Abbvie, the US pharmaceuticals giant landed with a €500 million-plus Irish tax bill last year as it was caught in the crossfire of a crackdown on a certain type of takeover, must be mightily glad it has won an appeal.

Surely it’s only a matter of time before the real target – the purchaser of Green Reit – demands a refund.

The Irish Tax Appeals Commission published its determination on the Abbvie case on its website last week in a heavily-redacted document that did not name the appellant.

Abbvie’s surprise tax bill resulted from a move by Minister for Finance Paschal Donohoe in October 2019 to slap a 1 per cent stamp duty on so-called scheme of arrangement takeover structures, which involve the company being acquired cancelling its existing shares and issuing new stock to the acquirer.

This type of deal – used routinely in takeover deals involving Irish public limited companies – previously avoided stamp duty.

Liability

The budget measure was clearly aimed at Green Reit’s €1.34 billion sale to UK real estate investment firm Henderson Park, which was in the works at the time. However, Abbvie was caught as it was using a similar structure to take over Dublin-based Allergan.

Henderson Park’s woes were compounded as Donohoe removed some of the capital gains tax (CGT) relief for real-estate investment trusts (Reits) if they are taken off the stock market – like Green Reit – within 15 years of floating. Henderson Park’s combined stamp duty and CGT liability was estimated at about €65 million.

The Tax Appeal Commission agreed with Abbvie’s argument the stamp duty bill amounted to a retroactive tax, which is not allowed, and that the key date was when Allergan agreed to be taken over. This predated Donohoe’s move – even though the deal was completed at a later date.

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Henderson and the lawyers at A&L Goodbody, who advised it on the Green Reit deal, refused to be drawn on Monday, but the commission’s determination must have piqued their interest.



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