Back to back loans arrangements are often used when foreign investors set up a Company in a jurisdiction like Cyprus to use it as a financing company in order to finance other associated companies. Many countries would argue that the Cyprus Company is not the beneficial owner of the interest thus the treaty between Cyprus and the relevant country should not apply or interest income received by a Cyprus company may also be taxed in that other jurisdiction where interest was paid.
What is then the definition of a beneficial owner?
The beneficial owner (Cyprus Company) shall be a person who has a right to use and enjoy the interest received unconstrained by a contractual or legal obligation to pass on the payment received to another person.
When the beneficial ownership test can be passed in Cyprus?
In the case of Cyprus back to back loan arrangements, there are strong arguments that the test of 'beneficial ownership' can be passed when:
- interest profit margins follow the arms' length principle
- financing company is the beneficial owner of funds used and thus demonstrates that it has the right to use and enjoy the funds received unconstrained,
- Cyprus financing company demonstrates business substance in Cyprus;
- Cyprus financing company addresses tax residency and management and control issues in Cyprus
Foreign investors set up a financing structure in Cyprus in order to finance other associated companies.
- Cyprus financing company receives funds from a foreign / parent entity
- Cyprus financing company uses the funds by increasing its share capital i.e. in a form of equity
- Cyprus financing company grants an interest bearing loan to Foreign Company at arm's length
- Interest is received by Cyprus financing company from Foreign company at arm's length
- Notional interest deduction applies on Cyprus financing company share capital increase (equity) and thus 80% of interest expense is tax deductible subject to conditions
- Interest profit margin is taxed in Cyprus as low as 2.5%
The Cyprus financing company can be the beneficial owner of interest if:
- it is adequately capitalized;
- it demonstrates that it has the right to use and enjoy the interest received unconstrained;
- it demonstrates business substance;
- it demonstrates that its management and control is exercised in Cyprus and thus it is in fact a Cyprus tax resident company
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.