- Member States discuss BEPS, the Financial Transactions Tax as well as the future of the Code of Conduct Group on Business Taxation – 8 December
- FEE responds to Commission public consultation on VAT for e-commerce – 15 December
- European Parliament adopts Dodds-Niedermayer report on corporate tax transparency – 16 December
- The Court of Justice of the EU provides ruling on tax advisory services – 17 December
Commission Inception Impact Assessment on CCCTB – 7 December
The European Commission has published an Inception Impact Assessment (IIA) on the Common Consolidated Corporate Tax Base (CCCTB). It outlines plans for the new CCCTB proposal expected for next year, including the features and objectives of an impact assessment in which the Commission will analyse the expected impacts of both mandatory and non-mandatory CCTB and CCCTB options. Although the document contains no new revolutionary information, it does firmly confirm what has been anticipated so far and provides, whilst providing a glimpse into immediate next steps. Particularly interesting is the possibility of additional “more targeted” stakeholder consultations to complement the ongoing public consultation on CCCTB.
An inception impact assessment precedes a proper impact assessment, and describes the problem in question, any issues related to subsidiarity, policy objectives and options, and the probable impact of any given policy option. In other words, it defines in greater detail the challenges ahead and puts forward a rough blueprint for the impact assessment itself, which may or may not include indications on future regular public consultations (like the one already opened for CCCTB), or more targeted consultations (as this particular IIA does).
EU and the Republic of San Marino sign new tax transparency agreement – 8 December
The EU finalised a new tax transparency agreement with San Marino in early-December. Starting 2017, both jurisdictions will have to exchange information on each-others’ residents’ financial accounts. The agreement by implication signifies the end of bank secrecy between San Marino and the EU. As is the case with other similar deals between the EU and third countries, EU Member States and San Marino will receive from each other a number of details including tax identification numbers and financial and account balance information. The EU already signed a similar agreement with Switzerland in May and with Liechtenstein in October this year. Technical discussions with Andorra were finalised recently, whilst negotiations with Monaco are ongoing but at an “advanced stage”. The agreements are in line with OECD recommendations with regard to automatic exchange of information.
December infringements’ package – 10 December
The European Commission has published its infringements’ package for December. In the area of tax, two reasoned opinions were launched; one concerning Germany, and the other Italy. The German case relates to the excise duty rules for small non-commercial mail containing tobacco products sent by private individuals which the Commission is requesting Germany to change. The Italian case in turn relates to Commission’s request for Italy to change its legislation on excise duties for petrol and diesel in the Friuli-Venezia Giulia region. In both cases, the Member States concerned have two months to provide the Commission with a “satisfactory response”, or the Commission may refer them to the Court of Justice of the EU.
Commission proposes amending Directive on the common system of value added tax, with regard to the duration of the obligation to respect a minimum standard rate – 14 December
The European Commission has published an Amending Directive on the existing Directive establishing a minimum standard VAT rate of 15% across the EU (Directive 2006/112/EC). The main change introduced by the Amending Directive is the prolongation of the period during which the standard rate may not be lower than 15% from the initial 1 January 2016 to 31 December 2017. The Directive explains the prolongation by the fact that pending the final arrangement of a definitive VAT regime for intra-Union trade, it would be premature to set a permanent standard rate level or to consider changing the minimum rate level. This is important in order to ensure legal certainty whilst allowing for further review. This does not however preclude a further revision of VAT legislation before 31 December 2017 in order to address final arrangements of a definitive VAT regime for intra-Union trade.
FEE responds to Commission public consultation on VAT for e-commerce – 15 December
FEE has responded to the Commission consultation on modernising VAT for cross-border e-commerce. In its reply, FEE supports several suggestions aiming to minimise burdens for companies involved in cross-border e-commerce, with particular focus on ensuring a level playing field between companies. FEE furthermore supports a VAT exemption threshold for cross-border supplies, with appropriate rates (€10,000-€50,000) to ensure that there are minimal distortions to Member States’ economies.
Motion for a European Parliament resolution on split payment – 26 November
An Italian MEP Mara Bizzotto (ENF/ITA) has published a Motion for resolution on split payment, relating to a decree recently introduced by the Italian Ministry of Economy which introduces a split payment scheme for VAT payments by public bodies. Ms. Bizzotto argues that the scheme will result in a further loss of liquidity for SMEs. She consequently calls on the Commission to push the Italian authorities to review the split-payment system.
European Parliament adopts Dodds-Niedermayer report on corporate tax transparency – 16 December
The European Parliament has formally adopted the Dodds-Niedermayer report on corporate tax transparency, with 500 votes in favour, 122 against and 81 abstentions. During the vote, two amendments calling for the establishment of guidelines and a legal framework for tax advisors were defeated (from S&D and Greens-EFA), as were all other amendments that were submitted for the final vote. The report in its current form notably calls for public Country by Country Reporting (CBCR), for a Common Consolidated Corporate Tax Base (CCCTB) introduced in two separate steps (as the Commission intends to do), the introduction of an European Fair Tax Payer label, a European Tax Identification Number, guidelines for patent boxes, common definitions for concepts such as “permanent establishment” and “economic substance, as well as the establishment of EU criteria for defining tax havens as well as counter-measures against those using them. The European Commission now has three months to react to the recommendations, and to explain the reasons in case it decides not to introduce corresponding legislation.
ECON Committee publishes four studies on tax – 17 December
The European Parliament ECON Committee has published four reports on taxation in the EU, each approaching the topic from a different angle. The purpose of the reports is to provide MEPs with additional information ahead of next year’s anticipated heavy tax agenda at EU-level. All four reports focus in particular on the absence of EU-level coordination regarding aggressive tax planning as well as its effects.
The first report is titled Role and functioning of certain EU groups in the area of taxation. It focuses on recent EU initiatives on tax issues, in particular tax avoidance and “aggressive tax planning”. The report provides an overview of the history, methods, results and interaction of three EU groups, namely the Council Code of Conduct Group on Harmful Business Taxation, the EU Joint Transfer Pricing Forum Expert Group and the Commission Expert Group on Automatic Exchange of Financial Account Information. It concludes that there is little interaction between the three groups, but that there would be great benefits to greater cooperation especially in the area of tax rulings.
The second report, titled Promoting Good Tax-Governance in Third-Countries: The Role of the EU, takes stock of the difficulties of sustaining high tax rates in a context of globalisation, which provides individuals and businesses with greater opportunities to take advantage of economic opportunities elsewhere. This has generated concerns about “unfair international tax competition”, and the report puts forward a set of recommendations for how the EU can use taxation to promote good governance in third countries, in particular with the view of tackling smuggling, tax evasion, money laundering, bribery and other cross-border financial crimes.
The third report is titled Corporate tax practices and aggressive tax planning in the EU, and provides background on the political debates and developments to reform tax systems at EU-level as well as the OECD BEPS project. It analyses and criticises the limitations of the international tax system. The paper furthermore describes “aggressive tax planning” schemes devised by multinationals, and takes a particularly detailed look at the functioning of the Platform for Tax Good Governance, Aggressive Tax Planning and Double Taxation. The paper concludes that the international tax system is in need of reform, with Member States and companies having ample opportunities to exploit mismatches and loopholes in tax rules. It argues that the BEPS recommendations are probably not enough to sufficiently prevent such practices.
Finally, the fourth report which is titled ‘Tax rulings’ in the EU Member States focuses on what advance tax rulings, advance pricing agreements and other tax arrangements currently are like and how they are meant to develop. It provides in addition an overview of tax rulings broadly and tax ruling practices in the EU specifically.
Study 1: http://www.europarl.europa.eu/RegData/etudes/IDAN/2015/569977/IPOL_IDA(2015)569977_EN.pdf
MEP Questions & Answers
Position of Luxembourg Presidency regarding tax reporting by multinationals on a country-by-country basis – 7 December
The Council has replied to a question asked by the MEP Hugues Bayet (S&D/BEL) in mid-August with regard to the Luxembourg Presidency’s position on Country-by-Country-Reporting (CBCR). In its reply, the Council states that it will monitor the results of the Commission’s ongoing public consultation on CBCR, the results of which are expected for Q1 2016 (NB probably 8 March).
TAXE Special Committee: documents requested – 8 December
The European Commission has replied to a question asked by the MEP Bernd Lucke (ECR/GER) in late September with regard to access to documents requested by the European Parliament TAXE Committee for investigation purposes. In his question, Mr. Lucke refers to Commissioner Moscovici’s reply to the access to document requests in which he stated that it is not possible to comply with the request with regard to those requested documents to which the consent of Member States for their provision was not received. He consequently asked the Commission whether it nevertheless attempted to obtain the requested information, and if so which dates appear on the requests to Member States, when did the Member States provide their replies and which Member States refused their consent. In his reply, Commissioner Moscovici confirms that the requests were dated 1 June 2015 and 15 September with a reminder sent on 24 September. Belgium, Estonia, Spain, Hungary, Latvia, Luxembourg, Malta, the Netherlands, Romania, Slovenia, Finland, Sweden and the UK either refused to give their consent to the Commission sharing the documents concerned with the TAXE Special Committee, or did not reply by the deadlines.
Council publishes recommendations ahead of the Commission’s anti-BEPS proposal – 2 December
The Council has published a document outlining its priorities for the implementation of BEPS recommendations, ahead of the Commission’s anti-BEPS Directive currently anticipated for 27 January. The document consequently provides some insights into how the legislative process for the dossier will advance once the Commission proposal is out, given that the European Parliament has already put forward its own priorities in the form of two reports on corporate taxation.
The key features of interest of the document include a definition of permanent establishment; interest limitation rules, including a rule restricting interest deductions on a fixed EBITDA ratio of 30%; exit taxation rules; rules to address hybrid mismatches, including on cases involving third countries; a call for Member States to “ignore” a tax advantage arrangement that notably “defeats the object or purpose of the applicable tax law”; a switch-over clause ensuring that foreign income is taxed with a “deduction of the tax paid in a third country on this income”, and with a low-tax level defined as 40% of the concerned Member State’s effective tax rate; and rules concerning controlled foreign companies, including rules on entities residing in third countries where that entity’s profits are taxed at 40% or lower of the concerned Member State’s effective tax rate.
Council discusses BEPS, the Financial Transactions Tax as well as the future of the Code of Conduct Group on Business Taxation – 8 December
On 8 December Luxembourg held the last Economic and Financial Affairs (ECOFIN) ministers’ meeting under its Presidency. Most interestingly, the ministers discussed and progressed on a number of tax dossiers, including the Financial Transactions Tax (FTT), CCCTB, BEPS, the future of the Council’s Code of Conduct Group on Business Taxation, as well as providing endorsement for the 6 October compromise on automatic exchange of information on tax rulings. The results can be considered relatively significant given the conventional reluctance of Member States to address tax policy issues at the EU-level. The next Presidencies (Dutch and Slovak) are expected to maintain the momentum through next year, with a number of key tax initiatives to be expected on anti-BEPS (27 January), corporate transparency (8 March), CCCTB (H2 2016), as well as an Action Plan for VAT reform (8 March). The true significance of the Council’ ambitious tax agenda will however be measured only once the Commission comes up with proposals, and the ways in which the Council reacts to them.
Court of Justice of the EU
The Court of Justice of the EU provides ruling on tax advisory services – 17 December
The Court of Justice of the EU (CJEU) has published a ruling on the provision of cross-border tax advisory services in the EU. The case questioned whether German rules on tax advice provision are compatible with EU law with regard to the provision of services in the Single Market. The existing German law makes the provision of professional tax consulting services subject to authorisation which notably depends on whether or not the representatives and advisors providing “professional assistance in tax matters” have appropriate professional qualifications. The CJEU ruling concludes that “legislation of a Member State which defines the conditions of access to the activity of professional assistance in tax matters may not restrict the freedom to provide services of a tax consultancy company — formed in accordance with the law of another Member State in which that company is established”. In other words, another Member State cannot deny access to tax service provision to a tax consultancy company that is legally established in another Member State, even if the company is not in full compliance of national rules with regard to tax service provision.
French National Assembly endorses public Country-by-Country Reporting – 4 December
According to Eurodad, the French National Assembly has voted in favour of an amendment that introduces the obligation of publicly disclosing Country by Country Reporting (CBCR) information. The move would be a step further from the OECD BEPS recommendations which maintain that the CBCR information should only be exchanged between tax authorities. EU Member States such as Spain have already taken legislative measures to comply with the OECD recommendations on CBCR, but intend not to establish public disclosure requirements.
“Hillary Clinton plans ‘exit tax’ to tackle inversions” – 7 December
According to the Financial Times (article only available to subscribers), Hillary Clinton has proposed an “exit tax” applicable to companies that move their headquarters from the US to other countries. The purpose of the tax would be to deter multinationals from shifting headquarters for tax reasons, as potentially happened recently in the context of Pfizer’s takeover of Allergan. Hillary Clinton is currently campaigning to become the Democratic Party’s candidate for the US Presidency, and remains one of the overall favourites in the presidential race.
“HMRC sets sights on tax evasion” – 8 December
According to ICAEW’s Economia, the UK HMRC is planning further efforts to tackle tax avoidance and evasion, and has been granted an additional funding of £800 million for this purpose. Planned measures include higher penalties, legislation to encourage compliance, as well as new measures to fight against offshore tax evasion.
“Italy says international tax dodger amnesty is bringing in billions” – 10 December
According to the Guardian, the Italian government is estimated to receive an additional €3.8 billion in tax revenues after a voluntary disclosure scheme revealed that “tax dodgers” have been hiding almost €60 billion of undeclared wealth hidden abroad. The voluntary disclosure scheme was launched in late-2014, and was based on an amnesty arrangement which granted impunity in exchange for disclosure of hidden assets.
“Jersey account holders receive final UK tax warning” – 11 December
According to the Financial Times (article only available to subscribers), UK HMRC has issued a “last warning” to taxpayers with bank accounts in Jersey to declare possible undisclosed tax liabilities by 2016, or face the threat of tax evasion investigations. According to the article, the warning concerns clients of HSBC Jersey, who have been requested to sign a certificate which declares that they have no tax liabilities on offshore assets.
“Revenue considers dusting down 1970s-style business tax” – 11 December
According to the Financial Times (article only available to subscribers), UK HMRC is considering to bring back “apportionment rules”. According to the article, this would mean that undistributed profits of companies controlled by five or fewer individuals “could be taxed as though they had been distributed to shareholders”.
“Apple’s Irish tax deal faces further scrutiny by Brussels” – 14 December
According to the Financial Times (article only available to subscribers), the European Commission has submitted further questions to Irish authorities with regard to its current investigation into a ruling granted by Ireland to Apple. According to the article, this means that the Commission decision will come later than anticipated by Irish authorities, who were expecting a verdict before the general elections of February 2016.
Russian Digital VAT law expected for 2017 – 15 December
According to Taxamo, Russia is anticipated to put forward a digital VAT law by 2017. The law will introduce an 18% VAT rate on foreign digital service companies supplying Russian consumers. According to the article, the expected revenue from the new VAT will be “quite significant”, as the annual income from the provision of digital services by foreign companies to Russian consumers has consistently amounted to over €3 billion.
China takes important step to boost international co-operation against tax evasion – 16 December
China has signed the Multilateral Competent Authority Agreement (MCAA), enabling it to begin the exchange of information on tax and automatic exchange of financial account information with other countries in 2018. China is the 77th jurisdiction that has signed the Agreement, which provides for annual automatic exchange of all financial information.
Commission opens in-depth investigation into restructuring aid for the Danish Vestjysk Bank A/S and approves public financing to Poste Italiane – 4 December
The European Commission has opened an investigation into restructuring aid granted by Denmark to the Danish Vestjysk Bank. The Commission will in particular assess whether the granted aid is in line with EU rules on state aid, with particular focus on whether the restructuring of the bank will restore its economic viability and not pose a threat to fair competition. On another matter, the Commission has ruled that Italy’s compensation to Poste Italiane fulfils a public service purpose, and is consequently in line with EU state aid rules.
Luxembourg appeals against Commission’s Fiat decision – 7 December
According to Tax-News, Luxembourg has appealed against the European Commission’s state aid decision with regard to the Fiat case. According to the Luxembourgish authorities, the purpose of tax rulings is to provide taxpayers with greater legal certainty, but the Commission’s unexpected approach (i.e. using state aid rules) to tackling certain tax rulings has undermined this principle.
“Bermuda accuses critics of ‘a lack of respect’ over transparency” – 6 December
According to the Financial Times (article only available to subscribers), Bermuda has slashed back at critics accusing it of being an offshore centre enabling tax dodging, corruption, financing of terrorism and money laundering. Bermuda argues that it is subject to a smear campaign with the purpose of stereotyping British overseas territories.
FTT ‘counter-productive’ to efforts to get Europe growing – PensionsEurope – 7 December
According to IPE, PensionsEurope has re-iterated its critique of the Financial Transactions Tax (FTT) currently negotiated between 10 EU Member States (previously 11, until Estonia withdrew its participation) under the “enhanced cooperation” procedure. PensionsEurope argues that a potential FTT could be detrimental to EU priorities in the field of fostering jobs and growth. Earlier this month the 10 participating Member States agreed to continue work on the FTT, with the aim of concrete progress within the first half of 2016.
“6 key points for TAX justice in Europe” – 7 December
Euractiv has published a video with several S&D MEPs listing a total of six recommendations to foster tax justice in the EU. One of the listed measures focuses on tax advisors and their role in enabling tax planning. Overall, the recommendations on the video are in line with those put forward in the TAXE and ECON Committee reports on corporate tax, both of which have been recently adopted by the European Parliament.
“Future of corporation tax called into question” – 7 December
According to the Financial Times (article only available to subscribers), overall enthusiasm for corporation tax in the UK is in decline, with corporate tax revenues as a proportion of all tax income in a consistent fall. According to the article, there are however several political and practical obstacles to eliminating the tax, which is popular amongst the public and raises a significant annual revenue around the £40 billion mark.
“The fall of Jersey: how a tax haven goes bust” – 8 December
The Guardian has published an extensive article about the history and challenges of Jersey as a tax haven. The article paints a gloomy picture of the territory’s future, with its dependence on finance, and describes the local government’s determination to save the current business model.
“Tax and spend in EU differs after crisis” – 10 December
According to the Financial Times (article only available to subscribers), EU Member States have been applying very different “fiscal cures” to address the financial crisis in Europe. Countries such as France and Italy have addressed the crisis by increasing taxes, whilst notably Ireland, Spain and the UK have been focusing on cutting spending. The article refers to a major study conducted on the topic, which revealed a number of anti-crisis measures adopted to different degrees by EU countries.
“Tackling corporate tax avoidance is an alternative to EU austerity” – 15 December
Richard Murphy argues in his Guardian article that measures to fight against tax avoidance by companies is a viable alternative to austerity policies that have been introduced in a number of EU countries in past years. He puts forward a set of recommendations that in his view would essentially contribute to anti-avoidance efforts, including public Country by Country Reporting (CBCR) and a Fair Tax Payer label. He refers in particular to the Dodds-Niedermayer report that was adopted by the European Parliament on 16 December, and commends many of its recommendations. At the same time, a number of civil society organisations also wrote an appeal letter for the Guardian in which they call for MEPs to endorse a Fair Tax Payer label scheme. The recommendation for the establishment of a Fair Tax Payer label did indeed pass the Parliament vote on 16 December.
“Tax efficiency alone is no reason to do a deal” – 13 December
According to the Financial Times (article only available to subscribers), companies’ re-structuring plans and deals to minimise tax obligations may have wider detrimental effects and costs to their businesses that overweigh any gains from tax planning schemes, and warns against using tax considerations as primary drivers behind corporate strategies. At the same time, the article calls on governments to reform and simplify tax systems.
“New website shows European countries that facilitate tax cheating” – 15 December
Tax Justice writes about a new website which ranks European countries by how much they facilitate and enable “tax cheating”. The interactive online map is designed by the Centre for Research on Multinational Corporations (SOMO), and according to Tax Justice’s assessment it demonstrates how countries simultaneously committed to tackling “aggressive tax planning” maintain an enabling environment for tax optimisation strategies by multinationals.
“There is no money behind the fiscal tree” – 15 December
John Kay writes in the Financial Times (article only available to subscribers) that it is unrealistic to claim that public budget cuts can be compensated by reducing waste and tackling tax avoidance. He in particular criticises a number of claims made by Non-Governmental Organisations (NGOs) on the amounts and scale of tax planning schemes employed by multinationals, and claims that tax avoidance tends to reduce tax revenues in developed countries, not in developing ones. Finally, he argues that many calculations on the costs of tax avoidance and evasion are assuming that the transaction values and volumes would stay the same if the tax system gaps were to be filled, which in his view is a false assumption.
“Loss of Tax Revenue across Border” – 16 December
The International VAT Association has published an article on measures planned by various EU Member States to tackle the loss of tax revenue. A number of countries, including Hungary, Czech Republic, Romania, Austria, Norway and France are planning measures such as tighter reporting obligations and increased VAT rates, with the hope that this would increase tax incomes. A full list of measures by country is available from the article itself.
“FRC tells MPs it is still considering examining auditing of HBOS” – 16 December
According to the Guardian, the UK Financial Reporting Council (FRC) has informed MPs that it will continue to review whether or not to further investigate the auditing of HBOS by KPMG’s accountants. FRC has been under criticism due to its earlier decision not to look further into the HBOS corporate loan book.
“UK tax fraud costs government £16bn a year, audit report says” – 17 December
The Guardian refers to a report drafted by the UK government’s independent auditors, which asserts that “tax fraud” is causing a £16 billion annual loss to the public coffers. The report also criticises the HMRC for apparently failing to appropriately tackle tax evasion and activities of organised crime. The report in particular criticised tax authorities for focusing on “easy” smaller-scale prosecution cases, as they should instead direct more attention towards tax evasion and “aggressive tax avoidance schemes” by multinationals.
28/01/2016, 7th Annual European E-Commerce Conference, Forum-Europe, 09:30-18:00, Brussels.
18/04/2016, Reforming regulation of professions: results of mutual evaluation and way forward, European Commission, Brussels.
09/2016, Bruegel Annual Meetings, Bruegel, Brussels.