First Step for Implementation of the EU’s Anti-Tax Avoidance Directive
The Finnish Government has today issued a government proposal on new limitations to the deductibility of interest expenses implementing the interest limitation rules of the EU’s Anti-Tax Avoidance Directive (2016/1164).
Compared to the draft government proposal which was published in January this year, the new proposal is in some aspects more lenient and addresses some of the concerns raised earlier in public consultation. The most significant changes are the introduction of the so-called grandfathering rule as well as the re-introduction of the current balance sheet exemption and a financial industry exemption.
Nevertheless, the new interest limitations significantly expand the scope of the currently applicable rules. Additionally, many uncertainties remain with respect to the interpretation and the exact implications of the newly proposed rules.
Limitations to the Deductibility of Interest
The proposed rules expand the scope of application to cover both new types of taxpayers and a wider range of interest payments.
The key characteristics of the new limitation rules can be summarized as follows:
- The deductibility of net interest expenses would remain generally limited to 25% of EBITD (taxable business profit added with interest expenses, tax depreciations, and net group contributions);
- the general threshold of EUR 500,000 would still apply, but a new safe harbor threshold of EUR 3,000,000 would be introduced in relation to net interest expenses on third party debt;
- the definition of interest is broadened to cover considerations such as guarantee fees;
- the limitations would also apply to interest paid to third parties, such as interest on bank loans;
- the limitations would apply to all Finnish resident corporate taxpayers, and also companies taxed under the Income Tax Act, such as real estate companies, that are excluded from the application of the current limitation rules;
- however, the new rules include a grandfathering rule that excludes third party loans concluded before 17 June 2016 from the scope of application;
- the exclusion available for financial institutions; and
- the current balance sheet test exemption remains.
The new rules will indirectly increase the cost of debt and therefore impact both business considerations and market practices.
New Taxpayers and Structures Covered
Groups with centralized external financing may also face new challenges with interest deductibility (e.g. publicly listed parent company bonds). Private equity structures (e.g. including leveraged holding companies and profit participating loans) and real estate investments are among those most significantly impacted by the expansion of the scope of applicability.
The new rules are suggested to apply to, inter alia, real estate companies and other non-business companies.
Definition of Interest
The definition of interest is widened. The new definition covers costs economically equivalent to interest expenses such as guarantee fees. However, according to the government proposal e.g. financial leases are not considered to fall under the new definition of interest, contrary to the draft government proposal.
The Grandfathering Rule
The exemption of third party loans concluded before 17 June 2016 is welcomed, but raises questions with respect to its interpretation, as the exemption would not apply to any “subsequent modification” of such loans.
The potential impact of refinancing activities and other changes to loan terms performed on 17 June 2016 or later should be evaluated in order to determine whether the grandfathering rule would apply. The implications of the grandfathering rule should also be considered in connection with any future modifications of loans or refinancings since those may in some cases significantly increase the indirect costs for refinancing.
The grandfathering rule would also apply to interests capitalized in taxation before 1 January 2019.
Applicability of the New Rules
Parliament is expected to decide on the government proposal later this year. Major changes to the proposed rules are not anticipated. The proposed new rules would be applied already for the tax year 2019 i.e. financial periods ending during 2019.
It is recommendable for companies and investors to assess the impact of the new rules to their current financing structures. Since the new rules will be applicable very shortly, and for some companies the rules already apply to the ongoing tax year, we recommend that this assessment is made as soon as possible.
We are happy to discuss the proposed changes with you.