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Article:

No more treaty shopping

25 March 2019

Many global shipping companies face increased tax bills following coordinated international anti-avoidance measures. These now address the practice of ‘treaty shopping’ – benefiting from tax relief available under double tax treaties without real commercial justification.

The measures stem from the OECD’s Base Erosion and Profit Shifting (BEPS) initiative to combat tax avoidance. Countries are signing up to a multilateral convention – known as the ‘Multilateral Instrument’ or ‘MLI’ – under which they commit to implementing tax treaty-related measures to prevent BEPS.

Once any two countries have ratified the MLI, the double tax treaty between them will be amended. Three possible options are available for ratifying the MLI and preventing double tax treaty abuse, although most countries have so far adopted a Principal Purpose Test (PPT). In this case, treaty relief will no longer be available if it’s reasonable to conclude that obtaining the benefit was one of the principal purposes of any arrangement or transaction that resulted directly or indirectly in that benefit. Where countries have taken up the other MLI options, which involve either a simplified or detailed Limitation of Benefits (LOB) clause, objective tests will be applied to determine whether treaty relief is available.

These rules are aimed at structures that were set up to minimise tax. For example, funds may have been routed through a conduit company located in a particular jurisdiction in order to ensure there is no withholding tax on any intra-group interest payments. Alternatively, a holding company may have been included in a structure in order to minimise or eliminate withholding tax on dividends. In such scenarios, the company receiving the payments may have little or no commercial substance or purpose.  

In a shipping context, a company may have been set up to charter in vessels from a connected company and charter them out to a third party, with the intention of avoiding or reducing withholding tax on charter hire income or freight tax. The way such structures are taxed in the future will depend on factors including:

  • The extent to which the conduit company has a commercial purpose and commercial substance
  • Whether the relevant countries have signed up to the MLI
  • What MLI options the relevant countries have chosen.

Example

Consider a multinational ship-owning group that has set up a UK resident company in order to enter into back-to-back charters. This UK company acts as a conduit with little or no commercial purpose and with the sole aim of eliminating freight or withholding tax on charter hire receipts from the third party charter under a UK double tax treaty.

The UK has signed up to the MLI using the PPT option. If the charterer is resident in a country that has also signed up to the MLI choosing the PPT option, treaty relief is likely to be denied. The tax authorities are likely to determine that obtaining treaty benefit was one of the principal purposes of entering into the back-to-back charter. If one of the countries has opted for an LOB test, other details may be considered, although the result is likely to be the same. However each structure will need to be considered in detail.

Where such a structure involves a company resident in the UK or an EU member state after June 2018, it may be reportable to the local tax authority from July 2020 under the DAC6 EU rules on disclosure of cross-border tax avoidance schemes. Read more.

Other structures may also fail to meet tax authorities’ new requirements for treaty relief. It is, therefore, important that multinational shipping groups review their structures to consider how they – and the group’s tax position – may be affected.

If you require further information, please contact Sue Bill.

Read more on Base Erosion and Profit Shifting (BEPS)