The case concerned the deductibility of interest on a loan from a foreign parent company to its Swedish subsidiary. The loan was used to finance the acquisition of an operating Swedish group from an external party.
Because the loan was from a foreign parent company, the so-called “correction rule” (Chapter 14 § 19 IL) was to be applied to determine if the interest rate on the loan was at arm’s length. The rule states that transactions are to be adjusted if it is determined that the pricing is lower than what two mutually independent companies would have agreed to in a similar situation.
The Swedish tax agency in this case adjusted the interest deduction, with reference to the Diligentia case, and the lower court agreed with the adjustment.
Administrative Court of Appeal
The Administrative Court of Appeal held that the “correction rule” was a special rule for international transactions, and that it took precedence over general rules for establishing the result of a business transaction.
The Administrative Court of Appeal referred to the OECD Guidelines, noting in particular that
…a correct arm’s length price is achieved by establishing the conditions of the commercial and financial relations that one could expect to find between independent enterprises in comparable transactions under comparable circumstances…. Every individual company in a group of companies shall be treated on a stand-alone basis when reviewing their agreements with one another, the so called separate entity approach.
Finding that the Swedish tax agency had the burden of proof in the application of the correction rule, the Administrative Court of Appeal concluded that:
- It was not clear from evidence presented by the tax agency why an average interest rate on some of the external loans, granted with security and with higher seniority, would be appropriate comparables.
- The tax agency had not presented analysis as to how it arrived at its finding that the shareholder’s factual insight and control meant that an arm’s length interest rate on the shareholder loan would be 8% (instead of 16.5% as originally claimed).
Read a February 2013 report prepared by the KPMG member firm in Sweden: New judgment from Administrative Court of Appeal relating to arm’s length interest rate on loan from parent company
Contact a tax professional with KPMG's Global Transfer Pricing Services.