Update

25 November 2016

FEE Tax Policy Update 15 – 25 November

Highlights

  • Deloitte report: tax policy reforms in the US after Trump’s election – 10 November
  • European Parliament: PANA Committee publishes study on breached EU legislation – 15 November
  • International: Hungary to cut corporate tax rate to lowest in EU – 18 November
  • European Parliament: Plenary votes on tax administrations’ access to AML information and definitive VAT regime report – 22 November
  • International: UK’s Philip Hammond pledges to retrieve £2bn from tax avoiders – 23 November

European Commission

Commission report: Taxation trends in the European Union – 11 November

The European Commission has published a report on taxation trends in the EU. The report contains a statistical and economic analysis of the tax systems of all 28 EU Member States, plus Iceland and Norway (which are members of the EEA). In addition to the analysis of Europe-wide trends, the report includes country chapters covering separately each of the 28 EU Member States, Iceland and Norway. The report covers a wide range of taxes, ranging from consumption to labour, capital, environmental and property taxes. With regard to VAT specifically, the trend of rising standard VAT rates has stopped, signifying a decrease in the average standard EU VAT to below 21,5%. The highest VAT rate, 27%, can be found in Hungary whilst the lowest ones are in Luxembourg (17%) and Hungary (18%). Moreover, the report includes a list of VAT reforms undertaken by each of the included countries for 2015.

Commission report: Tax policies in the EU – 17 November

The European Commission has published a report titled Tax policies in the EU. In the report, the Commission emphasises that taxation must be fair and efficient – to raise revenues that enable redistribution and allocation of wealth to social services, “public goods” and to support jobs, innovation and investment. The report, consequently, calls for reforms at both national and EU-levels, and overall reforms so far are moving to the right direction despite variances between Member States. Moreover, room for improvement remains. The report, in particular, points to the recently re-launched proposal for a Common Consolidated Corporate Tax Base (CCCTB) – as well as some of its constituent elements such as addressing the debt-equity bias – as significantly contributing to rendering tax systems fairer and more efficient for authorities and businesses alike.

 

“EU Warns Ireland Not To Rely On Corporate Tax” – 17 November

According to Tax News, the European Commission has warned Ireland not to over-rely on its corporate tax yield. The warning comes as a part of the Commission’s analysis of Ireland’s 2017 draft budget. The Commission is concerned that corporate tax income is “uncertain and volatile” in nature, and as such risks undermining Irish efforts to balance their budget.

Commission launches the Start-up and Scale-up Initiative, tax a main concern for small companies – 22 November

the European Commission has launched its Start-up and Scale-up Initiative. This predominantly repackaging/reframing exercise of already existing work flows presents a number of initiatives that should tackle three issues that prevent start-ups from scaling up: (i) regulatory and administrative barriers; (ii) the shortage of partners and opportunities; and (iii) difficulties in access to finance finance. The main suggestions to remove barriers draw on existing initiatives such as the Single Digital Gateway, a simplification of tax filings (Common Consolidated Corporate Tax Base, simplification of the VAT system), and a proposal to further harmonise EU insolvency legislation. The Commission will also start providing recommendations to Member States to help them improve policy design. Looking at the European Semester exercise, it remains to be seen whether this will have a big impact.

New data on taxes in the EU – 25 November

Eurostat has issued latest tax statistics for the EU. According to the data, the overall tax-to-GDP ratio in the EU amounted to 40,0% in 2015 – with no significant changes from 2014. For the Eurozone, the same figure for 2015 is 41,1%, a slight decrease from 41,5% in 2014. According to Eurostat, this marks the first time since 2010 that the tax-to-GDP ratio did not increase in both EU and the Eurozone. The highest ratios can be found in France, Denmark and Belgium whilst Ireland, Romania and Bulgaria are situated at the opposite end of the scale.

European Parliament

PANA Committee hearing on compliance with anti-evasion and AML rules – 14 November

The European Parliament’s Panama Papers (PANA) Committee has held a public hearing on compliance with anti-tax evasion and -money laundering (AML) rules. The purpose of the hearing was to better understand actions taken by law enforcement authorities to react to the Panama leaks, to better understand the roles of various authorities in enforcing EU legislation in AML and tax fraud, and to learn about everyday challenges faced by these authorities. During the hearing, the visiting representatives from Belgian and German authorities as well as Europol emphasised the importance of greater transparency on bank accounts, beneficial ownership as well as tax. Giovanni Kessler from the European anti-fraud office (OLAF) confirmed that the organisation has opened four investigations as a follow-up to the Panama Papers. The Belgian Financial Intelligence Unit, by contrast, has already opened 97 cases following the Panama leaks.

 

Zero tolerance needed against tax secrecy, says former Panamanian advisor Joseph Stiglitz – 16 November

The Nobel-winning economist Joseph Stiglitz has attended a hearing of the Panama Papers (PANA) Committee of the European Parliament, by virtue of his staunch work against tax fraud and the shadow economy, and his former position as a member of a working group formed to investigate the lack of transparency in Panama’s financial system, which he subsequently quit due to Panamian authorities refusing to guarantee that the final report would be published. During the PANA Committee hearing, Professor Stiglitz called for “zero tolerance” on secrecy, and applauded the EU for its diligent unilateral work in the area of taxation, maintaining that this work could have an impact on the wider world as well. Moreover, Professor Stiglitz agreed with the MEP Jeppe Kofod (S&D/DEN) that there should be stronger sanctions against the enablers of tax avoidance, evasion and money laundering alike. He urged the EU to cut all ties with companies that refuse to comply with global norms in this area. Finally, Professor Stiglitz issued strong criticism against tax competition, and called for a “floor” on it in the form of a global minimum corporate tax rate.

PANA Committee study on breached EU legislation – 15 November

The first out of several upcoming studies of the European Parliament’s Panama Papers (PANA) Committee has been published. The study is titled “The Mandate of the Panama Inquiry Committee – an Assessment”, and as the name implies puts forward a set of recommendations as to which legislative files the Committee should focus its work.

The core purpose of the PANA Committee is to investigate the misapplication and non-enforcement of existing EU legislation that has led to the establishment of opaque offshore company structures and bank accounts as revealed by the Panama leaks earlier this year. The study lists EU legislation that the author believes the Committee should in particular focus on, including in the areas of audit, taxation and money laundering. It has been prepared by Professor Dr. Robby Houben, Department of Accountancy and Finance, University of Antwerp, at the request of the Parliament’s services. The study concludes that:

  • PANA Committee should focus on the “alleged failure” of the Commission and Member States to enforce and implement:
    • The third anti-money laundering Directive (AMLD III)
    • The 2011 Directive on Administrative Cooperation (DAC I) on tax
    • and the 2006 Audit Directive
  • PANA Committee should not focus too much on the following legislative files, since they were not supposed to be implemented and enforced yet:
    • The 2014 Audit Directive and Regulation
    • 2014 DAC II on tax
    • 2013 Accounting Directive

The study has no direct legislative or otherwise impact on the Committee’s work. However, its findings will inevitably influence and inspire the work of the MEPs.

Plenary votes on tax administrations’ access to AML information and definitive VAT regime report – 22 November

The European Parliament has adopted two important tax-related reports in its latest Plenary session. The first of them relates directly to the Commission proposal to improve tax authorities’ access to anti-money laundering (AML) information, whilst the other is an own-initiative report on the definitive VAT regime and tackling VAT fraud.

The report on tax administrations’ access to AML information was adopted by 590 votes in favour, 32 against and 64 abstentions. The MEPs want to not only grant access, but for the tax administrations to exchange the information between each other as well. Tax administrations should, moreover, gain access to beneficial ownership information. The dossier was led by the MEP Emmanuel Maurel (S&D/FRA). As taxation is a Member State competence area, the European Parliament could only issue its opinion by the Council has no obligation to take the contents into account. It is revealing that the Member States already reached an agreement in principle on the dossier in November – before the European Parliament finalised its opinion (see FEE Tax Policy Update from 14 November for further details).

In parallel, the European Parliament Plenary also voted for its own-initiative report on the definitive VAT regime and tackling VAT fraud – a dossier led by the MEP Werner Langen (EPP/GER). The report passed the vote with 459 votes in favour, 87 against and 74 abstentions. Unlike the ECON Committee version of the report (see FEE Tax Policy Updates from 13 May and 14 October for further details), the final version calls for greater flexibility for Member States in their VAT rate policies. The report, moreover, calls for improved exchange of information between Member States to tackle VAT fraud. And finally, it endorses the destination principle as a model for the definitive regime. The report relates to the European Commission’s VAT Action Plan, but does not directly form a part of any specific legislative process – it is merely a compilation of the European Parliament’s thinking and positions on the topics covered and has no legal impact.

Council

Report to the Code of Conduct Group (Business Taxation) on the work of the Subgroup during the Slovak Presidency – 17 November

The Code of Conduct Group on Business Taxation has published a report on its activities during the Slovak Presidency on the clarification of the 3rd (presence or non-presence of real economic activity) and 4th (substance and internationally accepted principles) criteria of the Code. The document provides an overview of the meetings of the Group that have taken place in the past half a year, as well as the topics discussed. It also highlights some areas for further work. With regard to the 3rd criterion, the Group will look into different types of regimes in order to substantiate the principles of the modified nexus approach, including holding company regimes, banking and insurance regimes, as well as fund management regimes, amongst others. The Group will also assess whether the Code’s guidance on special economic zones should be clarified. Regarding the 4th criterion and its reference to the arm’s length principle, the Group invites the European Commission to consider reviewing and submitting proposals for updates of the EU Code of Conduct on transfer pricing documentation and other relevant EU guidelines by the end of 2019.

 

“Maltese finance minister talks Brexit, tax and capital markets” – 20 November

The Finance Minister of Malta, Edward Scicluna, has given an interview to Politico in which he sheds more light on the prospective priorities of the upcoming Maltese Presidency. In the interview, the Minister notably states his disappointment with the ambition in the European Commission’s Capital Markets Union (CMU) project, but maintains that this is a priority for the Presidency. As part of the CMU, the Commission is expected to provide guidance and recommendations on the reclaiming procedures of withholding taxes, as well as on tax incentives for venture capital and other innovative means of alternative financing. With regard to the Common Consolidated Corporate Tax Base (CCCTB), the Minister emphasises the need for a clear timetable and giving Member States sufficient time to adjust.

Court of Justice of the EU

Ruling on dividends and corporation taxes in Euro-Mediterranean Agreement with Tunisia and Lebanon – 24 November

The Fifth Chamber of the Court of Justice of the EU (CJEU) has issued a ruling on dividends and corporation taxes in the context of the Euro-Mediterranean Agreement signed with Tunisia and Lebanon. The case code is C‑464/14. The ruling concerns the tax treatment for the tax year 2009 of the dividends distributed to a Portuguese company (SECIL) by two companies whose seats were in Tunisia and Lebanon respectively. The ruling provides clarifications on a number of relevant TEU and TFEU Articles, as well as the relevant Euro-Mediterranean Agreements.

International

“Hungary to cut corporate tax rate to lowest in EU” – 18 November

As reported by a number of media, the Prime Minister of Hungary, Victor Orban, has announced (FT) that he would introduce (EUObserver) a 9% corporate income tax rate from (PFI) January 2017 onwards. This would put the tax rate below that of Ireland and Cyprus, both of which have a 12,5% rate. The single rate would apply to all companies – under the current regime in Hungary, a reduced 10% corporate tax rate applies for profits up to €1,6 million and a higher 19% rate for all profits above that threshold.

“France Launches Panama Papers Investigations” – 18 November

According to Tax News, the French Government has initiated investigations into the tax affairs of 560 French citizens. These investigations are based on information revealed by the Panama Papers. In the immediate aftermath of the Panama leaks, the French authorities warned that it would collect information through information exchange mechanisms at its disposal within its treaty network, with the intention of potentially following up with criminal prosecution if applicable.

“Switzerland: Bribes, Penalties No Longer Tax Deductible” – 18 November

According to Tax News, the Swiss Federal Council has adopted a proposal aiming to prevent companies to apply tax deductions on bribes and fines. This has been possible, so far, as existing legislation is uncertain and does not specify rules on the tax treatment of fines, penalties or administrative sanctions for financial crimes. The new legislation would clarify that such payments are non-deductible. As a next step, the proposal will go to the Swiss Parliament.

Schäuble warns the UK against tax dumping – 21 November

According to Der Spiegel, the German Finance Minister Wolfgang Schäuble has warned the UK against introducing aggressive tax measures such as corporate tax reductions in order to maintain the its economic attractiveness for businesses. Schäuble points out that the UK is still a EU Member State, and as such remains bound by EU law. Even after Brexit, the UK would be bound by its commitments made at the Antalya Summit last November, in which the G20 countries committed to refrain from engaging in tax competition.

CBCR to be discussed at December 2016 meeting of Accounting Standards Advisory Forum (ASAF) – 23 November

At the next meeting of the Accounting Standards Advisory Forum (ASAF) taking place on 8-9 December, Country by Country Reporting (CBCR) is on the agenda. More specifically, the meeting will include an update by the Australian Accounting Standards Board (AASB) and a staff working document of the AASB has been posted as background. During the meeting, the ASAF will be invited to discuss questions such as whether accounting standard-setters should take a more leading role on tax transparency, as well as potential changes to IAS 12.

“Tax avoidance: Philip Hammond pledges to retrieve £2bn” – 23 November

As notably reported by the Guardian and the Financial Times (article only available to subscribers), The UK Chancellor Philip Hammond has announced (Guardian) the Government’s intention (FT) to take additional measures against tax avoidance, thereby aspiring to raise an additional £2 billion in tax revenue. Possible measures will include additional penalties on tax advisors who enable the use of tax planning schemes that have been defeated by the HMRC. Some tax advisors, for their part, fear that the Government’s plans will undermine taxpayers’ access to independent and professional advice regarding “routine or well-established tax planning”.

OECD

Saint Lucia expands its capacity to fight international tax avoidance and evasion – 21 November

Saint Lucia has become the 107th jurisdictions to sign the Multilateral Convention of Mutual Administrative Assistance in Tax Matters. As its name implies, the Convention provides for a variety administrative assistance in tax matters, including exchange of information on request, spontaneous exchange, automatic exchange, tax examinations abroad, simultaneous tax examinations and assistance in tax collection. It moreover guarantees extensive safeguards for the protection of taxpayers’ rights.

 

Tax Inspectors Without Borders making significant progress – 22 November

The OECD has published an overview of progress made by and state of play of the programme Tax Inspectors Without Problems (TIWB) established back in July 2015 to tackle tax avoidance by multinationals in developing countries. In particular, TIWB organises the deployment of qualified tax experts to countries that request assistance with ongoing audits of multinational companies. The projects focus on revenue recovery and improving local audit capacity while sending a strong message on the need for tax compliance.

Countries adopt multilateral convention to close tax treaty loopholes and improve functioning of international tax system – 24 November

Over 100 countries have finalised negotiations on a new multilateral instrument aiming to implement a number of tax measures and update international tax rules with the view of further limiting opportunities for tax avoidance. The instrument, called the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS, will transpose the BEPS project’s results into over 2000 tax treaties across the world. A formal signing ceremony will take place in June 2017 in Paris.

Other News

Deloitte report: tax policy reforms in the US after Trump’s election – 10 November

Deloitte has published a timely report on the prospective tax reforms to be seen in the US following the surprise election of Donald Trump as the President of the country. The report covers a wide range of tax categories, including the variety of business and individual taxes as well as incentives and deductions. The report’s arguments are based on statements made by Trump, as well as the changing balance of power in the US decision-making bodies – i.e. a Republican-controlled Presidency and Congress. It maintains, therefore, that Trump will amend US tax laws within the frames of the income tax system – rather than putting greater emphasis on consumption taxes. Moreover, by virtue of the Republicans controlling the key decision-making institutions, there is an expectation for decreasing tax rates on businesses and individuals combined with a broadening of the tax base through limiting and even eliminating certain tax deductions, credits and incentives.

FES report on overcoming the shadow economy – 15 November

The Friedrich Ebert Foundation (FES) has published a report on tackling the shadow economy, prepared jointly by the Nobel-winning economist Joseph Stiglitz and Mark Pieth, Chairman of the OECD Working Group on Bribery in International Business Transactions. The report criticises so-called “secrecy-havens” that undermine global transparency standards and facilitate money laundering, tax evasion and avoidance, and social inequalities. The report puts forward a set of recommendations to improve the situation, for example public Country by Country Reporting (CBCR), sanctions against intermediaries (NB including tax advisors) facilitating tax avoidance or evasion, and scaling down “tax preferences” such as various incentives and exemptions.

ICRICT report on ways to tackle tax competition – 15 November

The Independent Commission for the Reform of International Corporate Taxation (ICRICT) has published a report with four recommendations to fight against international tax competition. The recommendations include establishing a floor under tax competition (including a global minimum corporate tax rate and a common base), elimination of all tax breaks on profits, putting an end to tax rulings and other arrangements that provide for “special treatment” of certain companies over others, and ensuring citizen engagement with tax debates. In its own words, ICRICT aims to promote the international corporate tax reform debate through a wider and more inclusive discussion of international tax rules, consider reforms from a perspective of public interest rather than national advantage, and seek fair, effective and sustainable tax solutions for development. ICRICT’s Commissioners include notable names such as the former French presidential candidate and current MEP Eva Joly (Greens-EFA/FRA) and the Nobel-winning economist Joseph Stiglitz.

KPMG survey: key Swiss location factors for multinational corporations at risk – 15 November

According to a survey conducted by KPMG, many of the factors that render Switzerland an appealing place for multinationals’ location are under threat. KPMG surveyed over 850 foreign multinationals, 68% of which admitted that the specificities of the Swiss tax system was the key driver behind their decision to locate in the country. In parallel, 58% of the respondents believe that Switzerland will adopt stricter international tax standards as established by the OECD and the EU.

“Airbnb looks to secure 700 tax deals with cities” – 20 November

According to the Financial Times (article only available to subscribers), the peer-to-peer online platform company Airbnb is looking to secure 700 tax arrangements in a number of cities that in total provide over 90% of its revenue. Airbnb has an existing 200 tax agreements, and will aim to increase this number by another 500. The deals enable the company to remit hotel taxes to local governments, in order to avoid “regulatory risks” stemming from policy-makers imposing new taxes or tax rules that might endanger Airbnb’s business model.

PwC: Ireland continues to be most effective country in the EU in which to pay business taxes – 22 November

A joint report prepared by PwC and the World Bank Group argues that Ireland is the most effective country in Europe to pay business taxes, and sixth most effective globally. This means that the Irish tax system is one of the most efficient ones in terms of bureaucracy and administrative burden when it comes to paying, filing, time spent and the amount of tax levied on businesses. The report is based on a sample of 189 economies from across the world.

“New Zealand To Seek More Tax Transparency From MNEs” – 22 November

According to Tax News, The Inland Revenue Commissioner of New Zealand, Naomi Ferguson, has urged multinationals to ensure greater tax transparency. Without specifying exactly what such greater tax transparency would entail, Ms. Ferguson did specify that companies should not shy away from “telling the wider public about how much they contribute to our country”.

MEP Questions & Answers

Introducing a single EU tax identification number – 17 November

The European Commission has replied to a question asked by the MEP Aldo Patriciello (EPP/ITA) with regard to a single EU tax identification number (TIN). In his question, Mr. Patriciello maintains that a single EU TIN could simplify registration procedures and make it easier for people to obtain healthcare and employee benefits. He therefore asks the Commission whether it plans to introduce. In his reply, Commissioner Moscovici acknowledges the TINs in both the access to different kinds of services and the fight against tax fraud and tax evasion. He however argues that since national TINs are built according to national rules which differ considerably, there are several difficulties in practice to introducing a EU-wide one. Having said that, he confirms that a study is currently reviewing whether a new EU identifier is required or whether alternative solutions are more appropriate. The potential benefits for citizens from a simplified access to public and private services through such a EU identifier is one of the many dimensions considered in the study. The work will be completed in 2017, and possible initiative will be after that.

‘Apple tax’ case – 18 November

The European Commission has replied to a question asked by the MEP Marian Harkin (ALDE/IRL) with regard to the Apple tax case. In her question, Ms. Harkin refers to an earlier statement by OECD’s Pascal Saint-Amans according to which most of the €13 billion that the Commission has ordered Ireland to recover belongs, in fact, to the US (see FEE Tax Policy Update from 30 September). She therefore asks the Commission whether it believes that the full sum of €13 billion is owed solely to Ireland, or whether instead it belongs to a number of jurisdictions. In her reply, Commissioner Vestager maintains that the case concerns the taxation of two Irish incorporate Apple companies, without questioning the structure set up by Apple in Europe. Having said that, other Member States might want to reconsider the tax assessment of the Apple Sales International (ASI) within their territories which might lead to part of the profits having to be allocated to the Member State in question, leading to a reduced recovery amount in Ireland. Moreover, the Commission investigation only assessed whether Ireland has allocated the right amount of sales profits to the relevant Apple Irish branches.

Caterpillar group’s tax arrangements – 18 November

The European Commission has replied to a question asked by the MEP Hugues Bayet (S&D/BEL) with regard to Caterpillar’s tax arrangements. In his question, Mr. Bayet refers to a complex tax strategy employed by the Caterpillar group to transfer the bulk of its profits to Switzerland. He therefore maintains that the company’s profits are not being taxed in the country in which they are generated, and consequently asks the Commission whether it will open an investigation on the matter. In his reply, Commissioner Moscovici maintains that tax collection and compliance investigations fall under the responsibility of national authorities. However, he lists a number of measures taken by the Commission to tackle “aggressive tax planning”, such as measures around Country by Country Reporting (CBCR), the Anti-Tax Avoidance Directive (ATAD), as well as the Common Consolidated Corporate Tax Base (CCCTB).

Obstacles to e-commerce in the EU due to disparities in VAT – 23 November

The European Commission has replied to a question asked by the MEP Ivo Belet (EPP/BEL) with regard to obstacles to e-commerce caused by different VAT regimes across the EU. In his question, Mr. Belet refers to obstacles emerging from the application of VAT on e-services and -goods using the destination principle. He asks the Commission whether a vendor can deny a consumer in another Member State access to a product or service on account of the different VAT rates and the costs arising from them, if this is not the case whether the Commission is aware of this new obstacle to e-commerce created by the new system, and what measures does the Commission propose in order to tackle this side-effect. In his reply, Commissioner Oettinger (digital economy) emphasises that Member States have to ensure that the recipient of a service is not subject to discrimination based on nationality or place of residence unless justified by objective criteria, including based on costs rising from non-harmonisation of rules. To rectify scenarios described by the MEP, a proposal to address VAT obstacles on cross-border e-commerce should be adopted by the end of 2016 (NB expected for 30 November). The Commission intends to propose a simplification of the current rules for Mini-One-Stop-Shop (MOSS) – most notably the introduction of a threshold for small businesses and using home country rules for invoicing and record keeping – and to extend the MOSS mechanism to all sales of goods and services to customers located in other Member States.

National taxation for health reasons and relationship to EU State aid rules – 23 November

The European Commission has replied to a question asked by the MEP Anneli Jäätteenmäki (ALDE/FIN) with regard to the relationship between EU state aid rules and application of special taxes for public health purposes. In her question, Ms. Jäätteenmäki refers to Finland abolishing its confectionary tax because of a warning from the Commission according to which the tax is against EU’s state aid rules since it is arguably selective and does not treat similar products equally. She therefore asks the Commission what it thinks about public health taxes on products containing added sugar from a state aid perspective, and whether a more general sugar tax based on the amount of sugar added would be problematic from a state aid rules perspective. In her reply, Commissioner Vestager maintains that special taxes imposed for environmental or health reasons do not fall under state aid rules if Member States can demonstrate that all activities or products are subject to the tax on equal grounds. If, however, the effect of the tax is to apply different tax treatment in such a way that it favours certain undertakings or the production of certain goods over others which are in a comparable legal and factual situation in the light of the intrinsic objective pursued by the tax, the measure is prima facie selective and constitutes state aid.

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