The term for European Parliament’s special committee on tax rulings and other measures (TAXE) has ended, and the European Parliament has introduced a similar committee for an additional six-month term. The new committee shall also have 45 members.
As with TAXE, one of the powers of the new committee is “to analyse and assess aggressive tax planning carried out by companies established or incorporated in the Member States, also regarding the third-country dimension including the exchange of information with third countries in this respect.”
A link to the announcement is provided for reference:
Click to access 20151202RES05870.pdf
This new committee signifies EU’s continued focus on aggressive tax planning and transparency, with many countries following its lead.
The EU Parliament’s resolutions were passed by a vote of 508 to 108, with 85 abstentions. The proposals call for mandatory country-by-country (CbC) reporting, a common consolidated corporate tax base (CCCTB), defined tax terms and transparency / exchange of tax rulings. A summary press release and the full report are provided for reference:
- Welcomes the EU Parent-Subsidiary Directive amendments, effective at year-end 2015, for a general anti-abuse rule and hybrid mismatches.
- EU Commission has breached its obligations under Article 108 of the Lisbon Treaty by not launching state aid investigations previously.
- EU Member States should respect the principle of profits taxation where they are generated.
- Promote good practices on transfer pricing and the pricing of loans and finance fees in intra-group transactions.
- Commission to further investigate restrictions of deductions for intercompany royalty payments (i.e. counter profit shifting).
- All rulings that have an impact on other Member States to be presented in the CbC report, and shared with the Commission and tax administrations. Rulings to be publicly disclosed in accordance with confidentiality requirements.
- Mandatory CCCTB, with a deadline for the consolidation element and without any further impact assessments.
- Develop measures to tackle cross-border VAT fraud.
- Reform of the Code of Conduct on business taxation.
- New State Aid guidelines by mid-2017.
- EU to be a global leader in tax transparency.
- More extensive CbC report, with intra-group transactions.
- Accelerate European Tax Identification Number project.
- Aggressive tax planning is incompatible with Corporate Social Responsibility (CSR).
- Outgoing financial flows from EU are taxed at least once (i.e. withholding tax).
- Transition period for developing countries to align with Global Standard on Automatic Information Exchange.
This report is compelling, far-reaching and a resource that will be used worldwide, as most non-EU countries will attempt to follow the ever-increasing EU intensity and propensity for changes in the international tax arena. Thereby, it is a must read and a learning tool for non-tax executives in multinational organisations, as well as tax advisors, tax administrations and other interested parties.
The European Parliament’s Policy Dept. A has provided a tax policy paper upon the request of the TAXE Special Committee of European Parliament. An EY summary, and detailed report, are provided for reference:
Click to access 2015G_CM5880_European%20Parliament%20publishes%20paper%20on%20the%20EU%20Third-Country%20Tax-Governance%20Issues.pdf
Click to access IPOL_IDA(2015)563449_EN.pdf
- Developing country tax governance issues
- Tax system trends and challenges
- Impact of tax havens on EU countries
- Challenges faced by tax policy makers
- Exchange of information
- Tax transparency
- Illicit activities
- Harmful tax competition
As the EU has stepped in to take the lead on various post-BEPS initiatives, this policy paper is recommended reading to gauge the trend in these topics that will also take place worldwide.
The European Commission (EC) and European Parliament (EP), including the TAXE Committee on Rulings established by the EP, have recently endorsed many provisions that would normally require the unanimity of approval by the Member States. Knowing this has not resulted in success with prior initiatives, a renewed focus may be taking place re: Article 116 of the Treaty on the Functioning of the European Union (TFEU) which empowers the EC/EP to issue a Directive accordingly.
Article 116 TFEU:
Where the Commission finds that a difference between the provisions laid down by law, regulation or administrative action in Member Sates is distorting the conditions of competition in the internal market and that the resultant distortion needs to be eliminated, it shall consult the Member States concerned.
If such consultation does not result in an agreement eliminating the distortion in question, the EP and the EC, acting in accordance with the ordinary legislative procedure, shall issue the necessary directives. Any other appropriate measures provided for in the Treaties may be adopted.
The TFEU is the same legal mechanism used to address State Aid, and may also be the choice of implementation to establish Directives for one or more of the following initiatives:
- EU Common Corporate Tax Base (CCTB)
- Country-by-Country (CbC) reporting, public disclosure
- Tax rulings, (redacted) public disclosure
- Permanent Establishment (PE) definition
- Anti-BEPS Directive, transforming OECD “soft law” into an EU legislative framework
- Interest & Royalty Directive requiring confirmation of EU tax being paid elsewhere
- EU Dispute Resolution approach
Everyone should monitor the EC, EP and TAXE for continuing developments, as they may form the basis for new global standards to enact the intent of BEPS initiatives.
EY’s Global Tax Alert provides a succinct summary of the latest BEPS (incentivized) developments around the world. A link to the Alert is provided for reference:
Click to access 2015G_CM5699_The%20Latest%20on%20BEPS%20-%2017%20August%202015.pdf
Overview of the Alert:
- OECD: Documents re: initiative for automatic exchange of financial account information
- Africa: Best Practice regional meeting to develop measures for countering BEPS
- Australia: Exposure draft law re: transfer pricing documentation to be effective 1/1/2016
- Brazil: Report to eliminate interest on net equity (INE) regime
- Chile: Foreign residents are to provide a sworn statement to receive treaty benefits
- Europe: TAXE Committee’s interim report re: tax rulings and BEPS related topics
- Ireland: Knowledge development box
- Italy: Patent box regime
- Japan: Interest limitations
- Korea: VAT re: electronic services
- Luxembourg: EU Parent-Subsidiary Directive inclusions (anti-hybrid and anti-abuse clauses)
- Saudi Arabia: Virtual Service PE
- Spain: Patent box regime
The Alert highlights the continuous and frenzied pace of the BEPS measures, as well as the unilateral efforts that are mirroring the intent of BEPS, although not necessarily in a consistent and cohesive framework.