Opinion Statement of the CFE ECJ Task Force. on Withholding Taxes on Active Income within the EU. January 2008

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1 Opinion Statement of the CFE ECJ Task Force on Withholding Taxes on Active Income within the EU January 2008 Paper submitted by the Confédération Fiscale Européenne to the Council of the European Union, the European Commission and the European Parliament in 2008

2 This is an Opinion Statement prepared by the Task Force on withholding taxes on active income within the EU 1. The CFE is the leading European association of 29 national tax advisory organisations representing over 160,000 tax advisers. 1. Introduction Within barely a year, the ECJ has had the opportunity to confirm through three judgments the principles it laid down some years before in the Gerritse case. 2 The judgments were those handed down in Conijn 3, Scorpio 4 and Centro Equestre da Leziria Grande 5 cases. With some differences, all cases related to the German legislation on withholding taxes on payments made to non-residents and, although establishing the same paramount rule, each of them went a bit further than the previous one into the different issues raised by the system of withholding tax which is common to all EU countries. The three cases refer to income from the intra-eu provision of services. Scorpio and Centro Equestre refer to income from artistic performances (and fall therefore in the scope of Article 49 and 50 of the Treaty). Income received by Mr. Conijn was deemed to come from business activities and was accordingly examined under Article 43. Usually taxation at source by way of a withholding is also applied in Member States to income other than these, but passive income (i.e. dividends, interest, etc.) does not fall under the scope of this statement. 2. The ECJ confirms: non-resident providers of services are entitled to deduction of expenses (taxation on net income) Gerritse set out, for the first time, that non-residents were entitled to deduct, in the source State, the expenses related to the activity carried out in that State. It was not clear, however, what breadth the Court accorded to the concept expenses related to the activity, i.e. if the expenses to be deducted in the source country were only those incurred in that country (travel or accomodation expenses, for example) or whether they should include a proportional part of the overheads borne by the artist, irrespective of where they had accrued, such as the depreciation of the instrument or the rental of a studio where rehearsals take place throughout the year and which is usually in the State of residence 6. 1 Although the Opinion Statement has been drafted by the CFE Task Force, its content does not necessarily reflect the position of all members of the group. 2 C-234/01, Gerritse, judgement of 12 June C-346/04, Robert Hans Conijn, judgement of 6 July C-290/04, FKP Scorpio Konzertproduktionen GMBH, judgment of 3 October C-345/04, Centro Equestre da Leziria Grande, Lda, judgement of 15 February See CFE Opinion Statement on the Decision of the European Court of Justice Arnoud Gerritse v. Finanzamt Neukölln-Nord, C-234/01, on European Taxation, IBFD, Vol. 44, n. 4, April

3 In Scorpio the Court clarified 7 that the concept of economically connected business expenses must therefore be understood as referring to expenses that are directly linked, within the meaning of the line of case-law starting with Gerritse, to the economic activity that generated the taxable income. These were the only expenses that may be deducted in computing the base for the withholding. Overhead expenses need not be taken into account by the payer of the income in computing the taxable base on which the withholding will be applied. Whether they must or may be taken into account in the same source State at a later refund phase was not too clear in the judgement: While the expenses which the provider of services has reported to his debtor must be deducted in the procedure for the retention of tax at source, Articles 59 and 60 of the EEC Treaty do not preclude the taking into account if appropriate of expenses that are not directly linked, within the meaning of the Gerritse line of caselaw, to the economic activity that generated the taxable income, in a subsequent refund procedure.. While consistent with this statement, in Centro da Leziria Grande, the ECJ went a bit further: In that context where expenses are inextricably linked to the services which gave rise to taxation in the source State, the place and time which the costs were incurred are immaterial. 8 Overhead expenses, therefore, must be taken into account for purposes of the withholding in the Source state, provided that they are inextricable linked to the activities which were taxed in that source State. The probability, however, that a double deduction of the expenses, in case the taxpayer would deduct them also in his residence State, and which is cause for concern for Member States, gives rise to the following point. 3. An overall approach or per-country approach? In the first two cases, Gerritse and Conijn (along the same lines as in Gerritse), the case was analysed solely and exclusively from a focus on the regulations of the source country (in this case, Germany). That was not the approach taken in other cases dealt with by the ECJ, which analysed the effect of simultaneous application of both sets of regulations, i.e. of the source country and of the country of residence. This happened, however, in cases relating to the taxation of dividends 9, which are not included in this statement. In these cases account was taken of the result of interaction of the laws of the two States, taken together, for final taxation of the taxpayer (whether successfully or not is another question). However, neither in Gerritse 10 nor in Conijn or Scorpio did that happen. In the case of Gerritse, the tax 7 Paragraph Para Thus, in C-319/02, Manninen and C-374/04, Test Claimants in Class IV of the ACT Group Litigation. 10 In Gerritse, the Advocate-General again Léger- had indeed mentioned treatment of the expenses in the State of residence: Furthermor, Mr. Gerritse is unable subsequently to deduct the expenses concerned in his State of residence (paragraph 44 of the Conclusions). The judgment, however, precluded this element. 2

4 paid in Germany could not be deducted in the Netherlands since his country of residence was governed by the exemption method. In consequence, the German tax became an indirect cost for him. 11 But would the consequences have been the same if the tax credit method had been applied in the Netherlands, and the expenses he had incurred in Germany had been deductible from his tax base? Clearly not. 12 Neither Advocate-General Léger nor the Court examined the issue, in what we could define as a per-country approach. This however suffered a reverse with Centro Equestre da Leziria Grande Lda, 13 where the remitting court once again, the Bundesfinanzhof obliged Léger to embark upon an analysis of the treatment of expenses in the State of residence 14. The Court summarily followed the Advocate General s opinion: since the method established in the tax treaty between Portugal and Germany is that of limited tax credit, whereby double taxation is avoided by crediting in the residence State an amount equal to the tax paid in the source State, such a mechanism was appropriate for preventing the double counting of costs since, where it is applied by the (residence) State, that State can check the operating expenses that have been taken into account in calculating the tax paid in the (source) State Whether this overall approach will be followed in coming judgements remains to be seen. 11 See note 13, on page 191 of CFE opinion statement on Gerritse, as per note If tax is levied at source on the net amount, then in the State of residence the tax base must also be the net amount and, it is appropriate only to attribute the tax that the source State had applied on that net amount. Alternatively, the State of residence could apply the exemption method progressively by exempting the net amount obtained abroad. In any case, the base would be the same in both States and the expenses would be deducted once only. 13 C-345/ Paragraphs 23 and 24 of the Conclusions. There are two aspects to Léger s reply. On the one hand, he tackles the possibility of the taxpayer making a double deduction; and on the other hand, he analyses the effect of the method for preventing double taxation followed by the State of residence: As regards the possible risk of double deduction of professional expenses, at the same time in the State in which the services were provided and in the State in which the company in question is established, it must firstly be noted that, as may be inferred from the provisions of German taxation legislation, within the framework of the refund procedure ( ), the Treasury Ministry can inform the State of residence of the taxpayer subject to a limited taxation obligation about the content of the refund application and the amount thereof, and that formulating this application amounts to an acceptance that certain information be notified to the aforesaid State. In consequence, the Federal Republic of Germany has established a mechanism that permits preventing such double deduction of professional expenses being taken into account. I consider that it must be possible to apply more broadly such a mechanism of cooperation between the competent authorities of the taxing State and of the State of residence to the overall professional expenses that are economically related with the activity carried out by a provider of services not resident in the State of taxation 14. It must likewise be observed that, under article 24, section 1, letter a) of the Double Taxation Convention, when a resident of the Portuguese Republic receives income taxable in Germany pursuant to said Convention, the first State will attribute the taxation quota accrued by the income of that person to the income tax paid in Germany. Application of this attribution procedure by the State of residence can lead the latter to find which professional expenses have been taken into account in calculating the tax paid in the State of activity, with a view to neutralising double deduction of such expenses 14. 3

5 4. An open question. Are withholdings on active income still justified within the EU? With regard to the tax liability of the non-resident in the source State, the position is already settled by case-law. No one denies that taxation at source is compatible with the principles set out in the EU Treaty 15. However, regarding the procedure for complying with such liability, through the withholding system, Scorpio leaves a question open. Scorpio was not the non-resident taxpayer but the resident payer of the income derived by a Dutch company. It was held liable by the German Tax Administration for the tax not withheld and against this liability Scorpio invoked Articles 49 and 50 of the Treaty. In paragraph 34 the Court recognises that the fact that the payer must withhold the tax payable by the non-resident and that it is responsible for doing so when the provider of the services is a resident of another Member State (which obligation does not exist where the provider of the service resides in Germany) effectively constitutes a restriction on free provisions of services prohibited, in principle, by Articles 49 and 50 of the Treaty - since it may dissuade German businesses such as Scorpio from hiring providers of services from other Member States. However, having recognised the restriction, and this is the relevant point in this issue, it accepts the arguments put forward by the Commission and by some Governments, in that this is a restriction justified by the need to ensure effective collection of income tax 16 : The procedure of retention at source and the liability rules supporting it constitute a legitimate and appropriate means of ensuring the tax treatment of the income of a person established outside the State of taxation and ensuring that the income concerned does not escape taxation in the State of residence and the State where the services are provided. Clear enough, thus far. It is nevertheless the second statement that raises a doubt: It should be recalled that at the material time, in 1993, no Community directive or any other instrument referred to in the case-file governed mutual assistance concerning the recovery of tax debts between the Kingdom of the Netherlands and the Federal Republic of Germany. Does that mean that the existence of this directive should render unnecessary the withholding procedure? In other words, has legislation such as the German legislation ceased to be justified now that the Member States have such an 15 A clear difference must be made with the case of a withholding which does not constitute a way of ensuring collection of tax to which the non-resident is subject in the source country, as happens in the case C-433/04 Commission v. Belgium. In that case the withholding was purely a means of fighting tax avoidance in the building construction sector, but did not respond to a real tax liability of the non-resident taxpayer for income derived in Belgium. Since the measure applied mainly to non-resident contractors, it was considered by the ECJ as incompatible with Articles 49 and 50 of the Treaty. 16 Paragraph 35. 4

6 instrument to give effect to their taxes? 17 It would appear not. For following straight on from that affirmation, the judgment continues along the previous line, as if mention of the directive had not been relevant: Moreover, the use of retention at source represented a proportionate means of ensuring the recovery of the tax debts of the State of taxation. The same is true of the potential liability of the recipient of services who is required to make such a retention, as that enables the absence of retention at source to be penalised if necessary. Since that liability constitutes the corollary of that method of collecting income tax, it too contributes in a proportionate manner to ensuring the effectiveness of tax collection.. We have underlined the verb represented because the tense varies in the different languages. While in English, French, Italian and Portuguese it is in the past, in German, Spanish and Dutch the tense is present. The different tenses could easily lead to different conclusions: if the withholding represented a means of ensuring collection of taxes, it might mean that now we have the MARD directive such an instrument is no longer necessary. If, on the other hand, the withholding represents, then, even if Member States have an instrument to enforce collection of taxes in other Member States, still the withholding system is acceptable. It would have been extremely useful if the Court had clarified this point. The members of the Task Force believe that, in order to be fully compatible with the Treaty, in the case of a non-resident who receives active income from another EU country and who is subject to tax in the source Member State, this non-resident taxpayer should be able to choose between submitting a tax return directly to the source country (from his own country), and applying all the deductions he is entitled to. The CFE Task Force, however, hopes that, in a not too distant time, EU taxpayers should be allowed to submit a single tax return in their own State of residence, including all income obtained throughout the EU borders, which should afterwards be allocated to the various MS where such income has been derived. 17 Following the events subject-matter of the case, Directive 2001/44/CE, of 15 June 2001 extended to the income and capital gains taxes the assistance of Directive 76/308/EEC, of 15 March 1976, relating to mutual assistance for payment of tax credits. Moreover, on 23 June 2001 there came into force the convention between Germany and the Netherlands, of 21 May 1999, on mutual assistance for payment of tax credits and communication of documents and reports. 5

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