Debt and Equity in Domestic and International Tax Law: A Comparative Policy Analysis

Martin Boer, Wolfgang Schön

Research output: Contribution to journalArticleAcademicpeer-review

Abstract

The demarcation between debt and equity is a long-standing core constituent of company and taxation law the world over. However, its sustainability for national and international taxation regimes is increasingly the subject of doubt. Domestic and international proposals for reform are directed towards either rendering the classification of financial instruments as equity or debt legally superfluous or robbing it of economic meaning. With the comprehensive comparative legal analysis in this article and the economic reasoning behind the distinction as background, a new structure for the relationship between debt and equity will be advanced. In doing so, the corporate and contract law background (including the flexibility) of each type of capital will be illuminated and the tax purpose of the relevant standards will be reviewed. It will become apparent that in income taxation, corporate taxation and international taxation law, a variety of legislative policy concerns influence the distinction between debt and equity and hence require differing demarcations. The resulting framework can also contribute to the current debate on “hybrid mismatches” with financial instruments.
Original languageEnglish
Article number2
Pages (from-to)145-217
Number of pages73
JournalBritish Tax Review
Volume2014
Issue number2
Early online date20-May-2014
Publication statusPublished - 20-May-2014

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