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February 15, 2023

Securing assets in England in support of foreign family law proceedings

Please observe this report was at first printed by Spouse and children Legislation Journal, see here.

Litigants in foreign divorce proceedings can secure property in England and Wales in assist of individuals proceedings. This short article sets out some of the selections accessible, specifically at an interim stage. It is value noting that identical relief would be accessible to support other varieties of overseas proceedings – the reduction is not limited to spouse and children law proceedings.

The situation of just about every situation need to be viewed as meticulously it is vital to acquire early guidance to assure the belongings in concern are guarded properly and expeditiously.

The English court’s jurisdiction

The ability to assistance proceedings in one more jurisdiction derives from s 25 of the Civil Jurisdiction and Judgments Act 1982 (as amended). In doing exercises this electricity, the English court docket does not figure out the deserves of the overseas proceedings in its place it assesses the appropriateness of granting relief in England.

To do so, the English court docket should be glad (in addition to the details lined higher than) that:

the info of the fundamental case are these that an English court docket would grant the aid sought if the proceedings have been in England somewhat than abroad
it is appropriate for the English court – fairly than the overseas court with perform of the proceedings – to grant the aid sought in help of the foreign proceedings.

Kind of interim relief

Offered the English courtroom is pleased that it can award interim reduction in assist of the overseas proceedings, the English court docket can physical exercise its common powers accessible to it in English scenarios. Down below is a short summary of styles of reduction that may be granted.

Interim freezing injunction

Freezing injunctions are interim remedies which means that a court will not have adjudicated on the parties’ substantive legal rights prior to the injunction becoming built, nor will the court carry out a mini-trial. Set merely, an interim freezing injunction is an order which prevents the human being issue to the purchase from dealing with individual assets, up to a selected benefit.

The English court docket has a discretionary electric power to grant the injunction where by:

there is an underlying trigger of motion
there are assets in excess of which the injunction can be granted
there is a true danger of the assets remaining dissipated and
it is just and easy to do so.

We will take into account (4) generally underneath.

The English court will consider a range of elements in relation to (4) – irrespective of whether it is just and handy to grant the relief. Incorporated among people are no matter if there is a really serious situation to be experimented with and, if there is, the courtroom should also think about the stability of comfort as to whether or not a freezing injunction should really be granted or not (taking into account the parties’ respective positions and possible prejudice suffered by the granting of the injunction).

Serious concern to be experimented with

Irrespective of whether the need for there to be a “critical problem to be attempted” is content will count on the underlying points of the international proceedings. The English court docket would be unlikely to grant reduction in England if the overseas proceedings are frivolous or vexatious.

Equilibrium of benefit

The equilibrium of advantage take a look at is thought of in three stages:

Regardless of whether damages will be an sufficient remedy for the individual trying to find the aid if they realize success at trial of the international proceedings. If damages would be an suitable cure, the freezing injunction would not be granted.
No matter whether the security for the defendant of a cross-endeavor in damages is suitable. A cross-undertaking in damages may require “fortification”, that means the individual who gave the cross-undertaking would have to offer safety or pay back revenue into the English court up to the value of the fortified cross-endeavor. To establish the worth of the cross-endeavor, the court will estimate the harm that the individual matter to the injunction might endure if any freezing injunction is subsequently identified to have been made improperly.
If there is doubt as to the adequacy of damages in relation to both (1) or (2) earlier mentioned, the courtroom will take into consideration the balance of comfort extra frequently. It will take into consideration the individual factual circumstances in which the injunction is sought.

Freezing injunctions are ordinarily sought devoid of notice to the respondent, as giving detect would defeat the object of the aid sought. At an original listening to, attended only by the celebration seeking the injunction, total and frank disclosure should be offered of all facts relevant to the problems to be identified. If that does not happen, the freezing injunction may not be produced or may perhaps be overturned.

The man or woman against whom the freezing injunction is designed would find out of the freezing injunction (if it is granted by the court) only right after that original hearing. A 2nd hearing would follow at which both events will be represented. The court docket will then determine no matter whether the injunction must be continued, varied or discharged.

Asset disclosure get

A further interim cure is an purchase directing a celebration to give information and facts about suitable house or property (such as the locale thereof) which are or may perhaps be the matter of an application for a freezing injunction. The rationale driving these types of an get is to acquire information and facts about assets which may possibly then sought to be attacked subsequently.

An asset disclosure order is usually sought at the identical time as and ancillary ta freezing injunction, the factors for which are twofold. Initial, it is beneficial to empower the applicant to law enforcement the freezing injunction if he / she is armed with specifics of the assets that the respondent retains. The asset disclosure get commonly requires the respondent to swear an affidavit location out their property in a couple of times of the asset disclosure get owning been manufactured. If the respondent makes wrong statements in the affidavit they will be in contempt of court and so issue to a great or feasible expression of imprisonment.

Secondly, if an asset disclosure get software is made prior to an application for a freezing injunction, the respondent is put on detect of the freezing injunction. That helps make it far more challenging to show to the court that there is a true danger of dissipation of the belongings (see over), so can make it more difficult to acquire the freezing injunction at all.

Proprietary injunction

A more different form of interim reduction which the English court docket may grant is a proprietary buy. In contrast to a freezing injunction, which is aimed mainly at freezing the respondent’s assets to guarantee that he / she has the signifies to fulfill an eventual debt to the applicant following the international proceedings, a proprietary injunction is aimed at avoiding the respondent from disposing of property which belong (possibly legally or beneficially) to the applicant. It is hence aimed at safeguarding the applicant’s property in the respondent’s hands, somewhat than prohibiting the disposal of the respondent’s very own belongings.

The basis on which a proprietary injunction will be granted by the English courtroom is identical to the prerequisites for a freezing injunction. Nevertheless, there are two unique differences to be aware. To start with, there is no require to demonstrate any chance of dissipation for the grant of a proprietary injunction. Next, and additional definitely, the applicant will want to be ready to show that the belongings to be issue to the proprietary injunction belong to (or are reported to belong to) the applicant (not the respondent). The ownership could be helpful, fairly than lawful.

Quit detect

If the belongings staying secured are shares in a organization, a quit recognize can be practical. English firm law enables a celebration to serve a “quit see” on a company, placing the corporation on see that the applicant statements to have an equitable curiosity in its shares. The impact of this kind of a observe is that the firm will not allow any sale of any influenced shares until finally the equitable possession fascination has been resolved.

The advantage of a halt discover is that it has a identical result to an injunction – ie the shares are not able to be sold for a confined period – but at a substantially scaled-down value, as it avoids the need to have to apply for a high priced freezing injunction, and at a decreased threat. Nonetheless, a cease observe can be side-stepped significantly much more simply than a freezing injunction (for instance, due to the fact the firm may pick not to adhere to it and / or simply because the respondent may possibly be capable to persuade the business that the equitable declare is baseless). Also, getting this phase would put the respondent on discover of the difficulty, as the firm would promptly tell the respondent of the end recognize possessing been issued.

Choices under English household law

In addition to people possibilities outlined over, a different possibility would be to discontinue the foreign proceedings and issue divorce and monetary proceedings in England. It is then feasible to apply for an order blocking a disposition less than s 37 of the Matrimonial Will cause Act 1973, and freezing orders beneath the court’s inherent jurisdiction.

Conclusion

As is apparent from the higher than, there are a number of options to take into account, and what is important is that authorized guidance is sought straight away, ways are taken speedily, and proof is offered to assist any software manufactured.

If you require even more info about anything covered in this briefing, remember to contact Jolyon Connell, Sally Mantell or your typical speak to at the agency on +44 ()20 3375 7000.

This publication is a typical summary of the legislation. It must not substitute legal tips personalized to your certain instances.

December 2, 2022

Proposed U.S. Foreign Tax Credit Rules Provide Relief for Certain Taxpayers and Ideas for Others

December 1, 2022

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The U.S. Treasury Department recently issued proposed regulations[1] to address certain concerns raised by taxpayers and other stakeholders in response to final foreign tax credit regulations published in January 2022[2]. Although the proposed regulations do not grapple with some of the more fundamental problems previously identified by commentators, they do offer taxpayers relief in certain narrow circumstances. In general, the proposed regulations are proposed to apply to tax years ending on or after November 18, 2022 (i.e., starting immediately in 2022 for calendar-year taxpayers). Once the proposed regulations are finalized, taxpayers may choose to apply “some or all of the final regulations to earlier taxable years, subject to certain conditions” described in detail in the notice of proposed rulemaking. Until the effective date of final regulations, taxpayers may rely on the proposed regulations. If a taxpayer chooses to rely on a portion of the proposed regulations, taxpayers must consistently follow all proposed rules for that portion of the regulations for all years until final regulations are effective.[3]

Royalties

One of the primary areas of concern for taxpayers after the publication of the January 2022 final foreign tax credit regulations was the introduction of a source-based attribution requirement (described in earlier iterations of the regulations as the “jurisdictional nexus” requirement) that compares foreign laws governing the source of income with United States income tax laws to determine if a foreign tax should be creditable in the United States. Under the source-based attribution requirement in Treas. Reg. § 1.901-2(b)(5)(i)(B), a foreign tax imposed on a nonresident’s income meets the attribution requirement only if the foreign tax law’s sourcing rules are reasonably similar to the United States sourcing rules.

In the case of gross income arising from royalties, the foreign tax law must impose tax on the royalties consistent with the manner in which the Internal Revenue Code (the “Code”) sources royalty income: i.e., based on the place of use or the right to use the licensed intangible property.[4] In this regard, the United States’ place-of-use rule for sourcing royalties is far from representative of a global consensus. Other jurisdictions source royalties in a manner that does not fall neatly into that category, such as the United Kingdom, where a multi-factor approach is used to source royalties. As a result, in those countries where withholding taxes on royalties are imposed on the basis of some other approach, royalty withholding taxes would not be creditable against the recipient’s U.S. tax liability even if the licensed intangible property is in fact used within the territory of the taxing jurisdiction.[5]

Complicating this inquiry is the lack of certainty that often arises when determining the location where intangible property is used. Although it may be easy to identify where certain manufacturing-related intangibles are used (e.g., at a multinational enterprise’s manufacturing facility), it is more difficult in other situations, such as where employees in one jurisdiction use intangibles to generate sales through social media to customers residing in another jurisdiction.

The proposed regulations provide a limited exception to the source-based attribution requirement of the January 2022 regulations for situations in which the taxpayer can show that a withholding tax is imposed on royalties received in exchange for the right to use intangible property pursuant to a single-country license within the territory of the taxing jurisdiction. For this purpose, a payment is made pursuant to a single-country license if the terms of the license agreement under which the payment is made characterize the payment as a royalty and limit the territory of the license to the country imposing the withholding tax. Therefore, U.S. taxpayers may need to revise existing license agreements to qualify for the single-country license exception.

Cost Recovery Requirement

The proposed regulations also provide further insight into the net gain requirements that foreign income taxes must meet to give rise to U.S. foreign tax credits. The final regulations require generally that significant items of expense—including capital expenditures, interest, rents, royalties, wages and research and experimentation—must be recovered against income, but the proposed regulations permit a foreign tax to disallow significant costs and expenses if the disallowance is consistent with any principle underlying disallowances required under the Code.

For taxpayers determining whether a disallowance is consistent with Code-based principles, the proposed regulations provide helpful guidance. Treas. Reg. § 1.901-2(b)(4)(iv)(J), Example 10, makes clear that taxpayers would be permitted to claim foreign tax credits in respect of taxes paid to foreign taxing jurisdictions that do not allow any deductions for stock based compensation because the Code “contain[s] targeted disallowances or limits on the deductibility of certain items of compensation in particular circumstances based on non-tax public policy reasons, including to influence the amount or use of a certain type of compensation in the labor market,” citing sections 162(m) and 280G. Without the inclusion of Example 10 in the proposed regulations, it would not otherwise have been obvious that a complete disallowance of deductions for stock-based compensation would be considered to be consistent with (or resemble) the limitations in sections 162(m) and 280G.

For taxpayers analyzing whether any other type of disallowance under foreign tax law resembles a Code-based disallowance, the example and its principles should provide helpful authority in determining whether the net gain requirement is satisfied.

Summary

While the recently released proposed regulations do not address many substantive issues raised by taxpayers and other stakeholders in response to the January 2022 regulations, they do represent an effort to answer narrower problems identified by taxpayers, and they are designed in a way that allows taxpayers the opportunity to make broad arguments in other areas by analogy to these narrow rules. Given the relief provided in response to high profile comments from the technology and other sectors on royalty withholding issues in particular, interested parties with other specific issues should consider communicating those issues to the Treasury Department and the IRS with proposals for relief or clarification.

Please contact any Gibson Dunn tax lawyer for updates on this issue.

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[1] 87 Fed. Reg. 71,271, 71,275 (Nov. 22, 2022).

[2] T.D. 9959, 87 Fed. Reg. 276 (Jan. 4, 2022).

[3] Until the effective date of final regulations, taxpayers may rely on the proposed regulations. If a taxpayer chooses to rely on a portion of the proposed regulations, taxpayers must consistently follow all proposed rules for that portion of the regulations for all years until final regulations are effective. 87 Fed. Reg. 71,271, 71,277 (Nov. 22, 2022).

[4] Sections 861(a)(4) and 862(a)(4) of the Code.

[5] Foreign tax on royalties can often be eliminated altogether under United States income tax treaties that eliminate royalty withholding tax, in which case there is no need to claim a foreign tax credit. But foreign taxes on royalties are a significant focus of many U.S. taxpayers, as other U.S. treaties only reduce the royalty withholding tax, and many substantial U.S. trading partners, including Brazil, Singapore, and Hong Kong, do not enjoy tax treaties with the United States. We also note that in determining the availability of a deemed paid credit to a U.S. shareholder of a CFC, the IRS and Treasury have taken the position in the January 2022 regulations that a U.S. taxpayer may not rely on a U.S. treaty provision that a country’s royalty withholding tax is creditable in a context where withholding taxes are imposed on royalties paid by one CFC to another CFC.

This alert was prepared by Jeffrey M. Trinklein, Anne Devereaux, John F. Craig III, Michael A. Benison, Eric Sloan, Sandy Bhogal, Jérôme Delaurière, and Hans Martin Schmid.

Gibson Dunn lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work, the authors, or any of the following leaders and members of the firm’s Tax and Global Tax Controversy and Litigation practice groups:

Tax Group:
Dora Arash – Los Angeles (+1 213-229-7134, [email protected])
Sandy Bhogal – Co-Chair, London (+44 (0) 20 7071 4266, [email protected])
Michael Q. Cannon – Dallas (+1 214-698-3232, [email protected])
Jérôme Delaurière – Paris (+33 (0) 1 56 43 13 00, [email protected])
Michael J. Desmond – Los Angeles/Washington, D.C. (+1 213-229-7531, [email protected])
Anne Devereaux* – Los Angeles (+1 213-229-7616, [email protected])
Matt Donnelly – Washington, D.C. (+1 202-887-3567, [email protected])
Pamela Lawrence Endreny – New York (+1 212-351-2474, [email protected])
Benjamin Fryer – London (+44 (0) 20 7071 4232, [email protected])
Brian R. Hamano – Los Angeles (+1 310-551-8805, [email protected])
Kathryn A. Kelly – New York (+1 212-351-3876, [email protected])
Brian W. Kniesly – New York (+1 212-351-2379, [email protected])
Loren Lembo – New York (+1 212-351-3986, [email protected])
Jennifer Sabin – New York (+1 212-351-5208, [email protected])
Hans Martin Schmid – Munich (+49 89 189 33 110, [email protected])
Eric B. Sloan – Co-Chair, New York (+1 212-351-2340, [email protected])
Jeffrey M. Trinklein – London/New York (+44 (0) 20 7071 4224 /+1 212-351-2344), [email protected])
John-Paul Vojtisek – New York (+1 212-351-2320, [email protected])
Edward S. Wei – New York (+1 212-351-3925, [email protected])
Lorna Wilson – Los Angeles (+1 213-229-7547, [email protected])
Daniel A. Zygielbaum – Washington, D.C. (+1 202-887-3768, [email protected])

Global Tax Controversy and Litigation Group:
Michael J. Desmond – Co-Chair, Los Angeles/Washington, D.C. (+1 213-229-7531, [email protected])
Saul Mezei – Washington, D.C. (+1 202-955-8693, [email protected])
Sanford W. Stark – Co-Chair, Washington, D.C. (+1 202-887-3650, [email protected])
C. Terrell Ussing – Washington, D.C. (+1 202-887-3612, [email protected])

*Anne Devereaux is an of counsel working in the firm’s Los Angeles office who is admitted only in Washington, D.C.

Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.