Under the EU single market for financial services, a firm can use its regulatory authorisation in one EU state (or EEA state under some directives) to passport into other member states through establishing a branch or providing services on a cross-border basis. Simply looking at the number of organisations affected by the loss of passporting illustrates the scale of the challenge: as set out in a letter from the Financial Conduct Authority in August 2016, the number of firms using passporting (inbound and outbound and not limited to banks and insurers) totalled 13,484.
It is possible that agreement will be reached with the EU which will allow UK banks and insurers continued access to EU markets without the need for local authorisation or approval (and vice versa). This will however be dependent on political will and the outcome may remain unknown until close to March 2019. For this reason many UK groups in the sector are preparing contingency plans assuming a hard Brexit, with a “cliff edge”.
These contingency plans typically include the establishment of a new base in the EU. In our experience banking groups are generally considering Germany or Ireland as preferred jurisdictions, whereas insurers are focusing on Luxembourg, Belgium and Ireland. Tax is one factor in the decision-making process, alongside the approach of the regulator, proximity to customers, availability of talent and accessibility. The tax considerations include:
Impact on effective tax rate: would there be a material impact if head office assets and/or freedom of service businesses are moved from currently being taxed at the UK rate of 17% (2020) to around 32.5% in Germany, for example?
Tax efficient funding, including the tax deductibility of interest costs and withholding taxes on profit extraction,
Transfer pricing and VAT implications of the (new) outsourcing model.
Groups are also considering how to minimise frictional tax costs on implementation. From a corporate tax perspective, this includes potential UK exit charges and also, with a branch structure, any non-UK tax charges arising on the transfer of branch assets from one legal entity to another. The valuation of assets and businesses being transferred will be important.
Subject to certain conditions being met and depending on how it has been implemented locally, the EU Merger Directive (currently applicable to UK companies) can facilitate the corporate tax neutral transfer of businesses within the EU and covers transactions including cross-border mergers, partial divisions and transfers of separate branches of activity in exchange for shares.
With a cross-border merger involving the dissolution (without liquidation) of the existing entity, should the UK business be transferred out to a separate newly authorised UK entity first? The alternative would be to authorise a UK branch of the new EU entity but there is currently a lack of clarity over whether that is possible from a regulatory perspective.
The potential VAT cost could be even more significant than any corporate tax charges arising, and there may be uncertainty over the applicability of “transfer of going concern” provisions on the transfer of assets cross-border. There may also be stamp duty and/or registration tax liabilities.
Commercial, legal and regulatory considerations will also need to be thought through alongside the tax analysis, for example, how to deal with the existing portfolio of loans or insurance contracts (“the back book”). Could these contracts be run-off in the UK to avoid a potential customer consent and/or notification process in order to transfer them? This is a legal and regulatory question to which the answer is unclear. However, if the back book does not transfer, this may make it more difficult to access certain tax reliefs.
Some groups have considering converting their regulated entity into a Societas Europaea (SE) and migrating this SE to a new EU jurisdiction. This could remove some of the tax complexities but is relatively untested and an employee consultation process is required on conversion. Whatever the approach decided on, obtaining advance tax rulings may be recommended for certainty.
Brexit, and the associated political uncertainty are causing disruption to the FS sector. With only 19 months left until the current “cliff-edge” of the end of March 2019, and a potential implementation timeframe of 18 months, there are clearly timing challenges.
However, despite the potential cost and complexity, restructuring projects could also be an opportunity to determine whether the current operating business model is fit for purpose – perhaps a small silver-lining to an otherwise cloudy outlook.
Vicki Heard is a partner in KPMG's banking tax practice and Sian Hill is currently leading KPMG in the UK's insurance sector response to Brexit