Taxing Multinationals: Recent developments in the EU

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1 Taxing Multinationals: Recent developments in the EU Oxford, March 18, 2013 Philip Kermode - EU Commission DG Taxation and Customs Union

2 Common Consolidated Corporate Tax Base - to remove tax obstacles in cross borders operations A common EU tax base that is available as an option for the internationally active groups The consolidation of different tax bases Appropriate apportionment of tax base to MS Member States are free to set rates on their share of consolidated tax base 2

3 Common Consolidated Corporate Tax Base - core elements The CCCTB provisions follow the general principles of corporate taxation rules in the Member States The consolidation is the sum of the profits/losses of the group members. The tax base of he Grouop members includes transactions between group mebers only at cost The common tax base is shared out between Member states according to a formula = "formula apportionment" The tax base is the result of the application of rules for taxable income and deductible expenses (i.e. Profit and loss account approach [P/L]) 3

4 1. THE 6 DECEMBER 2012 ACTION PLAN TO STRENGTHEN THE FIGHT AGAINST TAX FRAUD AND TAX EVASION A. Better use of existing instruments and Commission initiatives to be progressed B. New Commission initiatives C. Future initiatives and actions to be developed Actions 7 and 8 COM Recommendations : 1. C(2012) on good governance in taxation 2. C(2012) on aggressive tax planning 4

5 COM RECOMMENDATIONS GENERAL Some taxpayers use complex, artificial arrangements that relocate the tax base to other countries and hide it from MS tax administrations; They thrive on mismatches in cross border situations creating double non-taxation and set up their arrangements using MS with the weakest remedies; Within the EU this can only be effectively tackled by an approach shared by all MS; COM therefore recommends as a first step that MS take effective action in two specific areas: 1. A common stance against artificial arrangements and double non-taxation, and 2. A common definition of non-compliant 3 rd countries and joint actions 5

6 2. COM RECOMMENDATIONS LEGAL FRAMEWORK Recommendations are a "legal act through which the Union exercises its competences", Article 288(1) TFEU. Recommendations have no binding force (Article 288(5) TFEU). The legal basis is Article 292 TFEU: Commission Recommendations (Article th sentence): self-standing legal acts once agreed by the College. 6

7 COM RECOMMENDATIONS AGGRESSIVE TAX PLANNING 1. Clause in DTC against double non-taxation 2. General Anti-Abuse Rule (GAAR) Mainly against novel aggressive tax planning structures outside the scope of specific anti-abuse measures. Main features: 1. Finding of artificiality: lack of commercial substance; 2. Existence of an arrangement (or a series thereof); 3. The essential purpose of the arrangement(s) is to avoid taxation (any other purpose at most negligible); 4. Taxpayer derives a tax benefit as a result of the arrangement(s). Detailed wording is based on EU law and existing ECJ jurisprudence. 7

8 3. EU Law & anti-abuse Various judgments by the European Court of Justice (ECJ) on CFC and thin-cap provisions. Conclusions: Fighting abuse can be an overriding reason in the public interest. An arrangement is abusive if: (i) it is wholly artificial (i.e. taxpayer carries on business through artificial entities (letter box companies) or enters into transactions not at arm's length); and (ii) it has the sole/essential purpose of avoiding tax (motive test). Council Resolution has tried to give more guidance on the application of these principles to CFC and thin cap provisions. Recommendation on ATP does this for GAAR. 8

9 EU Law & anti-abuse ECJ Jurisprudence is still developing and contains an element of uncertainty. So far, ECJ consistently applied the concepts of artificiality and sole/essential purpose. No reason why that should change. These principles apply to: MS domestic tax provisions that potentially infringe treaty freedoms or are discriminatory; Provisions of EU law (e.g. VAT legislation and proposed CCCTB clause); N.B. - The principle of proportionality also involves domestic tax provisions, regardless of whether they potentially infringe the treaty freedoms or are discriminatory. 9

10 Follow-up to Recomendations Member States to infor COM on measures taken in order to comply with Recommendations, as well as any changes made to such measures COM to publish a report on the application of the Recommendations within three years COM to establish a Platform for Tax Good Governance composed of experts from Member States ans stakeholders representatives to provide assistance in: Preparing its report on the application of the two Recomendations its going-on work on aggressive tax planning and good governance tax matters 10

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