By Anne Friberg
Tax authorities globally are cracking down on profit shifting and centralized funding setups. The mandate for treasury is clear: consistency, justification and documentation.
The Organisation for Economic Co-operation and Development’s base erosion and profit shifting (BEPS) 15-point action plan from 2013 seemingly opened the gates for a global crackdown on tax-efficient structures, and its latest manifestation is the US Treasury’s Section 385 rules that are now being mulled over and expected to be finalized in September. Their primary objective is to prevent inversion deals designed to move a US-domiciled corporation to a lower tax jurisdiction via a merger with a non-US entity. However, in its current form, Section 385 casts a very wide net that touches uncomfortably on intercompany funding. This has corporate treasurers worried not only for their interco loan portfolio, but also their liquidity management structures.
Targets of Section 385 include intercompany funding vehicles that can be deemed equity like, and associated cash flows that appear more distribution like, e.g., dividend like, and the rules give the US tax authorities a way to recategorize them as equity, and they are therefore not tax deductible. Treasurers suddenly faced with dealing with the impact of Section 385, and BEPS generally, may take a lesson or two from treasury centers and finance subsidiaries that are structured as Swiss branches of a Dutch company, for example. A member of The NeuGroup’s European Treasurers’ Peer Group (EUROTPG) noted that Swiss tax authorities questioned the company’s intercompany funding structures as early as after the financial crisis, specifically challenging the funds transfer pricing to borrowing entities.
TIME FOR A FUNDS TRANSFER PRICING TEAM?
The two schools on intercompany interest rates could be characterized as “one size fits all” and “tailor made.” The former is usually a “Libor+” rate that is consistently applied to all subs with few exceptions. The latter is a prevailing local market rate topped with a credit charge based on the creditworthiness of the individual subsidiary, to mimic what the entity could borrow at locally at arm’s length, without the parent’s help. Needless to say, the latter is more complex and time-consuming to administer, and it is BEPS and Section 385 that the rules are targeting. As a result, companies need to beef up their capacity for analyzing their subsidiaries’ credit standing and be prepared to review and document the rate-setting decisions on an annual basis.
TAKE INVENTORY OF YOUR INTERCOMPANY LOANS
On a recent webinar with NeuGroup members across multiple peer groups, participants agreed that a first step in response is to take inventory of all intercompany loans and their terms and conditions, and if needed, tighten them up to comply, with particular focus on interest rate and tenor as well as documentation of the justification for the loan (not always specified, according to some on the call). The latter will separate loans from working capital and liquidity management funds that are often held in cash pools.
ARE POOLS TOXIC? WHAT’S WORKING CAPITAL AND WHAT IS NOT?
In its broadest interpretation, cash pools seem to be in the Section 385 cross-hairs (notional pools are already “toxic” because of Basel III, according to some while others say that’s BMG envy), but many practitioners are optimistic that reason will prevail and the most draconian implementation will not come to pass, leaving liquidity structures like pools unharmed. Nevertheless, treasury needs to be able to demonstrate and track a justifiable level of working capital and intercompany transactions that are part of the normal course of business, to justify their “protected status” compared to other intercompany financing transactions. Depending on the treasury management system in place, much of this may be automated over time.
TAX AUTHORITIES DON’T COMMIT ANYMORE
According to a NeuGroup member based in Switzerland, Dutch tax authorities are increasingly reluctant to commit to paper any agreement about acceptable entity structures, which means treasury may be confronted with abrupt changes in official attitude about their setups. The same may extend across Europe. This ups the onus on MNCs to fully stand by their entity structure, funding rates and loan justifications and they must keep documentation updated, clear and consistent.
Looking ahead
Companies are already taking note of the BEPS-related impact on the financing options they consider. This puts a damper on the enthusiasm for centralized funding via a dedicated finance entity; with increased scrutiny on intercompany transactions, some are actively opting to use external funding for purposes previously funded via intercompany loans, and raising “funds where they are needed,” for acquisitions, for example. But this requires resources to deal with external fundraising, road shows in new geographies and the like. And even if the internal focus is more on working capital needs and liquidity management, it still requires monitoring of arm’s-length transfer pricing. Regardless, be prepared to spend more time and resources to justify and document your corporate-wide funding choices.