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The European Commission has published a working paper in which the VAT Committee was requested for an opinion about the possible VAT implications of transfer pricing. The Committee is asked to reflect on whether transfer pricing adjustments could be seen as a consideration given in exchange for a supply. The document states, in broad terms, that there is a tension between the transfer pricing rules set out for the purposes of direct taxation which, based on the arm’s length principle seek to arrive at the arm’s length valuation of a transaction (i.e. the open market value), and VAT rules, generally based on the existence of a supply for consideration, where consideration is seen as a subjective value (i.e. the price actually paid).
European Commission has launched a public consultation on the harmonisation and simplification of general arrangements for excise duty, ahead of a possible revision of the Council Directive 2008/118/EC. According to the Commission, there might be scope to improve the Directive in order to reduce administrative burden for both Member States and economic operators and reduce distortions in the internal market. The consultation is intended to gather the views of relevant stakeholders on a set of possible options for the revision.
The Directive sets out the general procedures for the holding and movement of excise goods (alcohols and alcoholic beverages, manufactured tobacco products, energy products) in the EU. It also explains the procedures for deferring payment of excise duty available to authorised traders who hold or move excise goods.
As part of an interview for the EU-focused media outlet, Euractiv, Commissioner Moscovici has elaborated on what he considers to be his priorities in the area of tax for the year to come. These include addressing the issue of tax intermediaries, setting up a EU-list of non-cooperative jurisdictions, tackling VAT fraud, and taking forward the proposals on a Common Consolidated Corporate Tax Base (CCCTB).
A total of 272 amendments have been submitted to the draft report on public Country by Country Reporting (CBCR), co-prepared by the MEPs Evelyn Regner (S&D/AUT) and Hugues Bayet (S&D/BEL). On the Left-side of the political spectrum, S&D, Greens-EFA and GUE-NGL all support aligning the threshold with that of the Accounting Directive – €40 million. All political Groups with the exception of EPP and ECR are in favour of expanding the number of items to be disclosed from those proposed by the Commission – the liberal ALDE Group, for example, proposes to include the number of hours worked. Markus Ferber (EPP/GER) proposes to restrict the text’s scope to quoted parent companies, whilst the liberals propose to exclude groups with headquarters outside of and only limited presence in the EU. Finally, EPP and ECR are in favour of greater flexibility for entities with parent companies outside of the EU – effectively proposing a ‘comply or explain’ scheme comparable to the one currently being discussed by Member States in the Council. In terms of next steps, the ECON-JURI joint Committee vote is currently scheduled for 30 May.
A total of 25 amendments have been tabled for the European Parliament report on VAT rates applicable to e-publications. The dossier in the Parliament is led by the MEP Tom Vandenkendelaere (EPP/BEL). An ECON Committee vote should be expected in the upcoming weeks, whilst a vote in Plenary on the dossier is currently scheduled for 31 May. As a reminder, the European Parliament may only submit its non-binding opinion, whilst the Member States will decide by unanimity on the proposal.
PANA Committee has held a hearing on the impact of offshore schemes and structures as revealed by Panama Papers on developing countries. The hearing was attended by Alvin Mosioma from Tax Justice Network Africa, Will Fitzgibbon from the International Consortium of Investigative Journalists (ICIJ) and Nuhu Ribadu – a former Nigerian government anti-corruption official. As the theme implies, the hearing focused on assessing the anti-fraud and anti-tax evasion capabilities in the developing world and specific case study countries, and the potential impact that fraudulent practices and tax base erosion have on the economies and tax yields in developing regions. This reflects the scope of the PANA Committee’s work, which is not solely focused on addressing such issues from a purely European context but, rather, seek to achieve a more global and holistic picture of the situation.
Moreover, after already holding three hearings on the topic (including one with the participation of Accountancy Europe), the PANA Committee will resume its focus on the role of intermediaries and tax advisors. On 2 May, the Committee will organise a hearing in which a study will be presented on potential conflicts of interest stemming from accounting and audit firms providing tax advice for private sector clients. Several MEPs have in the past asked for the Commission to address such conflicts, supposedly stemming on the one hand from accountancy firms helping authorities to improve the resilience of their tax systems, whilst in parallel advising private companies on tax optimisation. On the other hand, such conflicts are said to emerge from auditors providing audit services to the same clients that they are advising on tax planning activities. The European Commission is currently expected to put forward a proposal “by June” to address the role of tax intermediaries, but this is unlikely to include re-opening of audit legislation specifically.
A total of 208 amendments have been tabled for the European Parliament’s draft report on tax dispute resolution. The dossier in the European Parliament is led by the MEP Michael Theurer (ALDE/GER). A vote in the ECON Committee is currently scheduled for 8 June, followed by a Plenary vote few weeks after. As taxation is a matter of Member States’ area of competence, the European Parliament may merely submit its non-binding opinion on the Commission proposal. Member States in the Council will amend and approve the proposal by unanimity. The Maltese Presidency has already announced its intention to reach a political agreement on the dossier by the end of its term in June.
With EU-level progress already achieved in the area of BEPS, the tax certainty agenda is now receiving increasing attention amongst the EU Member States. At a recent informal ECOFIN meeting of EU Finance Ministers, the Maltese Presidency brought the topic on the table, stating that recent new measures in the area of anti-avoidance and -evasion may have brought uncertainty in the interpretation and application of tax legislation. The Presidency also fears that with increased tax transparency, more tax audits and disputes would emerge, thereby further contributing to business uncertainty. Malta recommends an increasing use of tax rulings to address this issue. During the meeting, however, Commissioner Moscovici re-iterated the importance of the anti-avoidance agenda and called for maintaining the current momentum. He did, however, emphasis that the Common Consolidated Corporate Tax Base (CCCTB) would be a suitable tool for bringing greater tax certainty for companies operating within the Single Market – a statement with which both Germany and Italy agreed. Finally, Germany, the UK, Poland and Hungary expressed concerns over the potential challenges that the digital economy may cause to tax systems.
Italy has requested for a derogation to the VAT Directive (applicable to Articles 206 and 226 of the Directive). According to the proposed derogation, Italy is requesting for an extension of its current right to require that VAT due on supplies to public authorities is to be paid by those authorities to a separate and blocked bank account of the tax authorities. This derogation currently expires on 31 December 2017, and Italy is requesting for an extension lasting until 30 June 2020.
The Fourth Chamber of the Court of Justice of the EU (CJEU) has issued a ruling regarding the application of criminal penalties in cases of non-payment of VAT. The case-codes are C‑217/15 and C‑350/15. In its ruling, the Court establishes that it is permissible to also prosecute a natural person whose company has already been penalised for the non-payment of VAT.
According to Tax News, Irish companies have expressed concerns about prospective US tax reforms. The companies fear, in particular, the possible border adjustment tax (BAT) which would impose an additional tax burden on goods and services imported to the US. The US accounts for 24% of Irish exports.
As reported notably by Tax News, the UK’s HMRC has launched a pilot project on its so-called Making Tax Digital (MTG). MTG will require companies and self-employed people above a threshold to update their tax affairs quarterly and to maintain digital accounts. The now-launched pilot project will invite certain taxpayers to help develop and improve the MTG service by using accounting software to record their business income and expenses; sending quarterly summary reports of their income and expenses directly from their digital records; and signing up to go paperless. HMRC has, moreover, launched a new public tax fraud hotline. The hotline will, according to HMRC, constitute an essential part in the authority’s intelligence gathering.
Two tax Bills have been proposed by Democrats in the US House of Representatives and Senate. The House Bill, titled the Stop Tax Haven Abuse Act, proposes a public Country by Country Reporting (CBCR) requirement on multinational companies. According to the non-profit organisation Global Financial Integrity (GFI), the Bill also includes stricter penalties on accountants who help establish tax evasion schemes. The Senate Bill, by contrast, is titled the Tax Fairness and Transparency Act, and proposes a set of stronger anti-abuse provisions. These include prohibiting companies from deferring indefinitely the taxes they owe on their offshore profits; cutting down corporate inversions, and committing US listed companies to public CBCR. It is unlikely, however, that the Bills will be adopted as such, not to mention at all. Their introduction does, however, demonstrate the political momentum in the area of taxation that currently reigns on the other side of the Atlantic.
The Dutch Government has provided the national Parliament with details on the country’s tax ruling practices. The document (in Dutch) provided by the Finance Ministry to the Parliament provides an indication of the areas where the national tax authority grants certainty for companies, and answers MPs’ questions on matters such as Dutch ruling practices, foreign tax liabilities, classification of hybrid forms of financing and hybrid entities, financing and royalty operations, the exchange of information on tax rulings between countries, and other general questions related to the topics at hand.
The OECD has published a set of new documents to ensure a consistent implementation of the Common Reporting Standard (CRS). The new documentation includes new FAQs on the application of the CRS, as well as a second edition of the Standard on Automatic Exchange of Financial Account Information in Tax Matters. The new edition expands the last part on the CRS XML Schema User Guide, and sets out additional technical guidance on the handling of corrections and cancellations within the CRS XML Schema. The new standard also provides a revised and expanded set of correction examples. The other parts remain unchanged relative to the first edition that was issued in 2014.
The Inclusive Framework on BEPS has issued additional guidance for tax administrations and taxpayers on the implementation of Country by Country Reporting (CBCR) as established in the BEPS Action 13. The additional guidance clarifies several interpretation issues related to the data to be included in the CbC report as well as the application of the model legislation contained in the Action 13 report. The guidance addresses, in particular, five specific issues: (1) the definition of revenues, (2) the accounting principles/standards for determining the existence of and membership in a group, (3) the definition of total consolidated group revenue, (4) the treatment of major shareholdings, and (5) the definition of related party.
The OECD has published a report on how tax policy can encourage skills development in OECD countries. It also assesses the returns to tertiary and adult education and examines how these returns are shared between governments and students. The study builds indicators that examine incentives for individuals and governments to invest in education. The study concludes, notably, that at current wages and tax levels, significant net returns are earned by students on their investments in skills. Moreover, on average across the OECD, the costs of government investment in skills are recouped through higher future income tax revenue – even without accounting for other benefits such as faster growth, lower unemployment and improved well-being.
Almost 50 delegates from 14 countries and 7 organisations gathered in Tbilisi, Georgia, for the second regional meeting of the Inclusive Framework on BEPS in the Eastern Europe and Central Asia region. This meeting belongs to a new series of regional events that offer participants from different regions in the world the opportunity to provide their views and input to the Inclusive Framework. The participants discussed the status of implementation of the BEPS measures, with a specific focus on the peer-review mechanisms as well as timelines for the implementation of the minimum standards. The work on toolkits designed to help low-income countries was also extensively considered, together with capacity-building initiatives currently in place or under development. The participants were, moreover, updated on recent developments in transfer pricing and the area of tax treaties, including Country by Country Reporting (CBCR) and the tax treaty-related minimum standards. There was a specific focus on the Multilateral Instrument as a means of swiftly implementing the tax treaty-related measures.
As a follow-up to the meeting, a statement of the co-chairs was published, outlining the main areas of discussion and certain key conclusions. The statement indicates that during the meeting, the participants raised questions on the interaction between the work on arbitration at the EU-level and that of the OECD. They asked for further clarification on possible misalignments between the EU Directive on tax dispute resolution and the principles elaborated under BEPS Action 14 (dispute resolution). Moreover, business community representatives emphasised the importance of tax certainty in the context of the BEPS project, and raised concerns on the confidentiality of CBCR information – and thus likely on public CBCR.
According to OECD’s latest labour tax figures, taxes on labour income for the average worker across the OECD continued to decrease for the third consecutive year during 2016, dropping to an average of 36% of labour costs. These figures are presented as part of a new publication, titled Taxing Wages 2017. According to the OECD, this decrease in the average tax wedge seen since 2013 is partly explained by reforms in some countries to reduce taxes on labour income. Despite this decreasing trend, the tax wedge saw a slight increase in 20 OECD countries, and a decline in 14 others. Moreover, differences between countries remain significant – tax rates on labour income in Belgium amount to 54% of labour costs, whilst in Chile this is a mere 7%.
Approximately 300 participants, representing over 100 delegations from countries, jurisdictions and international organisations, as well as representatives from the business community and academia have gathered together to discuss solutions for common challenges in the design and operation of VAT systems. The participants agreed that attention must now be turned to the implementation of the VAT/GST Recommendation. The participants also discussed the boom in e-commerce, and the solutions to address the VAT challenges stemming from the sector.
For the occasion, the OECD’s Deputy Secretary-General Rintaro Tamaki announced the release of the Recommendation of the Council on the application of VAT/GST to the international trade in services and intangibles. The Recommendation is the first OECD Act in the area of VAT and open for non-OECD members as well. The Recommendation incorporates the International VAT/GST Guidelines.
According to Tax News, the Irish Finance Minister Michael Noonan has stated that no other country has officially claimed a stake in the €13 billion tax recovery bill that the European Commission ordered Apple to pay to Ireland. The OECD’s tax director, Pascal Saint-Amans, had previously indicated that in his opinion, other OECD countries could have a claim for a portion of the recoverable tax income.
The civil society organisation Tax Justice Network (TJN) has published information on the key players in the Panama Papers scandal. The data is provided in a visual format, instantly providing an overview of what TJN refers to as the “global shell company banking network”, the home countries of multinationals with subsidiaries in Panama, the main industry areas of these subsidiaries, and some patterns in what predicts links to Mossack Fonseca. The data focuses very much on the banks, but the article refers to the big four accounting firms and implies that further work on their involvement with Panama may be conducted in the future.
The European Association of Craft, Small and Medium-Sized Enterprises (UEAPME) has published its position paper on the Commission proposal for a temporal application of the VAT reverse charge mechanism. UEAPME is against the proposal which, it fears, risks generating greater uncertainty for European SMEs. UEAPME maintains that a reverse charge mechanism will create new Single Market barriers, hinder the move to a definitive regime, and creates a higher risk for fraud compared to multi-stage collection in the case of generalised reverse charge mechanism. Finally, the association is critical of the split payment mechanism as it may create problems for SMEs on both sides of a transaction related to administrative burdens and cash-flow problems.
Norges Bank has published its expectations for company boards with regard to responsible tax behaviour and tax transparency. The bank states that its expectations on tax and transparency rest on three main principles: (1) taxes should be paid where economic value is generated, (2) a company’s tax arrangements are a board responsibility, and (3) public Country by Country Reporting (CBCR) is a core element of transparent corporate tax disclosure. The bank states, specifically, that multinationals should introduce public CBCR, or otherwise explain the reasons should they choose not to. These expectations are intended to serve as a starting point for the bank’s interaction with multinationals on tax and transparency.
The globally renown economist, Nouriel Roubini, has written an opinion piece in the Guardian in which he criticises the prospective US tax cuts under the Trump administration. He maintains that the Trump administration is under-estimating the political difficulties and resistance ahead in pushing for tax reform and its intended tax cuts in particular. Moreover, he predicts a (naturally) negative impact for the public budget stemming from the tax cuts, and speculates on the non-appealing options that the administration has to address this. He concludes that the only viable path for sustainable tax reform is to increase taxes on the wealthier segments of society.
The civil society organisation Oxfam has published a new paper on “tax dodging” by US companies. The paper states that badly designed tax rules and “tax dodging” cost the US approximately $135 billion yearly and an estimated $100 billion for poor countries. Oxfam moreover argues that the planned Trump’s tax reforms will align the tax system in favour of the wealthiest at the expense of the rest of the society. According to the paper’s findings, the expected plans for the repatriation of profits held offshore would save over $300 billion for 50 largest US multinationals. The Trump administration has proposed a one-off 10% tax on repatriated wealth. The paper estimates, moreover, that the amount of offshore wealth of these 50 companies amounts to $1,6 trillion.
The UN has published the second edition of its so-called Practical Manual on Transfer Pricing for Developing Countries. As its name implies, the Manual provides advice for developing countries on administering transfer pricing legislation, and elaborates on key developments in the area of transfer pricing. It is a practical tool for tax administrations of developing countries whilst enabling transfer pricing practitioners to identify the position of tax administrations of developing countries on transfer pricing matters. This most recent version of the Manual introduces changes to the first 2013 edition, including a new chapter on intra-group services; a new chapter on cost contribution arrangements; a new chapter on the treatment of intangibles; as well as “significant updating” of other chapters.
According to Public Finance International, the IMF has stated that the right tax policies may lead to a better use of resources and address certain low-productivity elements in an economy. Poorly drafted economic policies may, for example, lead to businesses making their decisions on the basis of tax, rather than substance. This leads to severe market failures and misallocation of capital to wrong types of firms.
The MEP Sven Giegold (GUE-NGL/GER) has accused EU Member States of “tacit acceptance of tax dodging” by delaying the work on public Country by Country Reporting (CBCR). He thanks the Commission for, notably, taking first steps towards “monitoring” tax advisors, but calls for more effective supervision of advisors and auditors, and laments that Member States appear eager to maintain the status quo.
The European Commission has replied to a question asked by the MEP Hugues Bayet (S&D/BEL) with regard to a new “accounting tax” recently introduced in Belgium and which is potentially conducive to tax avoidance. In his question, Mr. Bayet expresses concerns about a recent decision of the Belgian Government to enable the country’s Accounting Standards Commission to take tailor-made decisions relating to specific companies. He sees that as a clear attempt to go around the EU’s rules on automatic exchange of information on tax rulings, and thus asks the Commission what it intends to do about it.
In his reply, Commissioner Moscovici estimates that the Belgian scheme could be in violation of the Directive on Administrative Cooperation (DAC). The Commission is currently evaluating the compliance of Member States with DAC, and will take appropriate action if violations are detected.
The European Commission has replied to a question asked by the MEP Matt Carthy (EPP/IRL) with regard to the Common Consolidated Corporate Tax Base (CCCTB) and tax revenue. In his question, Mr. Carthy argues that the CCCTB will, in practice, limit Member States’ leeway for setting national tax rates as Ireland would be able to apply only one out of its total three tax rates applicable to corporations. He therefore asks the Commission whether the CCCTB will, in fact, impact national tax rates and potentially lead to lower amounts of tax paid by large corporations in Ireland.
In his reply, Commissioner Moscovici states that for companies within the CCCTB there will only be one taxable profit subject to the tax rate determined by individual Member States. However, for companies outside the CCCTB system, Member States are free to continue to set different rates for different types of income as is their sovereign right.
The European Commission has replied to a question asked by the MEP Dimitrios Papadimoulis (GUE-NGL/GRE) with regard to selective taxation and fighting against tax evasion. In his question, Mr. Papadimoulis asks the Commission what is the cost of tax avoidance for Greece, how does the Commission evaluate the activity and results of the High Level Code of Conduct Group, and how it will mitigate the impacts of formally legal tax avoidance on economically weaker countries such as Greece.
In his reply, Commissioner Moscovici re-iterates that the total costs of profit shifting in the EU amount to €50-70 billion, but overall it is difficult to accurately estimate the losses caused by tax avoidance. With regard to the Code of Conduct Group, the Commissioner states that it has worked on tackling harmful tax competition since its establishment in 1998, and looked at more than 400 tax measures, over 100 of which have been repealed or amended. He, moreover, lists the number of tax measures taken by the EU in the past year to address profit shifting, and highlights the potential of the Common Consolidated Corporate Tax Base (CCCTB) in further improving the situation.
The European Commission has replied to a question asked by the MEP Nuno Melo (EPP/POR) with regard to tax havens. In his question, Mr. Melo states that Portugal has removed Jersey, the Isle of Man and Uruguay from its list of tax havens, and asks the Commission which other countries have done the same and what is its view of it. In his reply, Commissioner Moscovici informs that Jersey and the Isle of Man have recently been delisted by Bulgaria and Portugal, and Uruguay has been delisted by Bulgaria, Latvia and Portugal.
The European Commission has replied to a question asked by the MEP Maite Pagazaurtundúa Ruiz (ALDE/SPA) with regard to state aid in Gibraltar. In her question, Ms. Ruiz refers to a 2014 decision by the Commission to investigate and 2016 conclusions that found the Gibraltar’s corporate tax system to be in violation of state aid rules. She asks the Commission whether the state aid has now been recovered and whether it believes that Gibraltar’s tax system is in violation of EU Treaties.
In her reply, Commissioner Vestager states that the 2016 extension decision is not a final decision but merely opens an in-depth investigation into the corporate tax rulings practice in Gibraltar. Only after the investigation is concluded, the Commission will adopt a final decision on the possible existence of state aid, on the compatibility of potential aid with the Internal Market and, only in case of a negative decision, on the possible recovery of incompatible state aid.
The European Commission has replied to a question asked by the MEP Tibor Szanyi (S&D/HUN) with regard to potential conflicts of interest in the tax system. In his question, Mr. Szanyi applauds the Commission’s decision to improve the supervision of tax advisors, and refers to a case in Hungary where the President of the National Tax and Customs Administration (NAV) received a monthly income from two companies that are engaged in activities associated with taxation and accounting. He asks the Commission how it views this conflict of interest, and what it can do to address such conflicts given that taxation is an area of competence for the Member States.
In his reply, Commissioner Moscovici confirms that the Commission is indeed working on a possible EU action regarding the role of intermediaries and advisors in the context of designing and promoting “aggressive tax planning schemes”. A public consultation on the topic recently closed (to which Accountancy Europe also responded), and a total 131 responses were received and are being analysed. He confirms, moreover, that such a future initiative may result in mandatory disclosure rules for intermediaries, which would provide national tax administrations with timely information about potentially “aggressive tax planning” schemes and would enable them to take appropriate measures. It remains to be seen, however, whether such a reporting obligation should be coupled with an exchange of information between EU Member States’ competent authorities is still under Commission’s assessment. Such a potential future mandatory disclosure regime would not, in the Commissioner’s view, necessarily provide information about the independence of intermediaries, but rather about the tax schemes designed and marketed by them.
