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UK appeals against CFC State Aid decision

UK appeals against CFC State Aid decision

The UK Government has made an annulment application against the EC’s decision that the CFC Financing Company Exemption gave rise to State Aid.

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matthew-herrington

Partner, Head of International Tax – Corporates

KPMG in the UK

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Also on home.kpmg

HM Treasury has confirmed that on 12 June 2019 the UK Government made an annulment application to the EU General Court against the European Commission’s (EC’s) decision that the Financing Company Exemption (FCE) within the UK’s Controlled Foreign Company (CFC) regime gave rise to State Aid. The Government has not yet published its application to the General Court but it has made available a summary of the technical arguments against the decision which were put forward in the annulment application.

The UK’s arguments against the decision include:

  • Chapter 9 is not an exception to the general rule under Chapter 5 but rather an integral part of identifying non-trading finance profits (NTFP) that have been artificially diverted from the UK;
  • The UK does not agree that CFCs with qualifying loan relationships are in comparable legal and factual situations to CFCs with other forms of financing arrangements and that there are different risks associated with third party loans compared to intra-group loans;
  • The EC’s assertion that the UK Connected Capital is an acceptable derogation on the basis that it provides for an administrable regime is equally applicable to the UK activities test;
  • The UK’s CFC regime was reformed in 2013 following the Cadbury Schweppes ruling in order to make it compliant with EU Fundamental Freedoms and the EC decision undermines this; and
  • The UK has a certain level of discretion in exercising their competence in the field of direct taxation.

It should be noted that businesses who are potentially affected by the EC’s ruling are likely to have their own grounds for bringing an annulment application, over and above those raised by the UK Government and should consider separately applying to challenge the EC’s decision as there is a risk that affected groups may be unable to rely on EU defences at the domestic enforcement stage in the UK unless those grounds have been directly raised at the EU level.

Notwithstanding the application for annulment, the UK Government is obliged to push ahead with recovery of the State Aid and it is understood that initial recovery action will be assessed directly by HMRC and not recovered via the self-assessment system.

For further information please contact:

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