Reimbursement in international circumstances - Current practice and problem areas

Case 1: Subordinated residency in Switzerland

X AG (CH) has its registered office in Switzerland, while its place of effective management (OTL) is in State A.
The shareholders of X AG are public limited companies with registered offices in Switzerland (CH), State A (A) and State D (D).
X AG intends to distribute a dividend.
Note: Switzerland has concluded a DTA (analogous to OECD-MA) with both State A and State D.

In 2014, the natural person (resident in a third country) has to apply for a licence for the purchase of a vehicle through Ltd. (LUX) the AG (CH).
Ltd. (LUX) was self-financed with 30% for the acquisition. The company has no staff of its own and no office premises. Also, Ltd. (LUX) does not hold any other investments or other assets.
AG distributes the annually achieved profits to Ltd. (LUX), which pays the dividends to the natural person (third country).

Inc. (USA) has held AG (CH) through BV (NL) since 2012, which it acquired for CHF 10 million (operational investment). The seller was the founder of the AG, who resides in Switzerland.
BV was self-financed for the acquisition with 1% (kEUR 100). The company did not have its own personnel or office space. Nor did BV hold any other investments or other assets.
AG has been extremely successful in recent years and recorded a high annual profit in the years 2012-2016, which it has reinvested.
In spring 2017, Inc. endowed BV with additional funds (self-financing ratio of 30%) and contributed further investments in European group companies to BV. BV rents - also since spring 2017 - its own offices and employs a CFO, a controller and an administrative staff for the management of the investments and the financing of the Group.

With regard to a substantial dividend distribution in 2018, the AG submits an application 823 B to the FTA in spring 2018.

Will the FTA grant BV a refund of withholding tax?
Variant: How is the case to be assessed if BV increases the substance with regard to the repatriation of funds to the USA (increase in equity capital, no further investments)?
Does the entry into force of MLI / BEPS Action 6 change anything?

Possibility of withholding tax relief?

Service Co (UK) is a service provider for the Group companies. It provides various services both for the European investments held by the sub-holding X AG (CH) and for the European investments held by the sub-holding Inc. (HK) as well as for the Group's Asian investments held by the sub-holding company Inc.
The Group's activities are becoming increasingly important, and the Group is therefore commissioning a transfer pricing study. According to this study, the remuneration of Service Co is not sufficient.

Consequences from the perspective of withholding tax for sub-holding X AG?

S.L. (ES) has held 50% of the shares of the AG (CH) since 12.12.2007.
On 13.8.2008, the FTA granted the AG notification approval 823C until 12.8.2011, whereby the residual tax of 15% for dividends due by 11.12.2009 (2-year holding period requirement) still had to be paid.
On 31 March 2008, the AG paid a dividend of CHF 15 million to S.L. and transferred the withholding tax of CHF 2.25 million to the FTA.
On 3.2.2012, S.L. submits an application to the FTA for reimbursement of the CHF 2.25 million.

What about the S.L.'s right to reimbursement?

The A-Group provides services in the IT sector.
The "umbrella" of the A-group is the A-foundation (foundation controlled or uncontrolled by the foundation board).
The A-Foundation and the A-Anstalt have their seat in Liechtenstein.
The beneficiaries of the foundation are resident abroad, as is the founder.
As part of a group reorganisation, A-Anstalt spins off its operational business as of 1.1.2017 to the newly established A-AG (CH).
The A-Anstalt, fully self-financed, will henceforth assume the asset management and holding function.
The A-Anstalt has its own offices in Liechtenstein and employs its own qualified staff for asset management.
It is subject to taxation in Liechtenstein as a legal entity.
The foundation capital of the A-Anstalt is not divided into shares.
The A-AG has completed its first financial year as of 31 December 2017 and intends to pay a dividend to the A-Anstalt in April 2018.