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.
The authors of this article are all active or formar scholars and guests of the MPI for Tax Law and Public Finance: Wolfgang Schön, Andreas Bakrozis, Johannes Becker, Tobias Beuchert, Martin Boer, Nadja Dwenger, Andreas Gerten, Maximilian Haag, Sabine Heidenbauer, Carsten Hohmann, Alexander Jehlin, Karin E.M. Kopp, Daniel Kornack, Nadia Lagdali, Christian Marquart, Lukas Müller, Marta Oliveros Castelon, Christine Osterloh-Konrad, Natalia Paxinou, Carlo Pohlhausen, Philipp Redeker, Erik Röder, Astrid Roesener.
Published: British Tax Review (BTR), 2014, No. 2, pp. 146-217.