided where the lender is a flow-through entity such as an investment fund or a partnership ("Look-Through Rule").

Given its broad language and the lack of precise guidance within the parliamentary reports and debates that have preceded its enactment, many issues are likely to arise with respect to the scope of the AHP, the operation of the 25 Percent Test, and the reach of the Look-Through Rule. The guidelines to be published by the French tax authorities are thus eagerly awaited.

25 Percent Test. The main uncertainties pertaining to the AHP revolve around the 25 Percent Test and the way the comparison of the tax liabilities (i.e., the actual tax liability of the lender on the one hand and its theoretical liability under French standard rules on the other hand) will operate. While the 25 Percent Test is at the heart of the AHP, there is no unequivocal indication as to whether the comparison basis should be:

  • The gross amount of the relevant interest payment;
  • The net amount of the relevant interest payment and its repayment, if any, by the lender (e.g., in case of a back-to-back financing arrangement);
  • The net amount of the overall interest payments received and made, if any, by the lender; or
  • The overall taxable result of the lender (i.e., in order to apply every single French tax rule as if the foreign lender was a French tax resident).

While the language of the AHP itself offers little guidance, certain parliamentary debates seem to indicate that the first option (i.e., based on the gross amount) should be followed. Its main upside would be its simplicity, but it would substantially hurt the efficiency of the anti-avoidance motivation behind the AHP. Another upside would be the correspondingly reduced declarative burden, since the taxpayer is the one bearing the 25 Percent Test burden. There is, however, no guarantee that such option will be followed by the French tax authorities or by courts.

A more conservative approach would lead to the fourth option (i.e., full analysis of the overall tax situation of the lender), which could turn out to be particularly burdensome with respect to both (i) the computation to be made by the taxpayer in order to determine whether the AHP is applicable, and (ii) the demonstration to be provided by the taxpayer.

Other issues, furthermore, stem from the uncertainty among those four possibilities. For instance, what should be the relevant comparison in the situation where the borrower and the lender have different fiscal year starting/closing dates? Likewise, how should financing arrangements—whereby interest payments are either deferred (e.g., deep discount instruments) or subject to a specific accounting or tax treatment—be treated in terms of timing, at the level of the lender (i.e., the overall interest income pertaining to the financing arrangement would satisfy the 25 Percent Test but, by virtue of specific accounting or tax timing rules, the 25 Percent Test would not be satisfied for a given fiscal year)? Although some general French tax principles could provide some guidance, the guidelines to be published by the French tax authorities will have to be closely reviewed in this respect.

In the end, any of the three latter possibilities would most likely allow for the AHP to catch—in addition to cross-border hybrid debt instruments whereby payments would be deductible in France but exempt in the lender's jurisdiction—the following:

  • Back-to-back financing arrangements whereby payments would (i) be deductible in France, (ii) comply, on a gross basis, with the 25 Percent Test in the lender's jurisdiction, but (iii) effectively leave a marginal tax base in such jurisdiction by being eventually up-streamed to a third low-tax jurisdiction (thereby failing the 25 Percent Test on a net basis), and
  • Financing arrangements placed under a specific accounting or tax regime as described above.

Look-Through Rule. In essence, the Look-Through Rule provides that, where the lender is a flow-through entity such as an investment fund or a partnership, (i) the AHP limitation applies only to the extent that the borrower and the relevant members of the flow-through entity are affiliated entities, and (ii) the 25 Percent Test is applied at the level of such members.

This being said, the AHP does not cover double-tier structures where the lender would be a flow-through entity wholly held by another flow-through entity. Should the Look-Through Rule then be applied at each level? Should it rather be read strictly so that the first flow-through entity in the chain would be regarded as shielding the ultimate lender from the AHP?

Beyond the uncertainties surrounding the 25 Percent Test itself (see above), the guidelines to be published will also have to address the operation of the AHP in cases where several relevant members of the lending flow-through entity are (i) affiliated to the borrower but (ii) in different situations for AHP purposes (i.e., one satisfying the 25 Percent Test but not the other, because of a different location or a different tax regime despite the same location). Should the deduction of the relevant interest payments then be denied for corporation tax purposes on a combined basis? Should it rather be prorated on the basis of the participation of the sole affiliated entity failing the 25 Percent Test?

Overlap with CFC Legislation. The French CFC rules basically provide that the relevant portion of the profits of an enterprise, company, or entity are taxable in France in the following situations:

  • If an entity subject to French corporate income tax operates an enterprise outside France or holds, directly or indirectly, 50 percent or more of a company or entity established outside France, and
  • If such enterprise, company, or entity benefits from a so-called privileged tax regime.

Consequently, there is a possible risk that the AHP overlaps with such CFC rules in the case where a non-French lender would not satisfy the 25 Percent Test, but whose profits would ultimately be taxable in France under the aforementioned CFC legislation.

Although it has been confirmed by the Budget Minister during the parliamentary debates that the purpose of the AHP was not to catch amounts already caught by the CFC rules, precise details will be expected from the guidelines to be published by the French tax authorities.

Hybrid Entities. Even though it was not the official motivation of the initial proposal, nor the apparent intention of the Parliament, the language of the AHP could effectively result in encompassing hybrid entities (i.e., a same entity being a corporation for tax purposes in a jurisdiction, and a partnership or a disregarded entity for tax purposes in another).

Indeed, in the case where the French borrower (be it a net borrower or an on-lender of the amounts borrowed) would be disregarded for tax purposes under the tax rules applicable in the jurisdiction of the lender, the AHP could technically kick in as the 25 Percent Test would be regarded as not being satisfied (i.e., if the borrower is disregarded, then the relevant borrowing itself should be disregarded, and it would just not be possible to satisfy the 25 Percent Test).

As the AHP does not provide for any safe harbor or tiebreaker, taking into account the tax regime applicable in the other jurisdictions involved in the 25 Percent Test comparison, one may wonder to what extent the guidelines to be published by the French tax authorities will at all address the situation of hybrid entities.

Coordination with Foreign Anti-Hybrid Provisions. While the vote of the AHP was clearly intended to support the recent OECD and European Commission propositions related to the so-called mismatches of hybrid finance instruments, the French unilateral approach based on a denial of the interest deduction now appears to create serious risks of double taxation.

Indeed, aforementioned multilateral propositions instead aim at denying the benefit of a participation-exemption regime for dividends at the level of the lender (or, rather, financing provider) ("PE-Based Approach") where the dividends so received have given rise to a deduction at the level of the borrower, since the relevant payments could be regarded as interest payments.

As a result, the confrontation of the AHP with a legislation following the PE-Based Approach (e.g., the German anti-avoidance rule targeting hybrid debt instruments) could give rise, for the same payment, to (i) a denial of the deduction at the level of the French borrower, and (ii) a denial of the participation-exemption regime at the level of the lender.

As the AHP does not provide for any safe harbor or tiebreaker in the case where the other jurisdiction involved in the 25 Percent Test comparison has adopted a PE-Based Approach, one may wonder to what extent the guidelines to be published by the French tax authorities will at all address the double taxation risk.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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Author
 
Lodewijk P.W. Berger
Lyda Stone
Raymond J. Wiacek
Practice Area
 
Finance
Taxation
 
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