Commissioner Moscovici delivers speech on the Commission’s corporate tax agenda – 20 June
Commissioner Moscovici has delivered a speech at the Berlin Tax Forum’s 2016 Tax Congress. In his speech, Commissioner Moscovici lists the measures that the Commission has taken recently in the field of taxation, and outlines priorities for the immediate future. Of particular interest, he brings up the question of tax advisors when discussing additional measures that are needed due to the Panama Papers scandal. He calls for a “better oversight” of tax advisors’ activities, the need to hold them accountable if they enable “aggressive tax planning”, and confirms that the Commission is currently working on “concrete proposals” to be launched “soon”. More specifically and unrelated to the speech, the Commission is possibly going to publish a Communication on tax advisors in early-July, which may be followed by further measures later in the year or 2017.
European Commission publishes responses to its public consultation on C(C)CTB – 20 June
The European Commission has published the responses it received to the public consultation on Common Consolidated Corporate Tax Base (CCCTB). A total of 175 responses were received. They are allocated into separate categories as responses from enterprises (55), organisations registered in the Transparency register (87), public authorities (1 response – Estonian Ministry of Finance), and private individuals (13). in terms of next steps, the Commission will assess the received responses, and propose legislation probably in November to re-launch the CCCTB in two separate dossiers: one dealing with the common elements, and the other with consolidation.
Three new TAXE II Committee in-depth analyses on taxation – 12 June
The TAXE II Committee of the European Parliament has published a compilation of three studies on tax. The purpose of these studies is to inform the MEPs as they debate, draft amendments and vote on the Committee report.
The first of the three studies is titled Are we moving in the right direction? Public disclosure of tax information & other EC/EP proposals to reduce aggressive tax planning. As the name suggests, the paper goes through recent tax initiatives from both the Commission as well as the European Parliament, assesses the proposed measures and ultimately establishes to what degree the proposed measures are adequate in addressing the tax challenges faced by the EU today. The study concludes that most of the measures so far are designed to plug holes in the existing tax system, whilst more revolutionary changes such as a Common Consolidated Corporate Tax Base (CCCTB) would be required.
The second study, in turn, is titled The Future of Tax Rulings in the EU: Evaluation, Confrontation and Recommendations. The paper looks into the Commission and Parliament proposals for tax rulings, and notably brings up the argument according to which even national tax rulings may have cross-border implications. The study concludes by emphasising the need for better cooperation and cooperation on advance tax rulings, and in particular the principle of cooperative compliance should be widely adopted.
The last and this study, titled EU State Aid Law and National Tax Rulings: 2015-2016 Update, looks into the state aid tax ruling decisions and procedures undertaken by the European Commission in past months. It argues, in particular, that whilst the Commission approach is a welcome first step, it provides insufficient guidance, suffers from unclear selection criteria, the problematic of imposing sanctions when the rules and criteria themselves are unclear, and risks putting EU at risk in face of its international trading partners.
Amendments to ECON Committee report on a definitive VAT system published – 13 June
A total of 239 amendments have been submitted for the draft report prepared by the MEP Werner Langen (EPP/GER), titled Towards a definitive VAT system and fighting VAT fraud (see FEE Tax Policy Update from 13 and 27 May for further details). in terms of next steps, the Political Groups will now engage in negotiations to draft compromise amendments with a reasonable chance of passing the ECON Committee vote. The Committee vote is currently scheduled for 13 July, whilst a Plenary vote is expected for 3 October.
Commissioner Hill attends hearing of the ECON Committee – 14 June
Commissioner Hill from DG FISMA has attended a hearing of the ECON Committee. Amongst a range of topics covered, he also discussed with the MEPs the proposal from April on public Country by Country Reporting (CBCR). The discussion focused mostly on actions of the Capital Markets Union Action Plan published September last year. However, Molly Scott Cato (Greens-EFA/UK) asked a question on CBCR, in particular wondering how it will play together with the Brexit. Commissioner Hill stated that he is convinced that public CBCR will help convince the British to stay in the EU (the hearing took place before yesterday’s referendum).
TAXE II Committee votes on its draft report – 21 June
The TAXE II Committee of the European Parliament has voted on its draft report titled tax rulings and other measures similar in nature or effect. The dossier was adopted with 25 votes in favour, 6 against and 9 abstentions. The leading MEPs on the file are Jeppe Kofod (S&D/DEN) and Michael Theurer (ALDE/GER). A number of amendments concerning tax advisors were adopted. Overall, the adopted amendments call for reforming the Audit Directive and Regulation in order to prevent conflicts of interest in the tax advisory sector, a review or even suspension of free trade agreements with “tax havens”, binding legislation in order to ensure that patent boxes are not being misused and to make sure that they are linked to “genuine economic activity”, guidelines to better define what is allowed with regard to transfer pricing, stronger protection of whistle-blowers, a full Common Consolidated Corporate Tax Base (CCCTB), an EU-wide withholding tax, and a global register of all assets held by individuals, companies and entities, such as trusts and foundations, to which tax authorities would have full access. in terms of next steps, the European Parliament Plenary will vote on the draft report in early-July.
European Parliament appoints members of the Panama Papers Committee – 23 June
The European Parliament Plenary has voted and approved a list of MEPs that will constitute the Panama Papers Committee (PANA Committee). A total of 65 MEPs were designated as full members, including 20 from EPP (centre-Right), 17 from S&D (centre-Left), six from both ALDE (liberal-democrats) and ECR (Eurosceptic nationalists), and four from both GUE-NGL (far-Left) and Greens-EFA. The Committee will be led by a Chair (probably German EPP), up to four Vice-Chairs and two co-rapporteurs to coordinate the Committee’s investigative work (probably again one from S&D and ALDE each, like with the TAXE Committees). The guesses currently are that Werner Langen (EPP/GER) will be the chair, whilst Cora van Nieuwenhuizen (ALDE/NLD) and Jeppe Kofod (s&d/den) to become the co-rapporteurs. The PANA Committee will appoint the representatives for these positions during its first meeting before the summer break.
European charter of taxpayers’ rights – 9 June
The European Commission has replied to a question asked by the MEPs Massimiliano Salini (EPP/ITA) and Fulvio Martusciello (EPP/ITA) with regard to a European charter of taxpayers’ rights. In their question, the MEPs draw attention to the lack of a EU “frame of reference” for relations between tax authorities and taxpayers, based on legal certainty and the fundamental rights of the taxpayer. They therefore ask the Commission whether it has advanced on work leading to such a framework and why it has not yet submitted a proposal on the topic. In his reply, Commissioner Moscovici confirms that such a code of taxpayers’ rights is still under work, and will be legally non-binding. Instead, Member States’ administrations will be encouraged to adopt and apply the principles and practices in order to improve the relations between taxpayers and tax administrations, enhance the transparency of tax rules and improve tax compliance.
Publication of the decision on Gibraltar and the Income Tax Act 2010 – 10 June
The European Commission has replied to a question asked by the MEP Enrique Calvet Chambon (ALDE/SPA) with regard to the publication of a decision on Gibraltar and the Income Tax Act of 2010. In his question, Mr. Calvet Chambon expresses dissatisfaction with an earlier answer he received from the Commission on the matter, stating his fears that Gibraltar might be subject to a new scandal similar to the Panama Papers one. The dispute relates to an investigation launched by the Commission to ascertain whether a new corporate taxation system in Gibraltar favoured certain kinds of companies, yet the final decision has not yet been made public despite a delay of several months. He therefore asks the Commission why it has not yet published the decision, when it will publish it and, with specific reference to the case, why would an individual with no apparent connection to Gibraltar hold assets located outside Gibraltar in a company incorporated in Gibraltar. In her reply, Commissioner Vestager states that the delay is due to procedural issues raised by the “Member State” (UK?). Moreover, the Commission investigation comes from a state aid perspective, and as such pays no attention to the actions or motivations of individual taxpayers.
Information on the Panamanian company Mossack Fonseca – 10 June
The European Commission has replied to a question asked by a group of GUE-NGL MEPs with regard to Mossack Fonseca. In their question, the MEPs ask the Commission whether it has estimations to the amounts that taxpayers have avoided paying with the help of offshore companies, and what action the Commission is planning to undertake in order to prevent such practices. In his questions, Commissioner Moscovici states that the Commission does not have such estimates, points out that the Commission has already undertaken a number of measures to address the issue, and confirms that the Commission will also “explore the possibility” of introducing “more effective disincentives” for promoters and enablers who help clients conceal money offshore.
State aid: tax treatment of seaports – 10 June
The European Commission has replied to a question asked by the MEP Esther de Lange (EPP/NLD) with regard to the tax treatment of seaports. In her question, Ms. de Lange refers to a recent Commission decision calling on the Netherlands to withdraw a corporate tax exemption from its six (public) seaports in order to comply with EU rules on state aid. She asks the Commission whether it is seeking a level playing field, which other countries’ sea ports it is investigating, and questions the fairness of lifting the tax exemption in the Netherlands whilst competitors may continue with the status quo. In her reply, Commissioner Vestager states that the procedure in the Dutch case is more advanced because the Commission was made aware of the problem earlier than for other Member States. Moreover, according to EU case-law, the application of state aid rules such as a tax exemption in one Member State cannot be justified by the existence of similar measures in other Member States.
Panama’s tax agreements with EU Member States – 13 June
The European Commission has replied to a question asked by the MEP Fabio de Masi (GUE-NGL/GER) with regard to tax agreements between Panama and EU Member States. In his question, Mr. de Masi asks the Commission how many, and which, EU Member States have double taxation agreements with Panama, whether Panama has signed any agreements to exchange tax information with EU Member States, and whether Commission is planning punitive action against these countries. In his reply, Commissioner Moscovici states that Panama has such agreements with eight Member States (Czech Republic, France, Ireland, Luxembourg, Netherlands, Portugal, Spain and the UK), and information exchange with three other Member States (Denmark, Sweden and Finland). He however points out that after the Panama Papers leaks, Panama has officially announced its readiness to establish a dialogue at international technical level to explore multilateral mechanisms for exchange of tax information.
Tackling corporate tax avoidance – 20 June
The European Commission has replied to a question asked by the MEP Neena Gill (S&D/UK) with regard to tackling corporate tax avoidance. In her question, Ms. Gill refers to the Commission proposal on public Country by Country Reporting (CBCR), and asks the Commission whether it will impose sanctions on non-compliant companies, and whether it has estimations as to by how much public CBCR can reduce the amount of tax income lost to tax planning each year. In his reply, Commissioner Hill reminds that the proposed amendment to the Accounting Directive provides for sanctions that are “effective, proportionate and dissuasive”. Moreover, Commissioner Hill maintains that although there is no information as to how much public CBCR can help in gathering lost tax income, he is convinced that the initiative will prove useful in this regard.
uncompetitive taxation system – 21 June
The European Commission has replied to a question asked by the MEP Daniel Buda (EPP/ROM) with regard to uncompetitive tax systems. In his question, Mr. Buda refers to a study published by the Foreign Investors Council which stresses that Romania’s taxation system is still uncompetitive compared to that of other European countries. He therefore asks the Commission what tools does it have to help develop a competitive taxation system in Romania, taking account of the best practice models of the other Member States. In his reply, Commissioner Moscovici refers to the Annual Growth Survey and the European Semester as means through which the Commission can recommend positive changes to Member States’ tax systems. He moreover refers to the recently launched European Platform to enhance cooperation in the prevention and deterrence of undeclared work.
Role of banks in the Panama Papers scandal – 22 June
The European Commission has replied to a question asked by the MEP Hugues Bayet (S&D/BEL) with regard to the role of banks in the Panama Papers scandal. In his question, Mr. Bayet refers to the pivotal role of banks in setting up offshore structures discovered in the Panama leaks. He therefore asks the Commission whether it intends to revise existing Directives or come up with new ones in an effort to crack down on the “rule-bending” by major European banks and the role they play in tax planning arrangements. He moreover emphasises the importance of cracking down “tax havens” in the fight against terrorism. In his reply, Commissioner Moscovici reminds that the Commission is analysing the introduction of additional measures to strengthen the anti-money laundering framework and its implementation, in order to further increase transparency and anti-money laundering requirements around corporate structures and arrangements. The Commission is, in particular, seeking a global push for greater transparency, in particular with regard to establishing beneficial ownership registers and automatic exchange of information of beneficial ownership information.
Reducing VAT on musical instruments – 22 June
The European Commission has replied to a question asked by the MEP Joao Ferreira (GUE-NGL/POR) with regard to reduced VAT on musical instruments. In his question, Mr. Ferreira asks the Commission for the possibility of applying a reduced VAT rate on musical instruments. In his reply, Commissioner Moscovici states that the VAT Directive already provides for reduced VAT for music related areas, including supply of services by composers and performing artists. Moreover, taxable persons may generally deduct the input VAT paid on musical instruments. Finally, as part of the VAT Action Plan the Commission intends to provide greater freedom to Member States in setting VAT rates. A proposal on this is expected for 2017, and it will require a unanimity between Member States.
ECOFIN agrees on ATAD, work on FTT to continue during second half of 2016 – 17 June
The EU Finance Ministers have reached an agreement on the Anti-Tax Avoidance Directive (ATAD). This follows difficult yet relatively fast negotiations in the Council at the highest political level (Ministerial) – Member States were expected to agree on the proposal at the ECOFIN in end-May, but had to postpone the agreement by a month due to remaining disagreements. Most Finance Ministers were prepared to agree on the proposal on Friday 17 June. However, both Belgium and the Czech Republic expressed reservations until the last moment. With regard to the provisions, the following changes were introduced (this is a non-exhaustive list):
Moreover, the 10 Member States working on a Financial Transaction Tax (FTT) agreed to continue work on the dossier during the second half of the year. This follows a last-minute proposal by Austria to further address two remaining issues: the tax on derivatives (which Austria maintains should not negatively affect public borrowing costs), as well as rendering the tax collection as cost-effective as possible.
“Slovaks will try to break the EU ‘integration’ taboo” – 21 June
According to Politico, the Slovak Presidency will aim for closer cooperation in the EU. This will include looking into the possibility of opening a debate on fiscal integration. According to the Slovak Ministry of Foreign and European Affairs, fiscal integration would constitute a part of the economic and monetary union. As the article points out however, in the current climate of Euroscepticism, it is unlikely that Member States will have the appetite to take bold steps towards further integration in the area of fiscal affairs.
ECOFIN Report to the European Council on Tax issues – 23 June
The EU Finance Ministers have submitted a report on EU tax issues for the attention of the European Council (Heads of EU Governments) that will be meeting early next week. The report provides an overview of ongoing and recent tax initiatives and debates at the EU level, both from the direct and indirect tax sides, and touches upon the Anti-Tax Avoidance Directive (ATAD), the VAT Action Plan, the Interests and Royalties Directive, Country by Country Reporting (CBCR) – both public and between administrations – and more. It also provides an overview of the recent work and upcoming changes in the Code of Conduct Group.
Opinion of the Advocate General on the applicability of VAT rules on sport – 14 June
The Court of Justice of the EU (CJEU) has issued an opinion of the Advocate General with regard to the applicability of VAT rules on sport. The case code is C‑432/15. In the opinion, the Advocate General notably proposes to the Court that the operation of racing stables cannot as a whole be subject to a reduced VAT rate.
Ruling on the determination of the amount of VAT deduction – 16 June
The Eighth Chamber of the Court of Justice of the EU (CJEU) has issued a ruling on the determination of the amount of VAT deduction. The case code is C-186/15. In the ruling, the Court notably establishes that Member States are not required to apply the rounding-up rule laid down in the VAT Directive (2006/112/EC) if the deductible proportion is calculated in accordance with one of the derogating methods set out in Article 173(2) of that Directive.
Ruling on taxation on expiry of the adjustment period – 16 June
The Tenth Chamber of the Court of Justice of the EU (CJEU) has issued a ruling on deductions on taxation on expiry of the adjustment period. The case code is C‑229/15. In the ruling, the Court establishes that when a taxable person ceases to carry out a taxable economic activity, the retention of goods by that taxable person, where VAT on such goods became deductible upon their acquisition, can be treated as a supply of goods for consideration and be subject VAT under certain conditions.
Ruling on the calculation of the reimbursement owed to the passenger – 22 June
The Third Chamber of the Court of Justice of the EU (CJEU) has issued a ruling on the calculation of the reimbursement owed by an airline to a passenger. The case code is C‑255/15. In the ruling, the Court notably establishes that when calculating the reimbursement owed to a passenger, that reimbursement must exclude taxes and charges as long as neither the requirement to pay those taxes and charges nor their amount depends on the class for which that ticket has been purchased.
Ruling on VAT input tax deduction – 22 June
The Tenth Chamber of the Court of Justice of the EU (CJEU) has issued a ruling on deductions on VAT input taxes in construction. The case code is C‑267/15. In the ruling, the Court establishes that a taxpayer may fully deduct VAT paid in the construction of a building, when that taxable person has had a building constructed and has sold that building for a price less than the cost of constructing it.
Ruling on tax exemptions of non-commercial public radio and television bodies – 22 June
The First Chamber of the Court of Justice of the EU (CJEU) has issued a ruling on tax exemptions for non-commercial public broadcasting organisations. The case code is C‑11/15. In the ruling, the Court establishes that public broadcasting funded by a compulsory statutory charge paid by owners or possessors of a radio receiver falls outside the scope of the VAT Directive 77/388/EEC.
Public CBCR proposal advances in France – 9 June
As reported notably by Euractiv, the National Assembly of France has approved amendments introducing public Country by Country Reporting (CBCR) to the so-called Sapin II law. The rationale behind the move is notably to “name and shame” multinationals who may be engaging in questionable tax optimisation practices. The initial scope of the proposal would be €750 million, but this would fall all the way to €250 million after four years of adoption. NGOs and the Left, however, criticise the amendments for being insufficient.
“Eight Percent Increase In Serious UK Tax Evasion Cases” – 13 June
According to Tax News, the UK HMRC has identified an 8% increase in serious tax evasion cases during the period of 2015-2016. The data is based on research conducted by the law firm Pinsent Masons. Pinsent Masons argues that the rise is at least partially the result of increased political pressure to take a tougher stance against tax avoidance and evasion. Moreover, according to the company’s estimations the number of tax crime prosecutions will triple in the next five years.
Switzerland planning to introduce a notional interest deduction and a patent box – 14 June
Switzerland is planning to introduce a notional interest deduction as well as a patent box. The plans are part of a corporate tax reform package adopted by the Swiss National Council. The measures are to be finalised in a last vote, after which it is expected to probably go to a referendum in line with the country’s direct democratic traditions.
“US Accountants Seek Virtual Currency Tax Guidance” – 16 June
According to Tax News, the American Institute of Certified Public Accountants (AICPA) has written a letter to the US Internal Revenue Service (IRS) in which it calls for further guidance on the applicability of existing US tax legislation to transactions conducted with virtual currencies. In the letter, AICPA notably argues that virtual currency transactions further complicate reporting requirements, and lists a number of specific areas related to virtual currencies where such additional guidance would be very much welcome.
“Germany coalition reaches deal on inheritance tax” – 20 June
According to Financial Times (article only available to subscribers), the German government has reached an agreement on inheritance tax. The agreement follows 18 months of disputes and debates on preferential tax treatment of family businesses, criticised by certain opposition members as constituting an unfair advantage for businesses at the expense of state income and equality. The German Constitutional Court ruled earlier in 2014 that the scheme indeed provides unfair advantages to business owners over other taxpayers. According to the article, the agreement reached maintains the inheritance tax exemption for a majority of family businesses, but on the condition that they continue to operate and generate jobs.
The Dutch Government opens public consultation on interest limitation rules – 20 June
The Dutch Government has launched a public consultation on interest limitation rules. The new rules would form a part of a wider Tax Plan to be launched in 2017. The main purpose of the planned amendments to the existing tax legislation is to reduce the potential for abuses. The consultation is open until 18 July 2016.
“French parliament scraps planned extra tax on palm oil” – 23 June
According to Thomson Reuters, the French National Assembly has rejected the proposal for an additional palm oil tax (see FEE Tax Policy Update from 18 March for additional details). The measure was heavily criticised by producers including Indonesia and Malaysia, who argued that the measure would breach international trade rules. The aim of the measure was to discourage the production of palm oil due to environmental damage caused by plantations.
OECD Council approves incorporation of BEPS amendments into the Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations – 15 June
The OECD Council has adopted amendments to the Transfer Pricing Guidelines as established in BEPS Actions 8-10 as well as Action 13 (Country by Country Reporting). It is hoped that the amendments will further clarify and provide greater legal certainty on the applicable transfer pricing provisions.
“Time not right for public registers of beneficial ownership, says OECD tax chief” – 15 June
OECD’s Pascal Saint-Amans has argued that the “time is not right” for public Country by Country Reporting (CBCR) or beneficial ownership registers. Countries such as the US and Japan are particularly against public CBCR. In the absence of public CBCR commitments by such countries, there is little prospect that the public CBCR information is relevant or accurate, Mr. Saint-Amans argues.
“Hong Kong To participate In BEPS Project As Associate” – 20 June
According to Tax News, Hong Kong has agreed to participate in the OECD BEPS project as an associate. This means that Hong Kong will participate on remaining standard-setting projects as well as in reviewing and monitoring implementation of the BEPS Actions. The government of Hong Kong argues that by participating in the BEPS project, the jurisdiction will be able to demonstrate that it fulfils its international obligations and improves its international reputation.
“Noonan: EC Decision On Apple Expected Next Month” – 17 June
According to Tax News, the Commission is expected to issue a decision on the tax ruling issued by Ireland to Apple. The decision is anticipated for July, according to the Irish Minister of Finance Michael Noonan. Mr. Nooman, moreover, stated that Ireland will take the decision to EU courts if it rules against the arrangement.
“Tax breaks for the big hit the smallest” – 13 June
In his article published in the EU Observer, Nikolas Nielsen puts forward the argument that tax optimisation by multinationals undermines fair competition and by extension hurts smaller businesses most. The article discusses recent or upcoming tax measures that the EU is undertaking in order to address tax avoidance by multinationals, and in the end mentions the lack of a common European tax law as one of the roots of the problem.
“Why unfair tax treaties hold back developing countries” – 15 June
Lovisa Moller has written in the Guardian on the impact that “unfair tax treaties” have on the developing world. She argues, in particular, that tax treaties and the tax optimisation by multinationals that these treaties enable, undermine the ability of developing countries to finance public services such as education and healthcare. The article therefore calls for a better alignment of the UK’s tax treaties with its stated development goals.
Eurodad publishes report on the benefits of public CBCR and the role of DFIs – 16 June
The civil society organisation Eurodad has published a report which argues that public Country by Country Reporting (CBCR) from a development perspective. It maintains that the sheer scale of “aggressive corporate tax planning” – although legal – undermines domestic resource mobilisation in the developing world. On top of emphasising the benefits of public CBCR, the report argues that Development Finance Institutions (DFIs) have a key role to play in the public CBCR landscape.
29/06/2016, Taxation in the digital economy, EIF, Brussels.
29/06/2016, Tax is a feminist issue!, Greens-EFA Group, Brussels.
29/06/2016, Agenda of the Slovak Presidency, WMC & Hanns Seidel Foundation, Brussels.
6-7/09/2016, Bruegel Annual Meetings, Bruegel, Brussels.
13/10/2016, EPC 20th Anniversary Conference, EPC, Brussels.