Perspective fiscale de la sous-capitalisation : état des lieux et apport de l'action 4 du projet BEPS : cas des juridictions belge et marocaine

Abstract

The asymmetrical tax treatment of interests and dividends encourages MNEs to finance their operations with debt rather than equity; especially in high-tax countries. As a matter of fact, in order to minimize their taxable base, MNEs use their subsidiaries in different countries to shift the profit through international debt shifting. Without restrictions, MNEs could finance all of their operations and build up the capital of their subsidiaries in debt rather than equity. In this regard, several countries have established rules that limit interests’ deductibility, called: Thin-capitalization rules.

In this respect, Belgium has fixed a debt-to-equity ratio of (5:1). This ratio limits the deductibility of interests related to loans coming from related parties or/and third parties not established in the European Economic Area. The ratio is judged, albeit, very large and can easily be foil through increasing the paid-up capital of a given subsidiary.

When it comes to Morocco, the legislator has put in place a debt to paid-up capital ratio of (1:1). This ratio concerns only the case where a resident/non-resident mother-company gives a loan to a Moroccan subsidiary. The other cases are not foreseen; which intensifies and gives rise to BEPS opportunities.

As a response to the G20 request, the OECD has developed a plethora of credos, one of which aims to limit interests’ deductibility. These rules are stipulated by the fourth action of the BEPS project. A part of these rules has been transposed, among others, into a European directive, called: The Anti-Tax Avoidance Directive (ATAD). The rule foresees a fixed-rate approach, which limits the deductibility of interests on the basis of an economic-performance indicator (30* EBITDA). It concerns, furthermore, all types of interests by glossing over their beneficiaries: Related/ unrelated parties.

Belgium -as a European member state- has to transpose the directive into its domestic law. In other terms, it has to transform a best practice recommendation (soft-law) into a hard-law. Notwithstanding its advantages to counter BEPS, it may affect negatively its competitivity in comparison with non-EU countries. As for Morocco, which is neither an OECD-member nor a G20-member, the disposition seems to go against its economic policy by affecting negatively its attractiveness for FDI.