UK: UK Tax Treatment of US Hybrid Entities

Last Updated: 7 July 2010
Article by Catherine Ramsay

Introduction

Two recent cases have considered the availability of double taxation relief in the UK in circumstances involving US hybrid entities. 

In Swift UK v HMRC1, the Tribunal considered whether a US LLC was an opaque or transparent entity for UK tax purposes and therefore whether a UK resident member of the LLC could obtain double tax relief for US tax paid on his share of the profits.  The Tribunal held, contradicting HMRC's established practice, that the LLC was transparent for UK tax purposes as it is more akin to a partnership than a company.  This will be a concern, for example, to UK taxpayers with direct or indirect interests in LLCs.

In Bayfine UK v HMRC2, a claim was successfully made to credit US taxes against a UK company's tax liability where such taxes arose on the same income in the company's US parent as a result of the UK company being treated as transparent for US tax purposes following a "check the box" election.  The case looked at the analysis of the US tax treaty and unilateral tax relief under UK law for a circumstance which had not been envisaged by the treaty or UK legislation.

Swift

HMRC general practice follows the principles in Memec plc v CIR3. Pursuant to this case, in determining whether an entity is transparent or opaque and HMRC will follow the guidelines set out in its manuals and previous Tax Bulletins.

In particular, the following matters should be considered under the relevant local commercial law:

  1. Does the foreign entity have a legal existence separate from that of the persons who have an interest in it?
  2. Does the entity issue share capital or something else, which serves the same function as share capital?
  3. Is the business carried on by the entity itself or jointly by the persons who have an interest in it that is separate and distinct from the entity?
  4. Are the persons who have an interest in the entity entitled to share in its profits as they arise; or does the amount of profits to which they are entitled depend on a decision of the entity or its members, after the period in which the profits have arisen, to make a distribution of its profits?
  5. Who is responsible for debts incurred as a result of the carrying on of the business: the entity or the persons who have an interest in it?
  6. Do the assets used for carrying on the business belong beneficially to the entity or to the persons who have an interest in it?

Particular attention is paid to factors c. and d.

HMRC have a list of foreign entities which they have considered to be transparent or opaque, which includes a US LLC as opaque – however they are at pains to point out that for any particular entity the classification will depend on the specific facts including the details of its constitutional documents.

Swift is a decision of the first tier tax tribunal concerning the UK tax treatment of an LLC. The facts were that a UK resident taxpayer was a member of a US Delaware LLC ("SPLCC"). SPLCC paid distributions (net of US tax already paid) to the taxpayer in the UK. The taxpayer reported such income as gross partnership income in his UK income tax returns and claimed relief under the US/UK double tax treaty (the "Treaty") on the basis he was liable to tax in the UK on the same share of profits of SPLCC that were taxed in the US and that SPLCC was a transparent entity in both the US and the UK.

For US tax purposes, SPLCC was classified as a partnership (a transparent entity) and therefore its members, rather than SPLCC itself, were liable to US tax on their share of the profits of SPLCC regardless of whether such profits were distributed to the members.

For UK tax purposes, SPLCC was treated as a corporate (and therefore opaque) entity and therefore a profit distribution to the UK taxpayer was the equivalent of a dividend.

HMRC therefore contended that the UK taxpayer was not entitled to relief for the US tax paid as SPLCC was classified as an opaque entity for UK tax purposes, so the US tax arose in SPLCC, whereas for UK tax purposes the tax liability was that of the member of the LLP.  Therefore the taxpayer did not have a US tax liability to credit against his UK tax liability.

As set out above, the key to deciding whether US and UK tax had been computed by reference to the same income was in considering whether the profits of SPLCC belonged either to the members as it arose (hence SPLCC was transparent in nature and Treaty relief would be available) or the income was more similar in nature to dividends (hence SPLCC was opaque and HMRC were correct to deny Treaty relief).

In deciding whether SPLCC was transparent or opaque, the Tribunal referred to HMRC Tax Bulletin 39 and the categorisation of foreign entities as transparent or opaque. It was agreed that SPLCC was a legal entity, that it carried on its own business, that the business beneficially belonged to SPLCC and not the members and that SPLCC was responsible for any debts incurred as a result of carrying on the business. In dispute were whether SPLCC had share capital or something else that served the same function and whether the members had an interest in the profits as they arose (as discussed above).

In respect of profit distributions, there was some debate as to whether distributions by the LLC were discretionary or mandatory because the LLC agreement was ambiguous in this respect.  The Tribunal looked at the Delaware LLC Act which states that profits and losses are allocated amongst the partners and determined that the members were therefore beneficially entitled to the profits as they arose even though they are not entitled to the assets representing those profits until distributed.   Conceptually this is difficult to understand and is likely to be the subject of further debate on appeal.

'Share capital' is not a term used in relation to the LLC. A Delaware LLC interest is defined as being "a member's share of the profits and losses of a limited liability company and a member's right to receive distributions of the limited liability company's assets". SPLCC's operating agreement broadly provided that a member's interest was not assignable other than with the consent of the other members or on death. Even then the assignee did not become a member and it was only entitled to the economic benefit of the interest.

It was held in this case that a membership interest in SPLCC was not similar to share capital and is not "issued". It more closely resembled that of a partnership interest, where transfer of partnership capital requires the consent of the other partners, as opposed to a UK company where shares are usually transferable and if there are restrictions, it is normally limited to director consent only.

The Tribunal therefore held that SPLCC was a transparent entity for UK tax purposes, being somewhere between a Scottish Limited Partnership and a UK Company but being closer in nature to a partnership.

Although not necessary (as the court decided that the LLC was opaque) the Court also determined that if the LLC were opaque, the taxpayer could not rely upon section 739 ICTA applying to treat the LLC's income as his own in order to obtain DTR.  Section 739 was not relevant as there was no tax avoidance motive.

The case is to be appealed and HMRC is maintaining its previous practice of treating LLCs as opaque for UK tax purposes.

Bayfine

Bayfine was an appeal in the High Court of a decision of the Special Commissioners concerning a US parent company which was taxed in the US on the profits of its wholly owned UK subsidiary. It provides an interpretation of the UK rules on unilateral relief and the UK/US double tax treaty in the context of UK tax resident companies that are disregarded for US tax purposes.

The facts of the case concerned the Morgan Stanley Group entering into financial transactions in 2000 whereby two of its UK subsidiaries (one of which was Bayfine UK Limited - "Bayfine") entered into transactions resulting in a loss in one of the UK companies and an equivalent gain in the other. The transactions had no commercial purpose, but the effect was to create two losses which could be set against other profits within the Group, a capital loss in the US and an income loss in the UK.

Bayfine recognised a profit on its particular transaction with its US parent and this formed part of the overall non-trading profit to which Bayfine was liable to UK corporation tax. The US parent was subject to US federal income tax on the profits of Bayfine under the US "Check the Box" Regulations which treated Bayfine as transparent for US tax purposes.

Bayfine appealed against the original decision that US tax only arose due to the fact that the "Check the Box" Regulations disregarded Bayfine for US Federal income tax purposes and that this was the only reason the US parent was taxed and not because the income was US source. 

Bayfine claimed Treaty relief against the tax due on its UK profits for the US federal income tax paid by its US parent. Hence Bayfine declared no further tax was payable in the UK.

The usual scenario in these cases is that tax is both paid and payable by the same entity in both jurisdictions.  The difference in this case was that "Check the Box" Regulations meant that two different entities were taxed on the same profits. The Treaty was silent on what to do in this circumstance and it conferred the right to both the UK and US to tax Bayfine's profits.

It was held (overturning the decision of the Commissioners) that:

  1. unilateral relief under section 790 Income and Corporation Taxes Act 1988 ("ICTA") would apply to the extent that treaty relief did not apply.  Specifically under section 790(4) ICTA unilateral relief applies to tax in a territory outside the UK on "income arising or any chargeable gain accruing in that territory".  The profits were clearly made in the US (the financial transaction had taken place on US soil, the parent company was US resident and it related to US situs assets) and that as such Bayfine paid US tax and would be entitled to credit this against the UK taxation on these profits under s790.  Whilst the profits were taxed on different entities, it was held to be irrelevant which entity actually pays the tax as it is the same profit being taxed in both jurisdictions.
  2. the treaty was silent on the situation where different entities were paying tax on the same profit.  In the end it was decided that provided the "tax is properly paid first in the US (which had in fact occurred) treaty relief would be available in the UK for the US tax.   The order in which the tax is paid and credited is the deciding factor on which jurisdiction can claim the tax credit in this circumstance.  Therefore, if UK tax had been properly paid first, it would have been creditable against the US tax.

The Court in this case reached a pragmatic solution as to which country should have the primary taxing right.  However, it does seem rather arbitrary to base this on time of payment.  Whilst this is potentially an unusual fact pattern, it would seem logical to deal with such situations in a more scientific way and specifically deal with double tax relief on the same profits arising in different entities in both local legislation and double tax treaties.

Footnotes

1.  [2010] SFTD 553

2.  [2010] EWHC 609 (Ch)

3. 70 TC 77

www.twobirds.com

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions