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FOREIGN COMPANIES AND INTERNATIONAL FISCAL PLANNING.

With the globalization of business and the economy in today’s world, the normal thing is to design and plan for this in order to optimize tax results according to the applicable legislation in each country.

Situations of international investments such as international corporate structures and financing, optimization of cash-flows and capital repatriation, and fiscal planning of disinvestment and assignment of intangibles, subsidiaries and branch offices; and permanent establishments, remuneration of expatriate personnel, foreign security holding companies, etc., all require adequate advice and analysis to achieve their purpose without surprises.

Therefore, it is a common denominator that the transactions of a taxpayer must have sufficient economic substance to be respected for tax purposes, which is understood as including both the “objective economic substance of the transactions” and the “subjective business motivation behind them”. Thus, a transaction that does not have economic substance would involve an objective analysis of whether there is a realistic practical economic effect, apart from the tax benefits; and if the taxpayer has not been motivated by business purposes other than obtaining tax benefits on undertaking the transaction, this would involve a subjective analysis of the taxpayer’s intention, as the coverage provided by extraterritorial companies will be not accepted by the tax system because it is understood that that business has in fact been conducted within its territorial scope.

Examples of international fiscal planning mechanisms include: (i) extraterritorial controlling companies, which may have some or all of the following tax benefits: reduced tax withholdings, dividends with tax deferral, combination of foreign taxes, deferral of capital gains tax, jurisdictions with low taxation, jurisdictions with special regimes, etc.; (ii) controlling companies with extraterritorial licenses and patents; (iii) extraterritorial financial firms; (iv) extraterritorial trading companies; (v) group administration office or coordination center; and (vi) employee hiring firms.

This international fiscal planning requires a thorough, detailed study and analysis not only of the concurrent causes and the economic substance of each of the cases, but also of the international double taxation agreements and the transfer prices in operations undertaken extraterritorially between related companies and, in the European arena, a follow-up of the EU legislative initiatives and the impact of CJEU jurisprudence on fiscal matters, the control of States’ tax aid and the practical application before Spanish and European courts.


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