49 Amendments of Jonás FERNÁNDEZ related to 2023/0322(CNS)
Amendment 46 #
Proposal for a directive
Recital 2 a (new)
Recital 2 a (new)
(2 a) Base erosion and profit shifting (BEPS) refers to tax planning strategies used by multinational enterprises that exploit gaps and mismatches in tax rules to avoid paying tax. Transfer pricing, while currently needed to determine where profits are reported, has also been misused for reducing the tax liabilities of firms in countries with higher tax rates leading to profit shifting. The arm’s length principle should be applied in Member States, and by taxpayers, in a manner that guarantees greater tax certainty for taxpayers and minimizes opportunities for profit shifting.
Amendment 52 #
Proposal for a directive
Recital 3
Recital 3
(3) Where Member States apply or interpret the arm’s length principle differently, they create situations that could harm the internal market , instigate harmful tax competition,forster double taxation and/or double non taxation, attract aggressive tax avoidance structures, form illegal state aid and reduce revenues from Member States. Inconsistency in applicable transfer pricing rules not only could lead to double taxation but also allow for profit shifting and tax avoidance. Such inconsistency is a serious tax obstacle forhreat to tax fairness and certainty, tax morale, ability of tax administration to tax, It can also have an impact on businesses operating across borders and, is likely to cause economic distortions and inefficiencies and has a negative impact on cross-border investment and growth, such has artificial financial flows, and inefficiencies.
Amendment 58 #
Proposal for a directive
Recital 4
Recital 4
(4) This Directive lays down rules to ensure a commonbetter coordinated application of the arm’s length principle across the Union with the aim of increasing tax certainty and reducing occurrences of double non taxation as well as double non taxation.
Amendment 66 #
Proposal for a directive
Recital 7
Recital 7
(7) There may be legitimate reasons as to why a corresponding adjustment is not given or is less than the primary adjustment. In particular, Member States should not grant corresponding adjustments if: (i) the primary adjustment is not considered to be consistent with the arm’s length principle; (ii) the primary adjustment does not result in the taxation of an amount of profits in another jurisdiction on which the associated enterprise in the relevant Member State has already been subject to tax; and (iii) when a third country jurisdiction is involved, there is no tax treaty in place. In the absence of a primary adjustment, Member States may perform a downward adjustment only if: (i) the downward adjustment is consistent with the arm’s length principle and not leading to double non taxation: (ii) an amount equal to the downward adjustment is included in the profit of the associated enterprise in the other jurisdiction and therein subject to tax: and (iii) a communication on the intention to perform a downward adjustment has been sent to the relevant jurisdiction. The aim of the previous provisions is to ensure that: (i) Member States can preserve the right to assess whether the primary adjustment is at arm’s length; and (ii) there is neither double taxation nor double non- taxation. Member States should not create situations of double non-taxation.
Amendment 71 #
Proposal for a directive
Recital 10
Recital 10
(10) Transfer pricing methods are used to establish the arm’s length prices for transactions between associated enterprises. The methods listed in this Directive are in line with Chapter III of the Organisation for Economic Co-operation and Development (OECD) Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations 2022 (‘OECD Transfer Pricing Guidelines’) and are not exclusive of other international standards endorsed by a majority of Member States. This Directive does not have a preference for any of these recognised transfer pricing methods. Instead, the most appropriate method rule provided for in this Directive should be applied and thus the most appropriate method should be chosen taking into consideration the facts and circumstances of the specific case. This Directive further provides that a transfer pricing method other than the OECD recognised methods may be applied only where it can be demonstrated that: (i) none of the OECD recognised methods can be reasonably applied to determine arm’s length conditions for the controlled transaction (i.e. the transaction between associated enterprises); and (ii) such other method produces a result consistent with the result which would be achieved by independent enterprises engaging in comparable uncontrolled transactions under comparable circumstances. The taxpayer, or the tax administration, that uses a method other than one of the OECD recognised methods should bear the burden of demonstrating that the requirements have been satisfied. When the conditions are fulfilled and an economic valuation technique is applied to identify an arm's length price, the content and recommendations of the Commission’s 2017 EU Joint Transfer Pricing Forum Report on the use of economic valuation techniques in transfer pricing31 should be taken into due consideration. _________________ 31 JTPF/003/2017/FINAL/EN, Meeting of 22 June 2017: https://taxation- customs.ec.europa.eu/system/files/2017- 10/2017_10_16_jtpf_003_2017_en_final_ en.pdf
Amendment 74 #
Proposal for a directive
Recital 11
Recital 11
(11) The selection of the transfer pricing method should always aim at finding the most appropriate method for a particular case. The selection process of the most appropriate transfer pricing method should take account of (i) the respective strengths and weaknesses of the transfer pricing methods; (ii) the appropriateness of the method considered in view of the nature of the controlled transaction, determined in particular through a functional analysis; (iii) the availability of reliable information (in particular on uncontrolled comparables) needed to apply the selected method or other methods; and (iv) the degree of comparability between controlled and uncontrolled transactions, including the reliability of comparability adjustments that may be needed to eliminate material differences between them. No one method is suitable in every possible situation, nor is it necessary to prove that a particular method is not suitable in a given set of circumstances. It should be noted that one- sided methods such as Resale Price, Cost Plus, Transactional Net Margin Method are not considered reliable if each party to a transaction makes unique and valuable contributions in relation to the controlled transaction, or where the parties engage in highly integrated activities. In such a case, the profit split method is the most appropriate method, since independent parties might effectively price the transaction in proportion to their respective contributions, in which case a two-sided method would be more appropriate. One- sided methods are appropriate where one of the parties makes all of the unique and valuable contributions involved in the controlled transaction, while the other party does not make any unique and valuable contribution. In such a case, the tested party, that is, the party to the controlled transaction for which a financial indicator is tested, should be the one to which a transfer pricing method can be applied in the most reliable manner and for which the most reliable comparables can be found. The party that does not make any unique and valuable contributions in relation to the transaction will most often be the one to which a one-sided transfer pricing method can be applied most reliably.
Amendment 84 #
Proposal for a directive
Recital 15
Recital 15
(15) The rules provided by this Directive should be applied in in a manner consistent with the OECD Transfer Pricing Guidelines or any other relevant international guidelines.
Amendment 89 #
Proposal for a directive
Recital 16
Recital 16
(16) In order to create more certainty for taxpayers and mitigate the risk of double non taxation and double taxation, the possibility to establish further common transfer pricing binding rules by way of implementing acts is provided in this Directive. Those implementing acts should provide taxpayers with a clear view of what tax authorities in the Union would consider to be acceptable to be used for specified transactions and provide so- called ‘safe harbours’ that bring down the compliance burden and the number of disputes. In view of the potential impact of such measures on national executive and enforcement power regarding direct taxation, the exercising of taxing rights allocated under bilateral or multilateral tax conventions that prevent double taxation or double non-taxation and in view of potential impact on Member States’ tax bases, implementing powers to adopt decisions under this Directive should be conferred on the Council, acting on a proposal from the Commission.
Amendment 90 #
Proposal for a directive
Recital 16 a (new)
Recital 16 a (new)
(16 a) Divergent interpretation of the terms used in the international guidelines on Transfer Pricing, including the OECD guidelines, are likely to result in instances of double taxation, entail legal uncertainty, additional costs for businesses and distortion of competition. Uniform interpretation of those terms at Union level is also necessary to facilitate application of the present Directice by the tax administrations and businesses, in view of the future adapations of the international guidelines on transfer pricing. In that spirit, the Commission is empowered to adopt implementing acts aiming at guaranteeing sufficient flexibility to remain aligned with international standards.
Amendment 91 #
Proposal for a directive
Recital 16 b (new)
Recital 16 b (new)
(16 b) As transfer pricing is a mattet that evolves over time, it will be essential to continuasly monitor the need for adjustements of the present Directive with the objective of guaranteeing the uniformity of transfer pricing methodologies within the EU and at global stage. Representatives of Members States,tax payers, academics and civil society should be able to exchange on the effective implementation of the present directive and identify potential needs for adaptation. A 'European Forum on Transfer Pricing' (EFTP) is created for that purpose.
Amendment 92 #
Proposal for a directive
Recital 16 c (new)
Recital 16 c (new)
(16 c) In order to increase tax certainty and ease the risk assessment by tax authorities, it would be very useful to provide for a simplified approach to transfer pricing compliance. To this aim, it would be important to enact a common risk assessment framework for transfer pricing based on a commonly accepted benchmark analysis. This assessment would investigate the margins of Earnings Before Interest and Tax for entities operating independently within the internal market. The profit markers so obtained should then be published, to be used as a self-assessment risk tool, and enable groups operating in the internal market to know in advance the arm’s length returns (market based) that they are expected to achieve in transactions with associated enterprises. Each transaction within the scope of the system should be assessed as being of low, medium or high risk, depending on how this compares to the profit markers, which will be set through an implementing act and published on the website of the Commission.
Amendment 95 #
Proposal for a directive
Recital 17 a (new)
Recital 17 a (new)
(17 a) This directive should cease to apply as of 2035 for BEFIT groups except for the transactions with associated enterprises in third countries.
Amendment 102 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
This Directive lays down rules to harmoniscoordinate transfer pricing rules of Member States and to ensure a common application of the arm’s length principle within the Union.
Amendment 112 #
Proposal for a directive
Article 3 – paragraph 1 – point 18
Article 3 – paragraph 1 – point 18
(18) ‘OECD Transfer Pricing Guidelines’ means the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations 2022, endorsed by the OECD Council pursuant to the OECD Council Recommendation of the Council on the Determination of Transfer Pricing between Associated Enterprises [C(95)126/Final], and as amended in January 20, 2022 and included in Annex I, and; The Commission shall be empowered to adopt delegated acts, in accordance with Article 18, in order to incorporate any further amendments tof these OECD Transfer Pricing Guidelines that the Union approved in the context of the OECD Committee on Fiscal Affairs via the adoption of a Union position under 218(9) TFEUinto this Directive;
Amendment 116 #
Proposal for a directive
Article 5 – paragraph 1 – point a
Article 5 – paragraph 1 – point a
(a) a person participates in the management of another person by being in a position to exercise a significant influence over ethe other person;
Amendment 128 #
Proposal for a directive
Article 6 – paragraph 3 – point a – point i
Article 6 – paragraph 3 – point a – point i
(i) indicate all factual and legal circumstances necessary to evaluate, under the arm’s length principle, the primary adjustment performed in the other jurisdiction, including relevant transfer pricing documentation communicated to the different Member States;
Amendment 129 #
Proposal for a directive
Article 6 – paragraph 3 – point a – point ii a (new)
Article 6 – paragraph 3 – point a – point ii a (new)
(ii a) communicate, for each Member States concerned by the adjustment, the effective tax rate calculated within the meaning of Directive (EU) 2022/2523 of 14 December 2022 on ensuring a global minimum level of taxation for multinational enterprise groups and large-scale domestic groups in the Union;
Amendment 133 #
Proposal for a directive
Article 6 – paragraph 3 – point c
Article 6 – paragraph 3 – point c
(c) Member States shall ensure that when the double taxation arises from a primary adjustment made in another Member State, the procedure is concluded within 180 days from the receipt of the taxpayer’s request with a reasoned act of acceptance or rejection. The procedure can be extended once by a reasonable period of time if the tax payer and the involved Member States all agree to such extension.
Amendment 138 #
Proposal for a directive
Article 6 – paragraph 5 – point a a (new)
Article 6 – paragraph 5 – point a a (new)
(a a) the downward adjustment is not leading to double non taxation, the Member State performing the downward adjustment needs to receive assurances that the downward adjustment is included in the profits of the associated enterprise in the other jurisdiction and taxed;
Amendment 142 #
Proposal for a directive
Article 9 – paragraph 1 – introductory part
Article 9 – paragraph 1 – introductory part
1. Member States shall ensure that the arm's length price charged in a controlled transaction between associated enterprises is determined only using one of the following transfer pricing methods:
Amendment 143 #
Amendment 144 #
Proposal for a directive
Article 9 – paragraph 2 – point a
Article 9 – paragraph 2 – point a
Amendment 145 #
Proposal for a directive
Article 9 – paragraph 2 – point b
Article 9 – paragraph 2 – point b
Amendment 146 #
Proposal for a directive
Article 9 – paragraph 2 – point b
Article 9 – paragraph 2 – point b
Amendment 160 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. Member States shall include in the national rules transposing the transfer pricing rules laid down in Chapter II of this Directive provisions that ensure that those transfer pricing rules are applied in a manner consistent with the OECD Transfer Pricing Guidelines. latest internationally recommended Transfer Pricing Guidelines, from either the OECD or the United Nations.
Amendment 161 #
Proposal for a directive
Article 14 – paragraph 1 – point 1 (new)
Article 14 – paragraph 1 – point 1 (new)
(1) Member States shall ensure that transfer pricing rules are applied in a manner consistent with the latest internationally recommended Transfer Pricing Guidelines, from either the OECD or the United Nations.
Amendment 162 #
Proposal for a directive
Article 14 – paragraph 2 – introductory part
Article 14 – paragraph 2 – introductory part
2. The Councilmmission may lay down further rules, consistent with the OECD Transfer Pricing Guidelinesthe latest internationally recommended Transfer Pricing Guidelines, from either the OECD or the United Nations , on how the arm’s length principle and the other provisions laid down in Chapter II of this Directive are to be applied in specific transactions to ensure more tax certainty and mitigate the risk of double non taxation. Those specific transactions or dealings are the following: and double taxation, and reduce tax diputes and tax abuse
Amendment 166 #
Proposal for a directive
Article 14 – paragraph 2 – point a
Article 14 – paragraph 2 – point a
Amendment 167 #
Proposal for a directive
Article 14 – paragraph 2 – point b
Article 14 – paragraph 2 – point b
Amendment 170 #
Proposal for a directive
Article 14 – paragraph 2 – point c
Article 14 – paragraph 2 – point c
Amendment 171 #
Proposal for a directive
Article 14 – paragraph 2 – point d
Article 14 – paragraph 2 – point d
Amendment 173 #
Proposal for a directive
Article 14 – paragraph 2 – point e
Article 14 – paragraph 2 – point e
Amendment 175 #
Proposal for a directive
Article 14 – paragraph 2 – point f
Article 14 – paragraph 2 – point f
Amendment 178 #
Proposal for a directive
Article 14 – paragraph 3
Article 14 – paragraph 3
3. The rules referred to in paragraphs 2 shall be taken by means of Councilmmission implementing acts. Those implementing acts basshall be adopted oin a proposal from the Commissionccordance with the examination procedure referred to in Article 17.
Amendment 181 #
Proposal for a directive
Article 14 a (new)
Article 14 a (new)
Article14a 1. A 'European Forum on Transfer Pricing' (EFTP) is created and chaired by the Commission. The EFTP provides advice and assistance to the committee within the meaning of Article 17, notably to assess the need for adjustment to the present Directive with the objective of guaranteeing the continuous uniformity of transfer pricing methodologies within the EU and at global stage. 2. The EFTP is composed of representatives of Members States and a balance representation of tax payers, academics and civil society. The European Parliment is a member of the EFTP in quality of observer. The conditions for memberhip will be decided by the committee as referred to in Article 17.
Amendment 182 #
Proposal for a directive
Article 14 b (new)
Article 14 b (new)
Amendment 183 #
Proposal for a directive
Article 14 c (new)
Article 14 c (new)
Article14c Compliance framework 1. Member States shall structure their risk assessment framework for the activities mentioned in Article 14b in such a way as to consist of three transfer pricing risk zones. 2. The risk zones shall be determined using the interquartile range of the profit performance resulting from the Union public benchmarks referred to in Article 14e. 3.The activities mentioned in Article 14b shall be risk assessed as being of low, medium or high risk, depending on how their profit performance in a given year, determined under Article 14d, compares to the interquartile range of the most recent set of public benchmarks prepared before the end of that year. 4. Member States shall apply the following risk framework: Risk zone Profit performance of the tested party relative to the EU profit markers low above 60TH percentile of the results of the public benchmark medium below 60TH percentile but above the 40TH percentile of the results of the public benchmark high below the 40TH percentile of the results of the public benchmark 5. Member States shall take the appropriate measures, in order to structure their approach to risk compliance in accordance with the following principles: (a) Low-risk zone: the competent authorities of the Member States may not dedicate additional compliance resources to further review the transfer pricing results. Notwithstanding this, the competent authorities of the Member States shall retain the right to perform transfer pricing adjustments of the profit margins of the taxpayer that falls within the low-risk zone. (b) Medium-risk zone: the competent authorities of the Member States may monitor the results, using available data, and contact the taxpayer, to seek a better understanding of its circumstances before deciding whether to allocate compliance resources to carrying out risk assessments and audits. (c) High-risk zone: the competent authorities of the Member States may recommend that the taxpayer reviews its transfer pricing policies and may decide to initiate a review or audit.
Amendment 184 #
Proposal for a directive
Article 14 d (new)
Article 14 d (new)
Article14d Measure of the performance 1.Member States shall lay down the appropriate legal framework, so that their competent authorities measure the profitability of the distribution activity mentioned in Article 14b (2) using Earnings Before Interest and Tax relative to sales as a profit level indicator. 2.Member States shall lay down the appropriate legal framework, so that their competent authorities measure the profitability of the manufacturing activity mentioned in Article 14 b(3) using Earnings before Interest and Tax relative to total costs as profit level indicator.
Amendment 185 #
Proposal for a directive
Article 14 e (new)
Article 14 e (new)
Amendment 189 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
1. The Commission shall examine and evaluate the application of this Directive every 53 years and submit a report on its evaluation to the European Parliament and to the Council. The first report shall be submitted by 31 December 203129.
Amendment 191 #
Proposal for a directive
Article 15 – paragraph 2
Article 15 – paragraph 2
2. Member States shall communicate to the Commission relevant information for the evaluation of this Directive with a view to improving the application of the arm’s length principle, to reducing double non taxation and double taxation as well as to combatting tax abuse and tax disputes, in accordance with paragraph 3.
Amendment 193 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
2. Information, including personal data, processed in accordance with this Directive shall be retained only for as long as necessary to achieve the purposes of this Directive, in accordance with each data controller’s national law on statute of limitations, but in any case no longer than 105 years as of the moment when personal data are processed for the purposes specified in this Directive.
Amendment 195 #
Proposal for a directive
Article 17 – paragraph 1
Article 17 – paragraph 1
1. The Commission shall be assisted by a Committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011438 . _________________ 38 Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011laying down the rules and general principles concerning mechanisms for control by Member States ofthe Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13–18)
Amendment 197 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
1. The power to adopt the delegated act referred to in Articles 13 (18) and shall be conferred on the Commission subject to the conditions laid down in this Article.
Amendment 199 #
Proposal for a directive
Article 18 – paragraph 3
Article 18 – paragraph 3
3. Before adopting the delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Inter-institutional Agreement on better law making of 13 April 2016. For the adoption of the delegated act referred to in Article 3(18), the European Forum on Transfer Pricing referred to in Article 14a serves as the relevant expert body.
Amendment 201 #
Proposal for a directive
Article 19 – paragraph 1 a (new)
Article 19 – paragraph 1 a (new)
The European Parliament may attend as observer the international negotiations on Transfer Pricing Guidelines in the relevant international fora
Amendment 203 #
Proposal for a directive
Article 19 a (new)
Article 19 a (new)
Article19a Sunset Clause This directive should cease to apply as of 2035 for BEFIT groups as defined in Article 2 of Directive (EU) XX/2024 (BEFIT Directive).
Amendment 205 #
Proposal for a directive
Article 20 – paragraph 1 – subparagraph 1
Article 20 – paragraph 1 – subparagraph 1
Member States shall adopt and publish, by [31 December 20254]at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions.
Amendment 207 #
Proposal for a directive
Article 20 – paragraph 1 – subparagraph 2
Article 20 – paragraph 1 – subparagraph 2
They shall apply those provisions from [1 January 20265].