Kai Holkeri

Partner
Head of Tax & Structuring

Kai Holkeri

Partner
Head of Tax & Structuring

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Reliable in every way.

The Legal 500 2016, Tax

Excellent analytical skills

Chambers Europe 2017, Tax

Committed, flexible and hands-on approach.

Chambers Europe 2018, Tax

Ability to communicate in an effective and understandable manner.

Chambers Europe 2018, Tax

Solution-oriented’ team head Kai Holkeri is recommended for his ‘ability to deconstruct complicated tax issues’.

The Legal 500 2018, Tax

Recognized since 2014 in The Best Lawyers in Finland for work in: Tax Law.

Best Lawyers
Dittmar & Indrenius > People > Kai Holkeri

Focus on structuring and tax optimisation of M&A transactions, financial transactions, and tax disputes.

Kai Holkeri is known for high-end transactional work. He has a unique expertise in international tax structuring and is actively engaged in general corporate tax work and tax disputes, especially related to transfer pricing.

He advises large Finnish companies as well as multinational groups, investors, banks and financial institutions in their Finnish tax matters and complex transactions.

Education

University of Helsinki (LL.M., 2002)

Admitted: Finnish Bar Association

Languages

Finnish, Swedish and English

References

Latest Insights

insight
Draft Government Proposal on International Tax Dispute Resolution Mechanisms
29 Aug 2018 The Ministry of Finance of Finland has issued a draft government proposal on international tax dispute resolution mechanisms on 27 August 2018. The draft proposal implements the Directive on Tax Dispute Resolution Mechanisms in the European Union (2017/1852, the "Directive"). In addition, the proposed new legislation addresses certain other tax dispute resolution mechanisms related to the interpretation of tax treaties. The aim of the new legislation is to enhance the resolving of international tax disputes and to avoid double taxation in cross-border context. Summary of the Proposed Tax Dispute Resolution Mechanisms The following table illustrates the main changes to the current processes and contents of the draft proposal on a high level.   Timing of the Legislative Process The draft proposal is currently under public consultation. The contents of the proposal are therefore subject to change. The new legislation is proposed to apply to applications filed on 1 July 2019 or thereafter which concern tax years started on 1 January 2018 or later. However, part of the new legislation, such as the obligation to choose between the tax dispute resolution mechanisms and the domestic appeal process, is applicable to all applications filed on 1 July 2019 or thereafter. Reflections on the Draft Government Proposal Many of the proposed changes provide long-awaited procedural rules for tax disputes relating to the interpretation of tax treaties. Currently, most of the relevant procedural provisions are outdated and not explicitly applicable to international tax dispute resolution processes. Implementation of the Directive provides more effective means for taxpayers to eliminate double taxation between EU countries since the threat of binding arbitration can be expected to encourage the competent authorities to negotiate, and ultimately double taxation should be eliminated through arbitration. This type of process is currently only applied in transfer pricing disputes involving EU countries. The draft proposal also includes certain changes to the current processes which can in many cases limit the taxpayers' legal remedies. The taxpayers would in practice need to choose whether to refer the case to a tax dispute resolution process under the proposed legislation or the domestic appeal process. This would increase the importance of the strategic decisions taken during a tax audit phase regarding potentially threatening cross-border tax disputes. Since this provision is proposed to apply to all applications filed on 1 July 2019 or thereafter, regardless of the tax year the application covers, the draft proposal may have great relevance in many of the cross-border tax disputes pending today. One aspect which the draft proposal seems to ignore is the extension of the suspension of tax enforcement to the tax dispute resolution processes under the proposed legislation. Currently, it is possible to request the temporary postponement of the payment of taxes only during domestic appeal processes. If this discrepancy is not fixed, it may render the use of tax dispute resolution mechanisms a less attractive alternative in many cases. We are happy to discuss the implications of the proposed legislation in concrete situations as well as keep you updated on the legislative process.
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Draft Goverment Proposal on CFC Rules and General Anti-abuse Rule
8 Aug 2018 The Draft Proposal Ministry of Finance has issued a draft government proposal on controlled foreign company ("CFC") rules, implementing the CFC rules of the Anti-Tax Avoidance Directive (2016/1164, the "Directive"). Additionally the proposal addresses the general anti-abuse rule ("GAAR") of the Directive. The proposed CFC rules, which would enter into force at the beginning of 2019, are in many ways stricter compared to both the requirements of the Directive and to the currently applicable CFC rules. Overview of Proposed CFC Rules Controlled foreign company rules effectively re-attribute the income of a low-taxed controlled subsidiary to its direct or indirect parent company. Control Whereas the current CFC rules require that at least 50% of the CFC is controlled by Finnish taxpayers (related or unrelated), the Directive requires that a Finnish taxpayer together with its associated enterprises (foreign or domestic) holds at least a 50% participation in the CFC. The Finnish proposal takes this requirement further and proposes a participation threshold of 25% for the CFC rules to apply. Level of Taxation The Directive would classify entities with an effective tax rate ("ETR") of less than 50% of the domestic tax rate as being subject to low taxation (calculated in accordance with the rules of the Member State of the controlling company). The Finnish proposal imposes a stricter threshold of 60% (resulting in an ETR threshold of 12% with Finland's current corporate income tax rate of 20%). Taxable CFC Income The Directive provides member states with two alternative frameworks for determining the taxable CFC income, which would include: (a) specific passive income (such as interest, royalties and dividends); or (b) income arising from non-genuine arrangements which have been put in place for the essential purpose of obtaining a tax advantage. The draft proposal does not directly follow either of the models proposed by the Directive but instead applies a combination of the non-genuine arrangements rule with the currently applicable Finnish CFC rules. In brief, any low-tax entity that is controlled by Finnish taxpayers may be subject to the CFC rules, unless one of the exemptions applies. Exempted Activities The draft proposal follows the Directive's framework of excluding EEA resident companies with genuine economic activities from CFC taxation. However, outside the EEA, all genuine business arrangements are not outside the scope of CFC rules. The new rules would exempt only companies the income of which mainly arises from industrial or other comparable production activities, shipping activities, as well as sales or marketing activities related to such exempt activities. In addition, adequate exchange of information procedures need to be in place between Finland and other state for the exemption to apply. It is important to note that the current exemption applicable to tax treaty resident companies would be abolished. Consequently, the effective level of taxation of such non-EEA resident companies would need to be monitored. Contrary to the currently applicable CFC rules, which have required that the sales and marketing activities could only be performed in the company's state of residence in order for the exemption to apply, the new CFC rules would also exempt regional sales and marketing hubs from the applicability of the rules, provided that the operations relate to industrial production. This change will provide more flexibility for companies with regional activities. All in all, the new rules extend the scope of the current CFC rules and also include stricter rules than those required by the Directive. General Anti-Abuse Rule General anti-abuse rules feature in tax systems to tackle abusive tax practices that have not yet been dealt with through specifically targeted provisions. Pursuant to the GAAR of the Directive, for the purposes of calculating the corporate tax liability, Member States shall ignore 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 the applicable tax law, are not genuine having regard to all relevant facts and circumstances. Finnish domestic legislation includes a GAAR which, despite its different wording and structure, has broadly the same purpose as the GAAR of the Directive. Despite ongoing discussions regarding the comparability of the two GAAR provisions, the Finnish Ministry of Finance concluded that the currently applicable domestic GAAR meets the requirements of the GAAR of the Directive, acknowledging that the domestic GAAR may be stricter in certain situations. Therefore no changes are proposed under the draft to the currently applicable GAAR due to the Directive. Implications Proposed amendments significantly expand the scope of application of the CFC rules and could lead to somewhat arbitrary CFC implications e.g. to companies with genuine business operations outside the EEA. Especially the inclusion of a specific list of exempted activities compared to the Directive's approach of exempting all genuine activities will likely cause issues to numerous taxpayers as in some cases also genuine business operations subject to low taxation in non-EEA countries may classify as CFCs under the new rules. The extension of the scope of the sales and marketing exemption would enhance structuring options for many groups operating with regional activities. The proposed rules, which would enter into force on 1 January 2019, are currently under public consultation and are subject to change. It is recommendable for companies to assess the impact of the proposed changes to their current structures. We are happy to discuss the proposed changes with you and keep you updated with the development of the legislative process.

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