CROSS on-board he leasing (CBL) (dt.: "„transnational hire purchase "“) designates a leasing over state borders away, leasing givers and lessees has its seat thus in different countries.

Fundamental

CBL is a structured financing, i.e. this concerns different contracts, which are together locked in the context of a total plan and are only as a whole understandable. Usually CBL is accomplished, in order to use a different legislation in two countries and save and/or avoid through it taxes. Admits is in particular the CBL with the USA. Their fiscal regulations make it possible to treat long-term rent such as property. The contracts are locked in New York, since in this Federal State contracts have also still existence if afterwards it turns out that they offend against valid right (in the case US right). CBL was exported in the context of the globalization from the USA into other states. Offerers are beside Germany also Great Britain, Japan and Sweden.

By the different fiscal regulations of the countries it comes in for the fiction of two fiscal owner and the same object, who for taxation copies now both - in each case according to the laws of their homeland - at the same time the same object. Both "„tenants "“and "„landlords "“can copy and produce thus with this construction the leasing article for taxation thereby for taxation removable expenditure. Since the American side can book the writing-off without material initial costs, it concerns a pure tax savings model. The American side with the lessee divides a part of the tax saving. These are frequently cities and municipalities in Germany, France, Austria, Switzerland, Belgium or the Netherlands. The municipality gets maximally two to eight per cent of the entire transaction volume, "„the bar value advantage in such a way specified "“.

Numerous European municipalities could up-improve their households with the CBL - provisional -. One counts on the fact that the German cities could obtain a bar value advantage of for instance a billion euro between 1995 and 2004 altogether. 2004 was changed in the USA, as long months before the interested one admits was forbidden had been, the tax laws and new contracts thereby. In the year 2005 the American financial administration published statements, according to which CBL is be regarded as abusive evasion of tax and not be paid the tax benefits also for in the past the locked CBL business can. At present begins the discussion, which means this for the European municipalities in practice, if not already - as in many CBL contracts - the risk of a any change of the US-American tax legislation, inclusive of a complete obligation was taken up to replace for this case to the American partner the full escaped profit from the beginning debited to the municipalities to the contract.

Objects, contract practice and contract types

For CBL contracts particularly long-lived urban plants were suitable. Besides at present (conditions 2004) a minimum value is intended of 150 millions "€. The contract type was until 1999 above all "„leases in leases out "“, afterwards excluding the contract type "„leases and service contract "“. With first streetcars were sold and are e.g. leased back-rented, with second the public infrastructure on 100 years and back-rented at the same time for a shorter period (24-30 years). Often CBL is misunderstood as sales. It is actually added only from US-according to tax law view. A sales does not take place after German civil law.

In practice local sewage purification plants, duct systems, combined heat and power stations, drinking water systems, streetcars and undergrounds, railway systems, halls and schools US firms over a running time by up to 100 years are rented and back-rented immediately again. The American investor prepays for the entire Mietzeit the rent in an amount. That applies in the USA as "„investment "“and makes writings-off possible. The municipality rents the plant for a substantially shorter running time back and receives the possibility of buying at expiration the Mietzeit the plant again back. The municipality from the Mietvorauszahlungen of a bank received from the American investor makes the rent available for the entire running time plus buy-back value. This pays of it the current rent to the American investor and after end of the Mietzeit the buy-back value. The advantage of the municipality is in the difference between received Mietvorauszahlungen and performed Mietvorauszahlungen including repurchase value.

The US firm is called "„investor "“. That is misleading, because she invests only after US right. The term "„investor "“is here purely colloquially used. It concerns specializedlinguistically in reality a Trust, which does not invest actually into the objects, but only the tax law in the USA uses. After German right the US firm only tenant is - and simultaneous landlords. At run time the US firm does not have to transact new investments into the plant according to. On the contrary, the municipality must ensure that the plant serves its contractually specified purpose during the entire period. Because US "„investor "“for his part must supply proof annually to its tax office with that the plant is intact. From it demands for payment of damages result against the municipality in the conflict. This is not unproblematic due to the long contract running times. Contractual repayments amount to often a repeated of the once won "„bar value advantages "“.

The former free owner has now numerous long-term requirements and demands, which become secured by a pledge right: after the American tax law "„the economical property is sufficient "“, with us prevails however the security principle forwards. There are thus two owners, from which a certain exposure to loss results. After German interpretations of contract the municipality remains owner and after US right becomes the US-Trust the economical owner. In all contracts the USA as area of jurisdiction one specifies. However one does not practice regularly to translate often more the than 1,000 sides of comprehensive contracts into German or to inform public or town councillors about details.

Running times and costs

As disadvantage the long running times are considered. These are not so much the hundred years of the letting, but the long leaseback of up to 30 years. In this long period, if the bar value advantage is forgotten already long, all must be kept with conclusion of a contract agreed upon connections and restrictions. On the one hand the plants might not be made smaller or redimensioniert, them may thus become above all not cheaper. On the other hand all switched on banks must exist further and keep the prescribed Rating. All subsequent changes go carrying all risks which are connected with it at expense of the municipalities and these also.

With some negotiations the municipalities carried the entire risk of costs whether it actually comes to a conclusion of the CBL. They were thus in the case of cost. If they wanted to step out before contract conclusion, then they had to pay all calculations. So the city Aachen had to pay 19 million Marks to banks, law offices and further advisors after the failure of preliminaries. In many cases the municipalities had however no risk of costs. If it did not come to the conclusion of the CBL, all lawyers had to bear their own cost or these were taken over by the banks. The lawyers advised regularly in such a way then that they earned well.

Area of jurisdiction the USA

The contracts are locked to New York Law and with the area of jurisdiction New York. New Yorker rights is suitable in particular, since in New York the large American law offices their center have and its treaty right well-known and is proven. A fiscal prohibition of the contracts lets their civil acknowledgment exist to New York Law.

With any questions concerning the rights and obligations the lessee must switch however American lawyers on. With disputes with the American side the German municipality has the large disadvantage that it would have to complain before their courts. A German municipality, which complains from a tax savings model, will enjoy a special protection from American courts hardly. The question is, whether the municipality could state, the contracts is ineffective after German right, since the effective permission of the German supervisory authority is not present.

With the fiscal question, whether the concrete CBL contract in the USA is recognized for taxation and who carries the debt and thus all consequences for a nonacknowledgement it is likewise excluding the American fiscal authorities and revenue courts responsibly. The German municipality is not involved hieran and has to that extent no direct access. If the American revenue court as well as the investor agrees upon the Deal that the nonacknowledgement is based on the behavior of the German municipality, then this is opposite financially responsible to the investor for the tax damage and must its taxeight-hurries pays.

Net yields and costs

The net yields from the CBL result not due to concrete creation of value, but from the losses of the US-American treasury and by that still taxes payments are financed there. German banks can reduce investment "“their fiscal charges in Germany due to this foreign in such a way specified "„. They earn also at the given credits.

The costs, which result among other things in the form of fees for the law offices involved or commissions for mediators, are nearly just as high as the amount, which drops for the municipality involved in Europe as advantage altogether. The danger that or differently constituted privileges are paid also at decision makers of the municipalities, is extraordinarily high - and hardly demonstrably.

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