Withholding tax and gross-up

Boilerplate Anatomy™ →Go uptown I'm never gonna gross you up. Resources: commercial imperative | Verbiage | Look, I tried | The ultimate client Index: Click ᐅ to expand: Boilerplate Representations and warranties Tell me more Sign up for our newsletter — or just get in touch: for ½ a weekly 🍺 you get to consult JC. Ask about it here.

Boilerplate Anatomy™ →Go uptown Resources: commercial imperative | Verbiage | Look, I tried | The ultimate client Index: Click ᐅ to expand: Boilerplate Representations and warranties Tell me more Sign up for our newsletter — or just get in touch: for ½ a weekly 🍺 you get to consult JC. Ask about it here.

A form of tax in which the payer of an amount of money (often interest payment or a dividend) is must withhold a portion of that payment and remit it to the tax authorities on the payee's behalf.

Certain kinds of tax are susceptible to withholding: taxes on interest and dividend payments, for example, as these are neatly determinative and may be clipped a pre-specified rate without any pause for thought. Other taxes are less suitable for withholding: General income tax obligations, the net levels of which depend on one's whole income over a year, for example. These can’t realistically be claimed by withholding, but that won’t stop tax attorneys avoiding non-existent doubts about the risk that some revenue authority, somewhere in the world, contrives some way of doing it.

Gross up

Wherever one finds a withholding tax — or a risk of one — one will find legal provisions compelling the payer to gross up the withheld payment (or absolving it from doing so). A gross up is meant to put the payee in the position it would have been had there been no withholding, so it gets he whole amount it initially expected. Grossing up may mean having to withhold an additional extra bit from the grossed up payment (and having to gross up that too, in an asymptotic slivers ad nauseam)

ISDA Master Agreement

The ISDA Master Agreement has all sorts of provisions about withholding, gross up and what kinds of taxes count (Indemnifiable Taxes), which includes a fantastic quintuple negative.

Gross-up

You will often see time-tested, careworn tax language along the following lines:

“Payments must be made without set-off, counterclaim, deduction or withholding unless required by law in which event the payer shall pay such additional amounts as will result in the receipt by the recipient of the amounts which would otherwise have been payable by payer to recipient under this Clause in the absence of any such set-off, counterclaim, deduction or withholding.”

Set-offs versus withholding

The first thing to note is that this mixes two quite distinct ideas: tax on one hand — one’s liability to The Man, as it were — and set-off on the other: whether and if so how one should flatten out one’s aggregate liability to a payee who might already own you something on account of some other business.

These things are worth looking at separately.

Tax

Everyone knows one is liable to tax on one’s income: this is in the “rice-pudding” category of “things that are deducible from first principles”.

But the taxperson has ways of extracting its slice of the action. It can wait till you file your tax return, or it can deduct at source — pay as you earn — or it can oblige your counterparties to deduct as they pay you. This is called “withholding” — the payer remits the tax and pays it on your behalf.

Certain types of payments are natural candidates for withholding. These are broadly characterised as income payments: compensation for your investment, capital, or the fruits of your labours as it were. So:

• PAYE income tax.
• Dividend withholding tax on the share investments (or manufactured equivalents)
• Interest withholding tax on loans and deposits
• Taxes on royalties

See also

• FATCA Amendment - ISDA Provision
• Withholding tax
• Indemnifiable Taxes
• Gross-Up in the ISDA Master Agreement
• Deduction or Withholding for Tax in the ISDA Master Agreement