International Fiscal Association Asia-Pacific Regional Conference Substance over form Chairman: Chang-Hee Lee, Seoul National University (Korea) Seoul (Korea) – 12 May 2016

Panel Members Chi Chung, Academia Sinica (Chinese Taipei) Shefali Goradia, BMR Advisors (India) Viktor Matchekhin, Linklaters (Russia) Pasquale Pistone, IBFD (Italy) Anand Raj, Shearn Delamore & Co. (Malaysia) Ji-Hyun Yoon, Seoul National University (Korea)

I - Introduction

Substance over form: anti-avoidance measures, or GAARs General (GAARs), targeted or sectoral (TAARs), ad hoc or specific (SAARs) Our focus is only on GAARs, meant as a synonym of anti-avoidance rule  Interpretation vs. application  Statutory vs. judicial Our focus

 Substance over form clauses and factual recharacterisation: Cyprus, Czech Republic, Estonia, Finland, Hungary, Netherlands (also richtige heffing), Poland, Romania, Slovakia  Abuse of law GAAR: Austria, Belgium, Bulgaria, Denmark, France, Germany, Greece, Ireland, Italy, Luxembourg, Malta, Portugal, Spain, UK  Fraus legis GAAR: Croatia, Netherlands (judicial)  TAAR: Sweden  No statutory GAAR, but application of private law: Latvia, Lithuania, Slovenia  Judicial approach prevailing: France, Netherlands  Last GAARs introduced in: 2013 Greece and UK, 2015 Denmark and Italy Approaches to tax avoidance in EU MSs: an overview

LaSalle & Private Law Approach Facts of the LaSalle case -Plaintiffs: UK limited partnerships (LPs) interested in investing in commercial buildings located in Seoul -The Seoul buildings are securitized, i.e. shares of the ABS company are acquired and transferred by investors. -UK LPs set up intermediary companies in Luxemburg and Belgium.

LaSalle & Private Law Approach UK LPs being “pooling” entities LU SARLs set up for tax-free distribution from BE SCAs BE SCAs set up for avoidance of Korean domestic law taxing gains from real property company shares Two UK LPs Two LU SARLs Two BE SCAs KO ABS company

Quick round of comments

II - Private Law Approach

India : Lifting of Corporate Veil A company has separate identity from its members Indian Courts have pierced the corporate veil in following circumstances:  Where the statute itself contemplates lifting of corporate veil  Where fraud or improper conduct is sought to be prevented  Where a taxation statute or a welfare legislation is sought to be evaded  Where corporate is opposed to justice or public interest  Where the transaction is a sham

LaSalle & Private Law Approach Private law approach v. Tax law approach -To tackle avoidance, necessary to disregard legal forms taken by taxpayers, but how? -In Japan & Korea, traditional reluctance to disregard legal forms based on such abstract terms as “substance” -If the transaction is void even in terms of private law (i.e. simulation or sham), the relevant legal forms are safely disregarded.

LaSalle & Private Law Approach Pros of Private Law Appr. One can benefit from discussions and case law in private law area which has long been established and is considered as more stable. More predictability? Cons of Private Law Appr. Tendency of courts to deviate from long-established legal doctrines to disregard legal forms engaged more easily in tax-related cases. In reality, not much difference?

LaSalle & Private Law Approach LaSalle in private law approach One needs to disregard corporate form as void to reach its shareholder(s) Possibility of “lifting of corporate veil” recognized for corporate law purposes Whether corporate form under foreign law can be disregarded as void is not clear Korean courts could arguably have lifted corporate veil relying on private law approach in LaSalle case (although they did not)

LaSalle & Private Law Approach Thoughts on private law approach Under-inclusive if one adheres strictly to private law doctrines Not much difference once one deviates from private law doctrines Whether courts can “lift corporate veil” under private law approach cannot reach an unequivocal conclusion.

III - Tax Law Approach

III.1 - Judicial GAARs

Russia: judicial GAAR early 1990s: ATTEMPTS TO USE PRIVATE LAW AGAINST TAX AVOIDANCE 1998: CONSTITUTIONAL COURT INITIATED A BONA FIDE TAXPAYER CONCEPT : A BONA FIDE TAXPAYER CONCEPT IS WIDELY USED BY TAX OFFICE SINCE 2006: HIGH ARBITRAGE COURT INITIATED THE UNJUSTIFIED TAX BENEFIT CONCEPT

Russia: judicial GAAR Tax benefit: Reduction of tax liability on the basis of reduction of tax base, receipt of tax deduction or refund, tax relief, application of lower tax rate

Russia: judicial GAAR Tax benefit may be treated as unjustified when: a taxpayer records operations against their economic substance or its operation is not based on reasonable grounds (business purpose) physical impossibility of a counterparty to perform a contract main business purpose of a taxpayer is based only or primary on a receipt of tax benefit

Quick round of comments

India: Judicial GAAR  Tax planning within the boundaries of law is legitimate -use of colourable device not permitted  Pre-ordained transaction (i.e. transactions structured primarily for tax evasion) to be disregarded  Tax treaties should be respected  ‘Look At’ rather than ‘Look through’ – Legal nature of entire transaction as a whole to be considered; dissecting approach not to be adopted  Holistic approach – following illustrative factors are relevant: Period of business operation Duration of holding structure Generation of taxable revenues during operation of structure Timing of exit Continuity of business on exit

India: Judicial GAAR Vodafone International Holdings vs Union of India Hutch Telecommunication International Ltd (‘HTIL’) Hutch Telecommunication International Ltd (‘HTIL’) Vodafone International BV (‘Vodafone’) Vodafone International BV (‘Vodafone’) CGP Investments Limited (‘CGP’) Hutchison Essar Limited (‘HEL’) India Intermediate holding companies Mauritius Netherlands Cayman Islands Share Purchase Agreement (‘SPA’) for shares of CGP 100% Direct and indirect shareholding in HEL - 52% 3 Global Services Private Limited Options to acquire 15% in HEL Issue Whether capital gains arising from sale of shares of CGP are taxable in India? Supreme Court held:  Indian tax authorities have no jurisdiction to tax an offshore transaction  Separate legal existence of corporate structures ordinarily to be respected  If the company is interposed as a device to evade tax, then the real transaction is to be taken into consideration  Situs of shares would be the place of incorporation of company and place of transfer but not where the underlying assets of company are situated

McDowells vs CTO  Tax planning may be legitimate – if within the framework of law  Use of dubious methods to avoid tax is impermissible Union of India vs Azaadi Bachao Andolan  An attempt by a taxpayer to take advantage of tax treaties is not illegal  Treating intermediate legal steps non-existent on hypothetical assessment of ‘real motive’ is impermissible Vodafone International Holdings BV vs Union of India  Special Purpose Vehicles (SPVs) and Holding Companies have a place in legal structures in India  Burden on Revenue authorities to allege and establish abuse / tax avoidance in the creation and / or use of structure by Holding companies  Revenue can invoke 'substance over form principle' or ‘piercing corporate veil' test only if transaction is a sham or entered into only for tax avoidance India: Judicial GAAR Key Takeaways

Substance-over-form turning into a GAAR A 2012 Supreme C. landmark decision So-called Rodamco decision adopted tax-law approach (as opposed to private law approach). Two subsidiaries each holding 50% of Korean real property company shares are disregarded to impute 100% shares to the parent for local acquisition tax purposes. Two tests: inconsistency between form and substance & tax avoidance purpose

Substance-over-form as GAAR Supreme Court relied on Rodamco Doctrine in deciding LaSalle Belgian and Luxemburg entities were all found to be inconsistent with economic substance and interposed for tax avoidance purposes. Own significance in that the Court clearly stated that domestic substance-over-form principle is applicable in treaty interpretation.

III.2 – Statutory GAARs

India: GAAR  Statutory GAAR to become effective from April 1, 2017  Applicability Impermissible avoidance arrangement Main purpose of arrangement to obtain tax benefit Lacks commercial substance/ results in misuse of Act Deemed to lack commercial substance if place of residence has no substantial commercial benefit  Relevant factors (not sufficient) - period of arrangement (including operations), payment of taxes, exit route provided by the arrangement  If GAAR invoked Tax Treaty override Disregarding / recharacterisation of transaction place of residence/ situs of asset or transaction may be restated  Investments made before April 1, 2017 grandfathered Clarity required:  Relevance of Tax Residency Certificate  Treaties with LOB clause – whether GAAR will apply  GAAR v. SAAR

Substance-over-form as statutory GAAR Discussion on substance-over-form during the 2000s resulted in enactment of a new provision. The new provision gave the tax authorities power to disregard legal form based on economic substance. The relevant test: legal form as “a method of receiving unjust benefits”? What is meant by “unjust benefit”?

Substance-over-form as statutory GAAR “Where it is recognized as a method of receiving unjust benefit pursuant to this Act or tax-related Acts, such as an indirect method through a third party or a method of involving two or more activities or transactions, this Act or tax-related Acts shall apply as if the relevant parties have made a direct transaction or have conducted an activity or transaction in succession, according to the economic substance of such activity or transaction.”

Substance-over-form as statutory GAAR Supreme court rendered its 2012 Rodamco decision knowing that this new GAAR would apply to later cases. The new provision may be interpreted in the same way as using the same two-prong test. Form inconsistent with economic substance and tax avoidance motive

Substance-over-form as statutory GAAR The holding of LaSalle will likely withstand under the new GAAR-like provision. Holding company structure unlikely to be adversely affected by the new provision Outcome in the “in-between” case? Much will depend on the facts of the specific case and subjective views of the tax officials and, eventually, judges.

Malaysian GAAR – History & Developments Malaysia was a former colony of the UK & follows the common law. UK & Commonwealth decisions are highly persuasive. In DGIR v. Rakyat Berjaya Sdn. Bhd. (1984), the Malaysian Supreme Court held: “There is nothing wrong at all for a company to organise its affairs in such a way as to minimise tax.” This follows the Duke of Westminster’s case 1936, HL, (UK) – indicative of form over substance…?

Substance over Form – Ramsay & Rawling (HL,UK) 1981 Lord Wilberforce:- “The scheme consists, …, of a number of steps to be carried out, documents to be executed, payments to be made, according to a timetable, in each case rapid.... In each case two assets appear, like particles in a gas chamber with opposite charges, one of which is used to create the loss, the other of which gives rise to an equivalent gain which prevents the taxpayer from supporting any real loss, and which gain is intended not to be taxable. Like the particles, these assets have a very short life. Having served their purpose they cancel each other out and disappear.” “At the end of the series of operations, the taxpayer’s financial position is precisely as it was at the beginning, except that he has paid a fee, and certain expenses, to the promoter of the scheme.... it is candidly, if inevitably, admitted that the whole and only purpose of each scheme was the avoidance of tax.” “...The capital gains tax was created to operate in the real world, not that of make-belief.”

The Malaysian GAAR:- Section 140(1) of the Income Tax Act 1967:- The DGIR may, without prejudice to the validity of any transaction, disregard or vary such transaction and make such adjustments as may be necessary where he has reason to believe that such transaction has the direct or indirect effect of: altering the incidence of tax relieving any person from liability evading or avoiding any duty or liability hindering or preventing the operation of the Act in any respect

Sabah Berjaya Sdn. Bhd. v. DGIR [2000] *broad discretionary language of S. 140(1) is subject to judicial supervision - applied C.I.R. v. Challenge Corp Ltd [1986] STC 548 (JCPC)(NZ). *Gifts of money to Sabah Foundation were held to be deductible by the Court of Appeal as there was no tax avoidance. In the early Malaysian case of SBP Sdn Bhd v. DGIR (1985), the Special Commissioners took the view that the DGIR’s exercise of Section 140(1) was “not an all purpose weapon for all seasons” but was subject to judicial review and supervision; … The Malaysian GAAR, continued:-

Challenge Corp -Challenge was a member of a group of companies which bought the whole issued share capital of Perth Property Developments Ltd. (“Perth”) (from an unrelated group of companies) for the higher of: (a)$10,000/-; or (b)a sum equal to 22½% of the amount of a tax loss incurred by Perth (prior to Challenge’s acquisition), if such loss is allowed for deduction. Apart from the opportunity to utilise Perth’s tax loss to its advantage for the purposes of obtaining a form of group tax relief, the shares in Perth were worthless.

Ibraco–Peremba Sdn Bhd [2015] – Court of Appeal, Malaysia -The above line of UK cases were considered at length by the Malaysian Court of Appeal in construing the Malaysian GAAR -The CA referred to Ramsay and held that in looking at a tax avoidance scheme which comprised of specific transactions, the genuineness of the transaction should be looked at as a whole. -Arthur Andersen’s advisory letter was taken as indciative of a preordained series of transactions, albeit over 9 years. (In Malaysia, advisories from/communications with law firms are privileged but this does not extend to cover accounting firms.) -The Revenue’s use of the GAAR was upheld by the Court.

UBS and DB Group [March, 2016] - UK Supreme Court “First, “tax is generally imposed by reference to economic activities or transactions which exist… 'in the real world‘”. Secondly, tax avoidance schemes commonly include “elements which have been inserted without any business or commercial purpose but are intended to have the effect of removing the transaction from the scope of the charge.” The SC further approved of Furniss and held: “Where a purposive construction so requires, one can proceed … in the manner described by Lord Brightman in Furniss v. Dawson: “....Precisely how the end result will be taxed will depend on the terms of the taxing statute sought to be applied.””

III. 3 GAARs - what is the real world experience? Round of comments

IV. GAARs - The relation between domestic law and treaties

The Vienna Convention on the law of treaties Selected articles Article 26: Pacta sunt servanda Article 27: Internal law and observance of treaties vs Article 31: General rule of interpretation Article 32: Supplementary means of interpretation

Articles 26 and 27 VCLT Article 26 Every treaty in force is binding upon the parties to it and must be performed by them in good faith. Article 27 A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.

Article 31 VCLT 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

Article 31 VCLT 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any agreement which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

Article 31 VCLT 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties 4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32 VCLT Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

Comments by a IFA general reporter (Zimmer, 2002) Based on the principle of freedom of contract, the point of departure generally is that the taxpayer is free to arrange his affairs as he wishes in order to save taxes. Based on the principle of legal security, he should also be able to trust that the transactions which he has legally entered into will be respected by the tax authorities and the courts. However, the strict adherence to legal form may increase legal certainty but may on the other hand frustrate equality and efficiency in taxation.

Comments by a IFA general reporter (Zimmer, 2002) Thus, general tax anti-avoidance rules are a necessary part of modern income tax systems. The challenge is to find the balance between the regard for legal security on the one hand and equity and efficiency in taxation on the other.

Canadian experience (van Weeghel, 2010) The GAAR applies to transactions that misuse or abuse a treaty and, where necessary, overrides treaties. The taxpayer in the Antle case tried to avoid Canadian tax on the alienation of shares by disposing of these shares tax free to a Barbados trust created for the benefit of his spouse. The trust then sold the property and claimed that the gain was not taxable pursuant to the Barbados-Canada tax treaty.

Canadian experience (van Weeghel, 2010) The court found that the trust had not been legally created and the shares not transferred, but also ruled that even if that were different, the transactions could not be given their intended tax consequences pursuant to the GAAR. The court found that the object, spirit and purpose of the domestic provision were to tax the gain when the property would leave the marital unit and then considered that the spirit and purpose of the Barbados-Canada tax treaty did not conflict with the domestic provision.

The Chinese Taipei GAAR In tax cases in Chinese Taipei, the courts may disregard actual transactions but not on the basis of the private law sham theory. Chinese Taipei has a statutory GAAR, enacted on April 28, It codifies t he substance-over-form doctrine longstanding in Chinese Taipei. The interpretation of all tax-related law has to take into account statutory t exts, legislative purposes, and economic substance. The tax authority bears the burden of proof for all statutory requirements for the assessment of a p articular tax.

The Chinese Taipei GAAR The courts of Chinese Taipei use the GAAR, not the tax-purpose sham theory. The GAAR of Chinese Taipei states that the interpretation of all tax- related law has to take into account statutory texts, legislative purposes, and economic substance. Subjective intent for tax avoidance, business purpose, and/or activities other than tax avoidance, artificiality, and abnormality are not elements of the GAAR of Chinese Taipei.

The Chinese Taipei GAAR The GAAR of the Chinese Taipei applies to treaty cases. As it codifies the substance-over-form doctrine longstanding in Chinese Taipei, it may apply even where the applicable treaty entered into effect before the statutory GAAR As the GAAR of Chinese Taipei may be considered a matter of statutory interpretation (interpretation of tax-related law), a taxpayer may propose to rely on such a principle to disregard the actual transactions he or she undertook. The taxpayer has to communicate such a proposal to the tax authority. The tax authority of Chinese Taipei is obliged to follow the letters of the tax statutes, but is also obliged to ensure that tax statutes are applied fairly and without grave consequences unintended by the legislature.

Quick round of comments

V – Recent and pending EU developments

 Judicial reaction to tax avoidance (= abusive practices) developed at interpretation level by the European Court of Justice as justification to violations of fundamental freedoms by EU Member States  Landmark cases: Halifax (VAT), Cadbury Schweppes (direct tax)  National tax law may include statutory and judicial GAARs, but their application requires that the reaction to actual abusive practices complies with the principle of proportionality (case-by-case analysis)  In harmonised taxes (e.g. VAT) there is an obligation to counter abusive practices, in non-harmonised ones (direct taxes) there used to be a right to counter abusive practices only insofar as affecting internal market, but trend is now to move towards an obligation Statutory & judicial GAARs at national and EU level

Article 1 (2) Parent-Subsidiary Directive (implemented as of ) 2. Member States shall not grant the benefits of this Directive to an arrangement or a series of arrangements which, having been put into place for the main purpose or one of the main purposes of obtaining a tax advantage that defeats the object or purpose of this Directive, are not genuine having regard to all relevant facts and circumstances. An arrangement may comprise more than one step or part. 3. For the purposes of paragraph 2, an arrangement or a series of arrangements shall be regarded as not genuine to the extent that they are not put into place for valid commercial reasons which reflect economic reality. 4. This Directive shall not preclude the application of domestic or agreement-based provisions required for the prevention of tax evasion, tax fraud or abuse. Example of GAARs in EU direct tax directives

 EU MSs pursue full implementation of BEPS reports  Common implementation through supranational EU law enhances level-playing field within the Internal Market, but shifts powers  BEPS implementation requires international tax coordination to effectively counter tax avoidance and aggressive tax planning  Tax avoidance and aggressive tax planning share a friction between form and substance aimed at obtaining tax advantages, but are two different phenomena, also from the perspective of the internal market  EU Recommendation 8806 of 6 December 2012: taking advantage of the technicalities of a tax system or of mismatches between two or more tax systems for the purpose of reducing tax liability through double deductions or double non-taxation The EU and the implementation of the BEPS project

Tax avoidance and aggressive tax planning Three elements: 1.Friction between form and substance to obtain tax advantage (causal link with internal inconsistency) 2.Purely artificial transactions lacking valid economic reasons 3.Intention to avoid tax duly reflected in objective elements Generally reflecting existence of abusive practices Three elements: 1.Exploitation of cross-border tax disparities to obtain bilateral tax advantages (causal link with external inconsistency) 2.Misalignment between taxing powers and value creation 3.Unintended tax advantages from double non-taxation No abusive practice in one tax system Tax avoidanceAggressive tax planning

The measures announced on 28 January 2016 COM 23 – the Anti-BEPS tax package and its underlying policy COM 24 – the EU external tax strategy Recommendation 271 – PPT GAAR in tax treaties and PE definition COM 25 – broadening the scope of automatic EoI on CbC reporting COM 26 – EU Anti-BEPS Tax Directive 1.Interest limitation (Article 4) 2.Exit taxes (Article 5) 3.Switchover (Article 6) 4.EU GAAR (Article 7) 5.CFC (Articles 8-9) 6.Anti-Hybrid rule (Article 10) Pure soft lawDraft legislation

CEN and hidden tax protectionism in relations with non EU States  More than pursuing level playing-field within the EU internal market  Switchover produces quasi-automatic compensation of tax differentials (statutory rate <40% EU country) in third countries only (including EEA!): it stretches taxing powers of EU country on income sourced elsewhere, possibly not in line with the BEPS goals of aligning taxing powers with value creation  NB – The EU Parliament report of 1 March 2016 extended this measure also to intra-EU relations  May for active business income carve-out be enough?  Includes CFC rules that comply with CJEU definition (thus away from the partly wholly artificial arrangement concept of BEPS Report on AI 3!) Critical points in the EU implementation of BEPS

1.Non-genuine arrangements or a series thereof carried out for the essential purpose of obtaining a tax advantage that defeats the object or purpose of the otherwise applicable tax provisions shall be ignored for the purposes of calculating the corporate tax liability. An arrangement may comprise more than one step or part. 2.For the purposes of paragraph 1, an arrangement or a series thereof shall be regarded as non-genuine to the extent that they are not put into place for valid commercial reasons which reflect economic reality. 3.Where arrangements or a series thereof are ignored in accordance with paragraph 1, the tax liability shall be calculated by reference to economic substance in accordance with national law The proposed GAAR in the Draft EU Anti-BEPS Directive

 LoB clauses: EU Commission issues on reasoned opinion on NL-JPN DTC and impact on fundamental freedoms  Several GAARs and possible difference in PPT standards  Recommendation 271: "Notwithstanding the other provisions of this Convention, a benefit under this Convention shall not be granted in respect of an item of income or capital if it is reasonable to conclude, having regard to all relevant facts and circumstances, that obtaining that benefit was one of the principal purposes of any arrangement or transaction that resulted directly or indirectly in that benefit, unless it is established that it reflects a genuine economic activity or that granting that benefit in these circumstances would be in accordance with the object and purpose of the relevant provisions of this Convention." LoB, PPT and tax treaties of EU States

 Adoption of EU Anti-BEPS package or parts already in May 2016  Reaction to tax avoidance in relations with EU States is very complex due to:  Existence of multiple GAARs in EU tax directives or otherwise indicated by soft EU law  Existence of non-homogeneous GAARs, TAARs and SAARs in national tax law  Strong risk for legal uncertainty and tax arbitrage in the presence of non-homogeneous reaction to tax avoidance and aggressive tax planning (BEPS à deux vitesses)  Implementation of BEPS project by the EU is in fact being used as a tool for countering tax avoidance with stricter unilateral measures to third countries, which are not applicable to intra-EU relations Possible EU Developments

Concluding Remarks

 Substance over form and factual recharacterisation: Chinese Taipei, India (new, not yet in force), Korea  Abuse of law GAAR: Malaysia  Fraus legis GAAR: Chinese Taipei  TAAR: Korea  No statutory GAAR, but application of private law: India (now)  Judicial approach prevailing: Russia India (so far) respects the form to a greater extent, but the trend may be changed Malaysia (in treaty cases) possibly follows a similar approach Approaches to tax avoidance in Asia-Pacific: an overview

 Different expressions are used by national law and are differently perceived in theory and practice  Different origins of different GAARs  Substance over form – tax law  Abuse of law – private law  Fraus legis – roman law, then private law  Private law nullity  Respect of form  Substance over form approach and abuse of law share two elements:  Presence of artificial transactions  Mainly entered for tax avoidance reasons  Global trend towards convergence in the reaction to tax avoidance Our view

Chairman: Chang-Hee Lee, Seoul National University (Korea) Chi Chung, Academia Sinica (Chinese Taipei) Shefali Goradia, BMR Advisors (India) Viktor Matchekhin, Linklaters (Russia) Pasquale Pistone, IBFD (Italy) Anand Raj, Shearn Delamore & Co. (Malaysia) Ji-Hyun Yoon, Seoul National University (Korea) Thank you