Template:M summ GMSLA 6.2

In other words the Borrower pays what the Lender would have received net, by reference to the Lender's own situation. This means that the Lender doesn't need to worry about different rates of tax or withholding applying to the Borrower. The Borrower, being the person who wanted to borrow the securities, takes the risk of untoward taxes related to its own position (as opposed to the Lender’s position) — if the tax is one the Lender would have suffered anyway, the Borrower doesn't have to account for this.

Makes sense, really.

Witholding rates

Notwithstanding the starting point — the Borrower takes the risk of whatever withholding may be imposed on the taxes, in practice dealers may commit to general levels with WHT country-by-country — say 85% or something — and generally stick with these even though the specific rates applied for individual dividends may be marginally more or less. This is largely an operational convenience: no-one wants to be forensically tracing precise withholdings actually applied on every dividend, as that may vary on all kinds of factors (e.g. whether the dividend was paid out of capital reserves, whether it was a special dividend or a regular one and so on), and to commit to that is not only expensive and resource intensive, but opens the broker up to all kinds of remediation claims should the amount turn out to be even fractionally wrong — and here the dealer is short an option, as, commercially, it will never be able to recover from its customers after the fact where it has overpaid, but regulators will insist on dealers accounting to customers for any downside — treating customers fairly — even though the customers may have as little interest in receiving the extra money as the dealers do doing the work to calculate and pay it

So setting a fixed rate which is a good approximation of the expected dividend, and which you can adjust flexibly from time to time should withholding rates change or particular circumstances differ, is basically sound business management. The dealer takes some overs-and-unders risk, but it will be minimal in the context of their overall business, and would be drowned out by the cost of employing battalions of contractors in an offshore centre to do the work of reconciling to the penny in any case.

Now the odd thing here is that these accommodations will typically not be set out in the legal agreement.

...Income paid in relation to any Loaned Securities

Another example of that loose prepositional phrase “in relation to” being used carelessly in the 2010 GMSLA. The preposition in question here really ought to be “under” or, if you really must, “pursuant to”.

This is Income paid by the issuer under the terms of the contract comprising the Loaned Securities or Collateral; “in relation to” might be misread to imply something a little looser. For example, moneys paid by someone else in relation to the securities —— a derivative counterparty or credit default insurance provider, or even a payment made by the issuer that relates to the shares, but is not a distribution under them: for example, a liability under a private suit to a shareholder as a result of misstatement to the market.