tax update january 2013

tax update january 2013

Summary Luxembourg news 3 New tax measures for 2013 3 New Circular Letter on stock option plans 4 Circular Letter on loss carry-forward in the case of business succession 5 Use of tax losses - case No. 28231 5 Latest case law on exchange of information 6 VAT changes for the year 2013 7 International news 8 Reasoned opinions issued by the Commission on 24 October 2012 to Luxembourg and France to amend their VAT rates on e-books 8 Latest CJEU case law on VAT 8 Useful information 8 Double tax treaty network 8 2

Luxembourg news New tax measures for 2013 On 21 December 2012, the Luxembourg Parliament (Chambre des Députés) adopted bill No. 6497 introducing various tax measures linked to the 2013 Budget (please refer to our tax update of October 2012 http://www.arendt.com/knowledge/tax-update and to our subsequent Newsflash http://www.arendt.com/knowledge/newsflash). Changes introduced by the law are applicable since 1 January 2013 and may be summarised as follows: Minimum advance corporate income tax ( ACIT ) The previously existing minimum corporate income tax ( CIT ) of EUR 1,500 for companies whose financial assets, transferable securities and cash deposits exceed 90% of their total balance sheet has been raised to EUR 3,000. The former exception for companies which have a business license or a license from a supervisory authority has been dropped. All other companies whose financial assets, transferable securities and cash deposits do not exceed 90% of their total balance sheet are also liable to pay a minimum CIT, the amount of which is determined according to a progressive schedule based on the aggregate value of the closing balance sheet, as follows: Balance sheet total (in EUR) 350,000 350,001 to 2,000,000 2,000,001 to 10,000,000 10,000,001 to 15,000,000 15,000,001 to 20,000,000 > 20,000,000 Minimum ACIT EUR 500 EUR 1,500 EUR 5,000 EUR 10,000 EUR 15,000 EUR 20,000 In both cases, the minimum CIT is an advance and is thus creditable against any future CIT charge due by the taxpayer. Any excess is however not refundable. This change has been imposed by the State Council (Conseil d Etat) which strongly criticised the levy of a minimum CIT for a given year. Instead, the State Council requested that the minimum CIT follow the Austrian example and constitute an advance for the CIT due in the following years that is accordingly creditable against any future CIT liability. In addition, the State Council raised strong concerns as to the compatibility of the minimum CIT in cases where Luxembourg is not entitled to tax the income because of an exemption under a tax treaty or the Parent Subsidiary Directive. In order to address this concern the Luxembourg tax authorities (Administration des contributions directes) announced on 21 December 2012 that for the computation of balance sheet totals for ACIT purposes, the net value of assets which generate (or may generate) income that Luxembourg is not allowed to tax according to a double tax treaty (e.g. income deriving from foreign real estate) must be excluded. In addition, for the purposes of calculating the ACIT, the following rules must be observed: - shares and units held in tax transparent entities are considered financial assets, irrespective of the underlying assets held by the entity; - ACIT may not be reduced by Luxembourg tax credits (e.g. investment tax credits); and - in case of fiscal unity, the ACIT is as a rule due by each member company but the total amount of ACIT due by the consolidated group is capped at EUR 20,000. All amounts indicated above must further be increased by the solidarity surcharge (see below). Increase of the solidarity surcharge The solidarity surcharge has been increased to 7% (i.e. an increase of 2% regarding companies and of 3% regarding individuals instead of 2% as initially envisaged). A marginal 9% rate has been added for income earned by individuals exceeding EUR 150,000 p.a. / EUR 300,000 p.a. for spouses/partners. 3

As a consequence, the maximum CIT, including the solidarity surcharge, rises to 22.47% and to 29.22% including municipal business tax (Luxembourg-city). Computation of net worth tax reserve ACIT (including the solidarity surcharge) is not taken into account for the computation of the net worth tax ( NWT ) reserve. Under Luxembourg tax law, the NWT charge for a given year can be avoided or reduced if a specific reserve, equal to five times the NWT to save, is created before the end of the subsequent tax year and maintained during the five following tax years. The maximum NWT to be saved was limited to the CIT amount due for the same tax year, including the employment fund surcharge, but before imputation of available tax credits. Under the new amendment, the maximum NWT to be saved is limited to the CIT amount due for the same tax year, including the employment fund surcharge, but excluding ACIT (including the solidarity surcharge). The proposed amendment in the bill to limit the maximum NWT to be saved to the CIT amount due after the deduction of applicable tax credit was ultimately not retained. Decrease of investment tax credits rates Under Luxembourg tax law, tax credits for qualifying investments may be granted upon request to Luxembourg companies and Luxembourg permanent establishments of nonresident companies. Qualifying investments generally include tangible depreciable assets other than buildings, livestock, mineral and fossil deposits and certain other specific exceptions. The tax credits are divided into tax credits for global investment and additional investments and may be carried forward 10 years. The investment tax credit rate for additional investments has been reduced from 13% to 12%. The investment tax credit rate for global investments remains unchanged (7%) for the first tranche not exceeding EUR 150,000, but has been reduced from 3% to 2% for the tranche exceeding EUR 150,000. New income tax measures applicable to individuals The law introduced the following changes as regards the taxation of individuals: - a 40% marginal income tax rate has been introduced for an annual net adjusted taxable income exceeding EUR 100,000 p.a.. The maximum aggregate income tax rate including the solidarity surcharge thus rises to 43.6%; - the first four units of the lump-sum deduction for travel expenses (frais de déplacement), corresponding to EUR 396 p.a. have been abolished; and - the deduction of interest on consumer credits has been limited to EUR 336 per taxpayer. New Circular Letter on stock option plans On 20 December 2012, the head of the Luxembourg tax authorities issued Circular Letter L.I.R. - No. 104/2 (the New Circular ) replacing, as from 1 January 2013, the Circular Letter L.I.R. No. 104/2 dated 11 January 2002 (the 2002 Circular ) on the tax treatment of stock option plans. Apart from one major change, the New Circular foresees the same treatment of stock option plans as the 2002 Circular. When considering options granted by an employer to its employees a distinction must be made between individual or virtual options and freely negotiable options which are taxed as employment income in the hands of the employee. Individual or virtual options, on the one hand, are those which are not freely negotiable and cannot be sold by the employee. Regarding individual or virtual options, the New Circular follows the 2002 Circular and foresees that the benefit in kind, which is taxable in the same way as a salary (i.e. subject to the ordinary progressive tax rates), is taxable only at the time at which the option is levied. The value of the taxable benefit in kind corresponds to the value of the shares (i.e. stock exchange value or estimated fair market value) to which the option provides entitlement at the time of levy of the option, less the price paid by the employee to acquire the option and / or to levy the option. If 4

the shares acquired pursuant to the exercise of options will not be available to the employee over a certain freezing period, the Luxembourg tax authorities accept a discount equal to 5% per year of freezing (without exceeding 20%) of the value of the shares in order to determine the taxable benefit in kind. Freely negotiable options, on the other hand, are those which may be sold by the employee to any buyer. An option is however not considered freely negotiable if its transferability may be cancelled entirely or to a major extent by the employer, either unilaterally or contractually (e.g. in case of redundancy or resignation). Like the 2002 Circular, the New Circular foresees that the benefit in kind constituted by this option is taxable upon granting of the option. The taxable amount corresponds to the stock exchange value or estimated fair market value of the option. If the option is not listed, the fair market value can be determined by using the Black- Scholes method or any other similar financial method. Otherwise, the Luxembourg tax authorities consider that the value of the option is established at 17.5% of the value of the underlying stock at the time at which the option is granted, as opposed to 7.5% under the 2002 Circular. The New Circular also specifies that the 17.5% valuation must correspond to reasonable conditions. Unfortunately, the latter terms are particularly vague and are likely to raise interpretation issues. Circular Letter on loss carryforward in the case of business succession On 22 November 2012, the head of the Luxembourg tax authorities issued Circular Letter L.I.R. No. 114/3 on loss carry-forward in case of transfer of a business by succession (the Circular Letter ). The Circular Letter is intended to ensure that the Luxembourg tax treatment applicable to business succession is in line with the legislation of the European Union ( EU ) and case law of the Court of Justice of the EU ( CJEU ) although Luxembourg internal legislation has, in this respect, not yet been amended in order to comply with EU requirements. Indeed, Article 114 (2) 3. of the Income Tax Law foresees that only the person who incurred a loss may carry it forward and that, in the specific case of business succession, the successor may carry forward the loss only if it was jointlytaxable with the deceased at the time the loss was incurred. This provision is contrary to the Treaty on the Functioning of the EU and to the agreement on the European Economic Area as it is discriminatory with regard to non- Luxembourg residents. Indeed, a successor who was not a Luxembourg resident and who was not jointly-taxable with the deceased at the time the loss was incurred cannot carry forward such loss. Consequently, the Luxembourg tax authorities announced via the Circular Letter that they would entitle successors to carry forward losses incurred by a deceased person even if successor and deceased were not jointly-taxable at the time the loss was incurred. The Luxembourg law should be amended accordingly. Use of tax losses - case No. 28231 On 25 October 2012, the Luxembourg lower administrative court (Tribunal administratif) rendered a decision regarding the tax treatment of corporate tax losses. A Luxembourg company incurred tax losses during years 1997 to 2003. The Luxembourg tax authorities denied the use of losses carried forward as previously shown in the tax notice issued by the tax authorities by the Luxembourg company in the year 2004 without a corresponding adjustment of the previous tax assessment and of the 2004 tax return. The only argument of the tax authorities was that there were no tax losses available. The court analysed the conditions laid down by article 114 of the Income Tax Law. This article provides that a Luxembourg resident company is allowed to carry forward its losses indefinitely and offset them against any future profit subject to three conditions: (i) the losses have not already been offset, (ii) the company has maintained proper accounting during the loss making period, and (iii) the losses are deducted 5

from the taxable income of the company that incurred them. In the case at hand, the court considered that it was not demonstrated by the tax authorities that the company had not suffered the tax losses and that an unsubstantiated allegation is not sufficient to enable the tax authorities to deny the availability of such tax losses. Thus, the position of the tax authorities was not upheld. Latest case law on exchange of information Application to non-residents of the exchange of information provision under the France- Luxembourg tax treaty On 25 October 2012, the Luxembourg lower administrative court rendered a decision regarding the scope of the double tax treaty between Luxembourg and France in relation to the provisions concerning the exchange of information. In the case at hand, a Luxembourg company was requested by the head of the Luxembourg tax authorities to provide information in relation to a life insurance contract concluded between an individual under examination in France and a Luxembourg insurance company. The request made by the French tax authorities related to the period from 1 January 2010 to 31 January 2010. The individual under examination argued that the exchange of information provision under the treaty was not applicable in her case, since she was living in Switzerland since the end of the year 2009. As a consequence, she was no longer a French resident taxpayer for the period covered by the request. The court ruled that if the exchange of information is not restricted by Article 1 (which refers to the tax covered), Article 22 of the double tax treaty between France and Luxembourg relating to the exchange of information applied to persons who had their fiscal domicile in one of the Contracting States, the fiscal domicile being understood as the place where a person is subject to an unlimited tax liability. In the case at hand, the court observed, contrary to the French tax authorities, that the claimant was subject to taxation in Switzerland since the end of the year 2009 and that the French tax authorities were unable to demonstrate that such person still had a residence in France. As a consequence, the court concluded that the tax treaty between France and Luxembourg was indeed not applicable to the case and consequently the request for information was not valid. It should be noted that the tax treaty between France and Luxembourg does not contain the article regarding the applicability of the treaty to residents of one of the countries (i.e. the equivalent to Article 1 of the OECD Model Tax Convention MTC ). As a consequence, contrary to the OECD MTC, it is not expressly specified by Article 22 of the treaty that the exchange of information is not restricted to the residency but it is only specifically stated that exchange of information is not restricted to the tax covered by the treaty. On 14 November 2012, the Luxembourg lower administrative court rendered a decision regarding the level of details of a request for information. In the case at hand, a Luxembourg company ( LuxCo ) was requested by the head of the Luxembourg tax authorities to provide certain information, notably regarding a loan granted by LuxCo to a French real estate company (société civile immobilière FrenchCo ) under tax examination in France. The partner of FrenchCo was a Swiss tax resident. LuxCo claimed that the request from the French tax authorities was a fishing expedition because the tax examination of FrenchCo and the subsequent request of information was actually intended to obtain information regarding the partner of FrenchCo. LuxCo also argued that the link between the partner of FrenchCo and the LuxCo had to be certain. The court observed that the request referred to the identity of the partner of FrenchCo, the latter being taxable in France regarding income deriving from FrenchCo, which was known by the French tax authorities and disclosed to the Luxembourg tax authorities. In addition, the court considered the information provided by the French tax authorities to be sufficient and created a legitimate suspicion on the implication of the French taxpayer in the FrenchCo and the LuxCo. 6

The court thus concluded that the request was sufficiently specific and met the requirements of the double tax treaty between France and Luxembourg regarding the exchange of information. A link between the non-resident and the requesting State should be established On 15 November 2012, the Luxembourg lower administrative court rendered a decision regarding the notion of fishing expedition within the context of the exchange of information. In the case at hand, a Luxembourg bank was requested by the head of the Luxembourg tax authorities to provide certain information regarding a foundation established in Curaçao which was under tax examination in the Netherlands. The foundation first claimed that the Luxembourg tax authorities could not provide information on the basis of the double tax treaty between Luxembourg and the Netherlands as Curaçao had become an independent country from the Netherlands. The court recalled that the exchange of information was not restricted by Article 1 of the double tax treaty (i.e. persons who are residents in the contracting states). However, the court ruled that the Dutch tax authorities had to identify in their request the person under tax examination in the Netherlands and the reasons why the tax examination was extended to the foundation which was not resident in the Netherlands. The court observed that the Dutch tax authorities were not able to provide such information and that the request for information regarding the foundation in fact served another purpose which was to discover the identity of third person resident in the Netherlands. The court thus stated that the request was a fishing expedition as the genuine purpose of the request was to know the identity of a possible beneficial owner of the foundation in the Netherlands. The request must be sufficiently motivated in due time In the case at hand, the request issued by the head of the Luxembourg tax authorities mentioned a brief description of the facts and stated that the head of the Luxembourg tax authorities considered that the request complies with the conditions required for an exchange of information according to the relevant protocol and that the foreseeable relevance of the requested information was thus proven. The court decided that such a statement was not a sufficient motivation and thus pronounced the invalidity of the request. The court added that it was not possible for the Luxembourg tax authorities to complete the motivation during the proceedings as the parties were not in principle allowed to file additional submissions within the context of the specific procedure provided by the Luxembourg law of 31 March 2010. It thus cancelled the request. VAT changes for the year 2013 At a press conference held on 26 November 2012, the Luxembourg Minister for Finance gave an overview of the most important VAT changes, which became effective on 1 January 2013. The most important points are summarised below: - registration threshold: the threshold, which relieves Luxembourg entrepreneurs from the obligation to charge VAT on supplies of goods and services, is increased from EUR 10,000 to EUR 25,000; - taxation based on actual receipt of payments: the amount on which VAT only becomes due after a receipt of payments is increased from EUR 300,000 to EUR 500,000; - implementation of the Invoicing Directive 2010/45 on 1 January 2013; - electronic VAT filing: electronic filing of monthly and quarterly VAT returns and EC listings for periods starting as from January 2013 became mandatory, through the administration web portal etva. This obligation does however not concern taxpayers liable to file their returns on a yearly basis. On 3 October 2012, the Luxembourg lower administrative court rendered a decision regarding the interpretation of the notion of foreseeable relevance. 7

International news Reasoned opinions issued by the Commission on 24 October 2012 to Luxembourg and France to amend their VAT rates on e- books Since January 2012, France and Luxembourg have applied reduced VAT rates (respectively 7 and 3 percent) to the sale of e-books, which is not in line with the VAT Directive 2006/112 (reduced rates only apply to a limited list of goods and services which includes books, but currently not electronically supplied services such as e-books). This is the second stage in the infringement procedure following the letters of formal notice sent in July 2012. The two Member States have one month in which to bring their legislation into compliance with EU law. Otherwise, the Commission may refer the matter to the CJEU. Latest CJEU case law on VAT VAT on investment advisory services On 8 November 2012, the Advocate General ( AG ) released his conclusions before the CJEU as regards the question of whether investment advisory services in the fund industry benefit from a VAT exemption (case C-275/11 GfBk ). Summarising, the AG suggested that article 135, (1), g) of the VAT Directive 2006/112 should be interpreted as meaning that an advisory and information service provided by a third party, relating to the management of an investment fund and the purchase and sale of assets, constitutes an activity of management specific and distinct in nature, provided that the service is found to be autonomous and continuous in respect of the activities actually performed by the recipient of the service, a matter which it is incumbent on the national court to verify. Although the CJEU s decision has yet to be taken (in the course of the first or the second quarter 2013), the AG s conclusions may be regarded as an important step in the right direction and are supportive of the Luxembourg position, which currently exempts such investment advisory services from VAT, deeming them to form part of the management of investment funds (such fund management services being VAT exempt as per the VAT Directive). In any case, attention would have to be paid to the strict conditions set out by the AG as potentially confirmed by the CJEU and their impacts on the investment advisory agreements would need to be analysed. Useful information Double tax treaty network Over the last 3 months, the following developments concerning the Luxembourg double tax treaty network have occurred: - On 4 November 2012, Laos and Luxembourg signed a double tax treaty; - On 21 November 2012, the bill No. 6501 approving the new double tax treaty, protocols and exchange of letters signed recently (to include notably the standard exchange of information provision) with Canada, Korea, Italy, Malta, Poland, Romania, Russia, Switzerland, Germany, Kazakhstan, Macedonia, Seychelles and Tadjikistan has been filed with the Luxembourg Parliament. 8

This tax update of Arendt & Medernach is designed to provide our clients with information on recent developments of important fiscal areas. Published comments are not intended to constitute tax advice and do not substitute for the consultation with tax counsel required before any actual undertakings. For further information please contact: Eric Fort, Partner eric.fort@arendt.com Bruno Gasparotto, Principal bruno.gasparotto@arendt.com Alain Goebel, Partner alain.goebel@arendt.com Thierry Lesage, Partner thierry.lesage@arendt.com 9