52 Amendments of Fabio DE MASI related to 2016/0337(CNS)

Matt CARTHY, Fabio DE MASI

Proposal for a directive
Recital 4

(4) Considering the need to act swiftly in order to ensure a proper functioning of the internal market by making it, on the one hand, friendlier to trade and investment and, on the other hand, more resilient to tax avoidance schemes, it is necessary to ~~divide the ambitious CCCTB initiative into two separate proposals. At a first stage, rules~~implement the legislative proposal on a Common Corporate Tax Base (CCTB) and on a cCommon cConsolidated Corporate tTax bBase ~~should be enacted, before addressing, at a second stage, the issue of consolidation~~(CCCTB) simultaneously, as loss consolidation has potentially large and immediate revenue costs, with no likely offsetting benefits approaching anything like the same scale. Loss consolidation without a contemporary move to a unitary basis would thus be illogical, and also costly.

2017/09/29
Committee: ECON

Proposal for a directive
Recital 4 a (new)

(4a) The proposal to separate the implementation of the CCTB and CCCTB proposals is likely to result in significant declines in corporate tax bases across the EU; if loss consolidation were to be implemented with no switch to unitary taxation and formula apportionment at the same time the revenue impact would be dramatic and immediate; and any possible gains would be gradual and quite likely small in comparison.

2017/09/29
Committee: ECON

Proposal for a directive
Recital 5

(5) Many aggressive tax planning structures tend to feature in a cross- border context, which implies that the participating groups of companies possess a minimum of resources. On this premise, for reasons of proportionality, the rules on a common base should be mandatory only for companies which belong to a group of a substantial size. For that purpose, a size-related threshold should be fixed on the basis of the total consolidated revenue of a group which files consolidated financial statements. In addition, to ensure coherence between the two steps of the CCCTB initiative, the rules on a common base should be mandatory for companies which would be considered as a group should the full initiative materialise. In order to better serve the aim of facilitating trade and investment in the internal market, the rules on a common corporate tax base should also be available, as an option, to companies which do not meet those criteria.deleted

2017/09/29
Committee: ECON

Proposal for a directive
Recital 5 a (new)

(5a) For reasons of proportionality, the rules for the CCTB and CCCTB should in a first step only be mandatory for companies which belong to a group above a certain size. For that purpose, a size- related threshold should be fixed on the basis of the total consolidated revenue of a group which files consolidated financial statements. In addition, to ensure coherence between the two steps of the CCCTB initiative, the rules on a common base should be mandatory for companies which would be considered as a group. After a transitional period of several years, the new rules should be compulsory for all companies.

2017/09/29
Committee: ECON

Proposal for a directive
Recital 5 b (new)

(5b) In order to put a halt to the detrimental race to the bottom in tax rates across the EU, the Commission should put forward a proposal ensuring a minimum effective corporate tax rate of 25% across Member States.

2017/09/29
Committee: ECON

Proposal for a directive
Recital 6

(6) It is necessary to define the concept of a permanent establishment situated in the Union and belonging to a taxpayer who is resident for tax purposes within the Union. The aim would be to ensure that all concerned taxpayers share a common understanding and to exclude the possibility of a mismatch due to divergent definitions. On the contrary, it should not be seen as essential to have a common definition of permanent establishments situated in a third country, or in the Union but belonging to a taxpayer who is resident for tax purposes in a third country. This dimension should better be left to bilateral tax treaties and national law due to its complicated interaction with international agreements.

2017/09/29
Committee: ECON

Proposal for a directive
Recital 7

(7) To mitigate tax avoidance risks, which distort the functioning of the internal market, a common corporate tax base should be designed broadly. Based on this premise, all revenues should be taxable unless expressly exempted. As regards participations of at least 10 %, income consisting in dividends or proceeds from the disposal of shares held in a company outside the group should be exempt, in order to prevent double taxation in foreign direct investment. In the same vein, the profits of permanent establishments should also be exempt from tax in the state of the head office. It is also considered that the exemption of income earned abroad meets the need for simplicity for businesses. Indeed, in giving relief for double taxation, most Member States currently exempt dividends and proceeds from the disposal of shares, thereby avoiding computing the taxpayer's entitlement to a credit for the tax paid abroad, in particular where such entitlement must take account of the corporation tax paid by the company distributing the dividends.

2017/09/29
Committee: ECON

Proposal for a directive
Recital 10

(10) The fact that interest paid out on loans is deductible from the tax base of a taxpayer whilst this is not the case for profit distributions creates a definitive advantage in favour of financing through debt as opposed to equity. Given the risks that this entails for the indebtedness of companies, it is critical to provide for measures which neutralise the current bias against equity financing. In this light, ~~it is envisaged to give taxpayer~~the deductibility of interest payments aon allowan~~ce for growth and investment according to which increases in a taxpayer'~~s should be restricted through thin capitalization rules. Moreover, loans are more and more often used as equity s, althouldgh be deductible from its taxable base subject to certain conditions. Thus, it would be essential to ensure that the system does not suffer cascading effects and to this end, it would be necessary to exclude the tax value of a taxpayer's participations in associated enterprises. Finally, to make the scheme of the allowance sufficiently robust, it would also be required to lay down anti-tax avoidance rulesnefiting from deductibility of interest payments, and are the scheme most used in hybrid mismatch arrangements; for such reasons taxpayers should be provided with incentives to grow their equity share without further narrowing down the tax base.

2017/09/29
Committee: ECON

Proposal for a directive
Recital 12

(12) In order to discourage the shifting of passive (mainly, financial) income out of highly-taxed companies, any losses that such companies may incur at the end of a tax year should be presumed to mostly correspond to the results of trading activity. Based on that premise, taxpayers should be allowed to carry losses forward indefinitely without restrictions on the deductible amount per year. Since the carry-forward of losses is intended to ensure that a taxpayer pays tax on its real income, there is no reason to place a time limit on carry forward. Regarding the prospect for a loss carry-back, no such a rule would need to be introduced because that this is relatively rare in the practice of Member States, and tends to lead to excessive complexity. Furthermore, an anti-abuse provision should be laid down in order to prevent, thwart or counter attempts to circumvent the rules on loss deductibility through purchasing loss- making companies.deleted

2017/09/29
Committee: ECON

Proposal for a directive
Recital 13

(13) In order to facilitate the cash-flow capacity of businesses – for instance, by compensating start-up losses in a Member State with profits in another Member State – and encourage the cross-border expansion within the Union, taxpayers should be entitled to temporarily take into account the losses incurred by their immediate subsidiaries and permanent establishments situated in other Member States. For that purpose, a parent company or head office located in a Member State should be able to deduct from its tax base, in a given tax year, the losses incurred in the same tax year by its immediate subsidiaries or permanent establishments situated in other Member States in proportion to its holding. The parent company should then be required to add back to its tax base, considering the amount of losses previously deducted, any subsequent profits made by those immediate subsidiaries or permanent establishments. As it is vital to safeguard national tax revenues, the deducted losses should also be reincorporated automatically if this has not already occurred after a certain number of years or if the requisites to qualify as an immediate subsidiary or permanent establishment are no longer met.deleted

2017/09/29
Committee: ECON

Matt CARTHY, Fabio DE MASI

Proposal for a directive
Recital 14

(14) To avoid the base erosion of higher tax jurisdictions through shifting profits via inflated transfer prices towards lower tax countries, ~~transactions between a taxpayer and its associated enterprise(s) should be subject to pricing adjustments in line with the 'arm's length' principle, which is a generally applied criterion~~full inclusion CFC rules should apply to ensure that an entity is liable for its world income.

2017/09/29
Committee: ECON

Proposal for a directive
Recital 16

(16) As far as specific anti-tax avoidance measures are concerned, it is often necessary to ascertain the level of taxation on the other side of the border, in order to determine whether the taxpayer is liable to pay tax on foreign generated income. This would create a level-playing field regarding the level of tax and competition within the internal market and also protect the market from base erosion vis-à-vis third countries. In this context, it is necessary to provide for a switch-over clause targeting some types of income earned in a third country, such as profit distributions and proceeds from the disposal of shares, in order to ensure that income be taxable in the Union if it has been taxed below a certain level in a third country. Controlled foreign company (‘CFC’) legislation is also an indispensable element of a corporate tax system and has the effect of re-attributing the income of a low-taxed controlled subsidiary to its parent company in an effort to discourage profit shifting. In that regard, it is necessary that CFC rules extend to the profits of permanent establishments where those profits are not subject to tax or are tax exempt in the Member State of the taxpayer. Under the Anti-Tax Avoidance Directive Member States are provided with two options for implementing CFC rules - to either tax interest, royalties and other relevant types of income of all low- tax foreign subsidiaries, or alternatively to tax income of low-tax subsidiaries arising from non-genuine arrangements which have been put in place for the essential purpose of obtaining a tax advantage. The second option is very weak and open to abuse, because it only protects against profit-shifting out of the home country and requires the tax authority to analyse many individual transactions of low-tax subsidiaries; Member States should implement the strongest possible CFC rules under the ATAD.

2017/09/29
Committee: ECON

Matt CARTHY, Fabio DE MASI

Proposal for a directive
Recital 17

(17) Taking into account that the effect of branch and hybrid mismatches is usually a double deduction (i.e. deduction in both states) or a deduction of the income in one state without inclusion in the tax base of another, such situations clearly affect the internal market by distorting its mechanisms and creating loopholes for tax avoidance practices to flourish. Given that mismatches generate from national differences in the legal qualification of certain types of entities or financial payments, they normally do not occur amongst companies which apply the common rules for calculating their tax base. Mismatches would however persist in the interaction between the framework of the common base and national or third- country corporate tax systems. To neutralise the effects of branch and hybrid mismatch arrangements, it is necessary to lay down rules whereby one of the two jurisdictions in a mismatch deny the deduction of a payment or ensures that the corresponding income is included in the corporate tax base. Such rules on branch and hybrid mismatches should act automatically whenever a payment comes across the border having been deducted at the paying end, without having to prove a tax avoidance motive. Member States should revise their double taxation treaties in order to remove provisions that facilitate tax avoidance through mismatches.

2017/09/29
Committee: ECON

Proposal for a directive
Article 2 – paragraph 1 – point c

(c) it belongs to a consolidated group for financial accounting purposes with a total consolidated group revenue that exceeded EUR 7540 000 000 during the financial year preceding the relevant financial year; this threshold shall be phased out over a period of five years;

2017/09/29
Committee: ECON

Proposal for a directive
Article 3 – paragraph 1 – point a

(a) it has a right to exercise more than 250 % of the voting rights; and

2017/09/29
Committee: ECON

Proposal for a directive
Article 3 – paragraph 1 – point b

(b) it has an ownership right amounting to more than 75 50% of the subsidiary’s capital or owns more than 75 50% of the rights giving entitlement to profit.

2017/09/29
Committee: ECON

Proposal for a directive
Article 5 – paragraph 1 – introductory part

1. A taxpayer shall be considered to have a permanent establishment in a Member State other than the Member State in which it is resident for tax purposes when it has a fixed or virtual place in that other Member State through which it carries on its business, wholly or partly, including in particular:

2017/09/29
Committee: ECON

Proposal for a directive
Article 5 – paragraph 1 – point f a (new)

(fa) a virtual platform.

2017/09/29
Committee: ECON

Proposal for a directive
Article 5 – paragraph 5 – point b

(b) For the purposes of this Article, a person is 'closely related' to a taxpayer if one possesses, directly or indirectly, a right to exercise more than 250 % of the voting rights in the other or an ownership right amounting to more than 250 % of the other's capital or more than 250 % of the rights giving entitlement to profit.

2017/09/29
Committee: ECON

Proposal for a directive
Article 8 – paragraph 1 – point c

(c) proceeds from a disposal of shares, provided that the taxpayer has maintained a minimum holding of 10 % in the capital or 10 % of the voting rights of the company during the 12 months preceding the disposal, with the exception of proceeds resulting from a disposal of shares held for trading as referred to in Article 21(3) and of shares held by life insurance undertakings in accordance with point (b) of Article 28;deleted

2017/09/29
Committee: ECON

Proposal for a directive
Article 8 – paragraph 1 – point d

(d) received profit distributions, provided that the taxpayer has maintained a minimum holding of 10 % in the capital or 10 % of the voting rights of the distributing company for 12 consecutive months, with the exception of profit distributions from shares held for trading as referred to in Article 21(4) and profit distributions received by life insurance undertakings in accordance with point (c) of Article 28;deleted

2017/09/29
Committee: ECON

Proposal for a directive
Article 8 – paragraph 1 – point e

~~(e) income of a permanent establishment received by the taxpayer in the Member State where the taxpayer is resident for tax purposes.~~deleted

2017/09/29
Committee: ECON

Proposal for a directive
Article 9 – paragraph 3 – subparagraph 1

In addition to the amounts which are deductible as costs for research and development in accordance with paragraph 2, the taxpayer may also deduct, per tax year, an extra 50% of such costs, with the exception of the cost related to movable tangible fixed assets, that it incurred during that year. To the extent that costs for research and development reach beyond EUR 20 000 000, the taxpayer may deduct 25% of the exceeding amount.deleted

2017/09/29
Committee: ECON

Proposal for a directive
Article 9 – paragraph 3 – subparagraph 1

In addition to the amounts which are deductible as costs for research and development in accordance with paragraph 2, the taxpayer may also deduct, per tax year, an extra 510% of such costs, with the exception of the cost related to movable tangible fixed assets, that it incurred during that year. To the extent that costs for research and development reach beyond EUR 20 000 000, the taxpayer may deduct 25% of the exceeding amount.

2017/09/29
Committee: ECON

Proposal for a directive
Article 9 – paragraph 3 – subparagraph 2

By way of derogation from the first subparagraph, the taxpayer may deduct an extra 100% of its costs for research and development up to EUR 20 000 000 where that taxpayer meets all of the following conditions: (a) fewer than 50 employees and an annual turnover and/or annual balance sheet total that does not exceed EUR 10 000 000; (b) longer than five years. If the taxpayer is not subject to registration, the period of five years may be taken to start at the momendeleted it is an unlisted enterprise with it has not been registered for it tha~~t the enterprise either starts, or is liable to tax for, its economic activity; (c) merger; (d) it does not have any associated enterprises.~~s not been formed through a

2017/09/29
Committee: ECON

Proposal for a directive
Article 9 – paragraph 3 – subparagraph 2 – introductory part

By way of derogation from the first subparagraph, the taxpayer may deduct an extra 1050% of its costs for research and development up to EUR 210 000 000 where that taxpayer meets all of the following conditions:

2017/09/29
Committee: ECON

Proposal for a directive
Article 11

~~[...]~~deleted

2017/09/29
Committee: ECON

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1

Exceeding borrowing costs shall be deductible in the tax year in which they are incurred for maximum of 310 % of the taxpayer's earnings before interest, tax, depreciation and amortisation (‘EBITDA’) or for a maximum amount ~~of EUR 3 000 000, whichever is higher~~defined by the thin capitalization rules.

2017/09/29
Committee: ECON

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 2

For the purposes of this Article, where a taxpayer is permitted or required to act on behalf of a group, as defined in the rules of a national group taxation system, the entire group shall be treated as a taxpayer. In those circumstances, exceeding borrowing costs and the EBITDA shall be calculated for the entire group. The amount ~~of EUR 3 000 000~~defined by the thin capitalization rules shall also be considered for the entire group.

2017/09/29
Committee: ECON

Proposal for a directive
Article 13 – paragraph 4

4. By way of derogation from paragraph 2, a taxpayer who qualifies as a standalone company shall be entitled to fully deduct its exceeding borrowing costs. A standalone company means a taxpayer who is not part of a consolidated group for financial accounting purposes and has no associated enterprises or permanent establishments.deleted

2017/09/29
Committee: ECON

Proposal for a directive
Article 13 – paragraph 6

6. Exceeding borrowing costs that cannot be deducted in a given tax year shall be carried forward ~~without time limitation~~for a maximum of five years.

2017/09/29
Committee: ECON

Proposal for a directive
Article 13 – paragraph 7

7. Paragraphs 1 to 6 shall not apply to financial undertakings, including those that are part of a consolidated group for financial accounting purposes for a duration of five years starting on the date of entry into force of this directive.

2017/09/29
Committee: ECON

Proposal for a directive
Article 13 a (new)

Article 13a Royalties limitation rule 1. Royalty costs shall be fully deductible in the tax year in which they are incurred if the corresponding income with the recipient of the royalty or licence fee payments by the taxpayer is subject to an effective tax rate at least as high than the effective tax rate that would have applied for the taxpayer in case of non- deductibility. The deductibility of royalty costs shall be limited in time to three years so as to consider the contribution to the global brand value of the different entities in the group. 2. Royalty costs for which the corresponding income with the recipient of the royalty and licence fee payments is, at its final destination, subject to an effective tax rate lower than the effective tax rate that would apply for the taxpayer in case of non-deductibility shall only be deductible proportionally to the difference in effective tax rates. For the purpose of this paragraph, "proportional" means that for x% difference between the effective tax rates applicable for the taxpayer and the final recipient of the royalty income, a share of x% of the royalty costs are deductible for the taxpayer.

2017/09/29
Committee: ECON

Proposal for a directive
Article 41

1. resident taxpayer or a permanent establishment of a non-resident taxpayer may be carried forward and deducted in subsequent tax years, unless otherwise provided by this Directive. 2. result of considering losses from previous tax years shall not result in a negative amount. 3. taxpayer or by a permanent establishment of a non-resident taxpayer in previous years shall not be deducted where all of the following conditions are met: (a) participation in the taxpayer as a result of which the acquired taxpayer becomes a qualifying subsidiary of the acquirer as referred to in Article 3; (b) of the acquired taxpayer, which means that the acquired taxpayer discontinues a certain activity which accounted for more than [60 %] of its turnover in the previous tax year or embarks on new activities which amount to more than [60 %] of its turnover in the tax year of their introduction or the following tax year. 4. first.Article 41 deleted Losses Losses incurred in a tax year by a A reduction of the tax base as a Losses incurred by a resident another company acquires a there is a major change of activity The oldest losses shall be deducted

2017/09/29
Committee: ECON

Fabio DE MASI, Stelios KOULOGLOU

Proposal for a directive
Article 42

1. profitable after having deducted its own losses pursuant to Article 41 may additionally deduct losses incurred, in the same tax year, by its immediate qualifying subsidiaries, as referred to in Article 3(1), or by permanent establishment(s) situated in other Member States. This loss relief shall be given for a limited period of time in accordance with paragraphs 3 and 4 of this Article. 2. proportion to the holding of the resident taxpayer in its qualifying subsidiaries as referred to in Article 3(1) and full for permanent establishments. In no case shall the reduction of the tax base of the resident taxpayer result in a negative amount. 3. back to its tax base, up to the amount previously deducted as a loss, any subsequent profits made by its qualifying subsidiaries as referred to in Article 3(1) or by its permanent establishments. 4. paragraphs 1 and 2 shall automatically be reincorporated into the tax base of the resident taxpayer in any of the following circumstances: (a) year after the losses became deductible, no profit has been reincorporated or the reincorporated profits do not correspond to the full amount of losses deducted; (b) referred to in Article 3(1) is sold, wound up or transformed into a permanent establishment; (c) establishment is sold, wound up or transformed into aArticle 42 deleted Loss relief and recapture A resident taxpayer that is still The deduction shall be in The resident taxpayer shall add Losses deducted pursuant to where, at the end of the fifth tax where the qualifying subsidiary~~; (d)~~ as where the p~~arent company no longer fulfils the requirements of Article 3(1).~~ermanent

2017/09/29
Committee: ECON

Proposal for a directive
Article 53 – paragraph 1 – subparagraph 1

By way of derogation from points (c) and (d) of Article 8, a taxpayer shall not be exempt from tax on foreign income that the taxpayer received as a profit distribution from an entity in a different Member State or a third country or as proceeds from the disposal of shares held in an entity in a third country or another Member State where that entity in its country of tax residence is subject to a ~~statutory~~n effective corporate tax rate lower than ~~half~~90 % of the ~~statutory~~effective tax rate that the taxpayer would have been subject to, in connection with such foreign income, in the Member State of its residence for tax purposes.

2017/09/29
Committee: ECON

Proposal for a directive
Article 53 – paragraph 1 – subparagraph 1 a (new)

In order to ensure the effectiveness of the measures laid down in the first subparagraph, the Commission shall by no later than 31 December 2018 put forward a legislative proposal for a minimum effective tax rate of 25% across Member States.

2017/09/29
Committee: ECON

Proposal for a directive
Article 53 – paragraph 1 – subparagraph 2

The first subparagraph shall not apply where a convention for the avoidance of double taxation between the Member State in which the taxpayer is resident for tax purposes and the third country where that entity is resident for tax purposes does not allow switching over from a tax exemption to taxing the designated categories of foreign income.deleted

2017/09/29
Committee: ECON

Proposal for a directive
Article 55 – paragraph 1

1. A deduction from the tax liability (‘tax credit’) of a taxpayer shall be allowed where that taxpayer derives income that has been taxed in another Member State or in a third country~~, other than income that is exempt under points (c), (d) or (e) of Article 8~~.

2017/09/29
Committee: ECON

Proposal for a directive
Article 59 – paragraph 1 – subparagraph 1 – point a

(a) in the case of an entity, the taxpayer itself, or together with its associated enterprises, holds a direct or indirect participation of more than 50 % of the voting rights, or owns directly or indirectly more than 50 % of capital or is entitled to receive more than 50 % of the profits of that entity or can be considered the ultimate place of effective management of the entity meaning the place where key management and commercial decisions of the entity that are necessary for the conduct of the entity’s business are in substance made; and

2017/09/29
Committee: ECON

Proposal for a directive
Article 59 – paragraph 1 – subparagraph 1 – point b

(b) ~~the actual corporate tax paid by~~profits of the entity or permanent establishment ~~on its profits is lower than the difference between the corporate~~are subject to a statutory tax thrate would have been charged on the profits of the entity or permanent establishment in accordance with the rules of this Directive and the actual corporate tax paid on those profits by the entity or permanent establishmenthich is below 90% of the statutory tax rate of the Member State of the head office.

2017/09/29
Committee: ECON

Proposal for a directive
Article 59 – paragraph 1 – subparagraph 2

For the purposes of point (b) of the first subparagraph, in computing the corporate tax that would have been charged on the profits of the entity according to the rules of the Directive in the Member State of the taxpayer, the income of any permanent establishment of the entity that is not subject to tax or is exempt from tax in the jurisdiction of the controlled foreign company shall not be taken into account.deleted

2017/09/29
Committee: ECON

Proposal for a directive
Article 59 – paragraph 2 – subparagraph 1 – point d a (new)

(da) income from immovable property, unless the Member State of the taxpayer would not have been entitled to tax the income under an agreement concluded with a third country;

2017/09/29
Committee: ECON

Proposal for a directive
Article 59 – paragraph 2 – subparagraph 1 – point f

(f) income from ~~invoicing companies that earn sales and services income from goods and services purchased from and sold to associated enterprises and add no or little economic value~~services rendered to or goods traded with the taxpayer or its associated enterprises .

2017/09/29
Committee: ECON

Proposal for a directive
Article 59 – paragraph 3 – subparagraph 1

An entity or permanent establishment shall not be treated as a controlled foreign company as referred to in paragraph 1 where not more than ~~one third~~25% of the income accruing to the entity or permanent establishment falls within categories (a) to (f) of paragraph 2.

2017/09/29
Committee: ECON

Proposal for a directive
Article 61 – paragraph 1 – subparagraph 2

To the extent that a hybrid mismatch involving a third country results in a double deduction of the same payment, expenses or losses, the Member State concerned shall deny the deduction of such payment, expenses or losses, unless the third country has already done so. The burden of proof of this denial shall be on the taxpayer.

2017/09/29
Committee: ECON

Proposal for a directive
Article 61 – paragraph 2 – subparagraph 2 – point b

(b) if the payment has its source in a third country, the Member State concerned shall require the taxpayer to include such payment in the taxable base, unless the third country has already denied the deduction or has required that payment to be included. The burden of proof of this denial of deduction or requirement of inclusion shall be on the taxpayer.

2017/09/29
Committee: ECON

Proposal for a directive
Article 61 – paragraph 4

4. To the extent that a payment by a taxpayer to an associated enterprise in a third country is set off directly or indirectly against a payment, expenses or losses which due to a hybrid mismatch are deductible in two different jurisdictions outside the Union, the Member State of the taxpayer shall deny the deduction of the payment by the taxpayer to an associated enterprise in a third country from the taxable base, unless one of the third countries involved has already denied the deduction of the payment, expenses or losses that would be deductible in two different jurisdictions. The burden of proof of this denial shall be on the taxpayer.

2017/09/29
Committee: ECON

Proposal for a directive
Article 61 – paragraph 5

5. To the extent that the corresponding inclusion of a deductible payment by a taxpayer to an associated enterprise in a third country is set off directly or indirectly against a payment which, due to a hybrid mismatch, is not included by the payee in its taxable base, the Member State of the taxpayer shall deny the deduction of the payment by the taxpayer to an associated enterprise in a third country from the taxable base, unless one of the third countries involved has already denied the deduction of the non-included payment. The burden of proof of this denial shall be on the taxpayer.

2017/09/29
Committee: ECON

Proposal for a directive
Article 61a – paragraph 1

To the extent that a payment, expenses or losses of a taxpayer who is resident for tax purposes in both a Member State and a third country, in accordance with the laws of that Member State and that third country, are deductible from the taxable base in both jurisdictions and that payment, those expenses or losses can be set-off in the Member State of the taxpayer against taxable income that is not included in the third country, the Member State of the taxpayer shall deny the deduction of the payment, expenses or losses, unless the third country has already done so. The burden of proof of this denial shall be on the taxpayer.

2017/09/29
Committee: ECON