32 Amendments of Markus FERBER related to 2021/0433(CNS)
Amendment 60 #
Proposal for a directive
Recital 5
Recital 5
(5) It is necessary to lay down rules in order to establish an efficient and coherent framework for the global minimum level of taxation at Union level. The framework creates a system of two interlocked rules, together referred to as the GloBE rules, through which an additional amount of tax called a top-up tax should be collected each time that the effective tax rate (ETR) of an MNE in a given jurisdiction is below the 15 %. In such case, the jurisdiction is considered to be low-taxed. Those two rules are called the Income Inclusion Rule (IIR) and the Undertaxed Payment Rule (UTPR). Under this system, the parent entity of an MNE located in a Member State has the obligation to apply the IIR to its share of top-up tax relating to any entity of the group that is low-taxed, whether this is located within or outside the Union. The UTPR should act as a backstop to the IIR through a reallocation of any residual amount of top-up tax in cases where not the entire amount of top-up tax relating to low-taxed entities could be collected by parent entities through the application of the IIR. In order to honour the OECD agreement, the European Union should transpose it faithfully and should not attempt to materially go beyond it.
Amendment 62 #
Proposal for a directive
Recital 6
Recital 6
(6) It is necessary to implement the GloBE Model Rules agreed by the Member States in a way that it remains as close as possible to the global agreement. This Directive closely follows the content and structure of the GloBE Model Rules. To ensure compatibility with primary Union law, and more precisely with the freedom of establishment, the rules of this Directive should apply to entities resident in a Member State as well as non-resident entities of a parent entity located in that Member State. This Directive should also apply to very large-scale, purely domestic groups. In this way, the legal framework would be designed to avoid any risk of discrimination between cross-border and domestic situations. All entities, including the parent entity that applies the IIR, which are located in a Member State that is low-taxed, would be subject to the top- up tax. Equally, constituent entities of the same parent entity that are located in another Member State, which is low- taxed, would be subject to the top-up tax.
Amendment 69 #
Proposal for a directive
Recital 7
Recital 7
(7) While it is necessary to ensure that tax avoidance practices are discouraged, adverse impacts on smaller MNEs in the internal market should be avoided. For this purpose, this Directive should only apply to entities located in the Union that are members of MNE groups or large-scale domestic groups that meet the annual threshold of at least EUR 750 000 000 of consolidated revenue. This threshold would be consistent with the threshold of existing international tax rules such as the country- by-country reporting rules9 and should therefore be respected by all Member States. Entities within the scope of this Directive are referred to as constituent entities. Certain entities should be excluded from the scope based on their particular purpose and status. Excluded entities would be those that are not profit-driven and perform activities in the general interest and which are, for these reasons, not likely to be subject to tax in the Member State in which they are located. In order to protect those specific interests, it is necessary to exclude from the scope of the Directive governmental entities, international organisations, non- profit organisations and pension funds from the scope of this Directive. Investment funds and real estate investment vehicles should also be excluded from the scope when they are at the top of the ownership chain, since, for those so-called flow-through entities, the income earned is taxed at the level of the owners. _________________ 9 Council Directive (EU) 2016/881 of 25 May 2016 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation, OJ L 146/8 (3 Jun. 2016) [DAC 4].
Amendment 79 #
Proposal for a directive
Recital 14
Recital 14
(14) To ensure a proportionate approach, this exercise should take into consideration certain specific situations in which BEPS risks are reduced. Therefore, the Directive should include a substance carve-out based on the costs associated with employees and the value of tangible assets in a given jurisdiction. This would allow to address, to a certain extent, situations where an MNE group or a large-scale domestic group carries out economic activities which require material presence in a low-taxed jurisdiction as in such case BEPS practices would be unlikely to flourish. The specific case of MNE groups that are at the first stages of their international activity should also be considered in order not to discourage the development of cross- border activities for MNE groups that benefit from low taxation in their domestic jurisdiction where they are predominantly operating. Thus, the low-taxed domestic activities of such groups should be excluded from the application of the rules for a transitional period of fivesix years, and provided that the MNE group does not have constituent entities in more than sixeight other jurisdictions. In order to ensure equal treatment for large-scale domestic groups, the income from the activities of such groups should also be excluded for a transitional period of fivesix years.
Amendment 109 #
Proposal for a directive
Article 2 – paragraph 1
Article 2 – paragraph 1
1. This Directive shall apply to constituent entities located in the Union that are members of an MNE group or a large-scale domestic group which has an annual revenue of EUR 750 000 000 or more in its consolidated financial statements in at least two of the last four consecutive fiscal years.
Amendment 119 #
Proposal for a directive
Article 3 – paragraph 1 – point 12
Article 3 – paragraph 1 – point 12
(12) ‘minimum tax rate’ means fifteen percent (15 %) as defined in the OECD agreement;
Amendment 130 #
Proposal for a directive
Article 3 – paragraph 1 – point 32 – point a
Article 3 – paragraph 1 – point 32 – point a
(a) a refundable tax credit designed in such a way that it is payable as a cash payment or a cash equivalent to a constituent entity within fourive years from the date when the constituent entity is entitled to receive the refundable tax credit under the laws of the jurisdiction granting the credit; or
Amendment 132 #
Proposal for a directive
Article 3 – paragraph 1 – point 32 – point b
Article 3 – paragraph 1 – point 32 – point b
(b) if the tax credit is refundable in part, the portion of the refundable tax credit that is payable as a cash payment or a cash equivalent to a constituent entity within fourive years from the date when the constituent entity is entitled to receive the partial refundable tax credit;
Amendment 143 #
Proposal for a directive
Article 10 – paragraph 3
Article 10 – paragraph 3
3. Where the amount of qualified domestic top-up tax taken into consideration in the computation of the jurisdictional top-up tax in accordance with Article 26 for a fiscal year has not been fully paid within the threfive following fiscal years, the amount of domestic top-up tax that was not paid shall be added to the jurisdictional top-up tax computed in accordance with Article 26(3).
Amendment 158 #
Proposal for a directive
Article 19 – paragraph 1 – point a
Article 19 – paragraph 1 – point a
(a) taxes accrurecorded in the financial accounts of a constituent entity with respect to its income or profits, or its share of the income or profits of a constituent entity in which it owns an ownership interest;
Amendment 168 #
Proposal for a directive
Article 21 – paragraph 7 – introductory part
Article 21 – paragraph 7 – introductory part
7. A deferred tax liability that is not paid or reversed within the fivesix subsequent fiscal years shall be recaptured to the extent it was taken into account in the total deferred tax adjustment amount of a constituent entity.
Amendment 172 #
Proposal for a directive
Article 21 – paragraph 8 – point c
Article 21 – paragraph 8 – point c
(c) expenses for research and development expenses;
Amendment 175 #
Proposal for a directive
Article 24 – paragraph 1 – subparagraph 2
Article 24 – paragraph 1 – subparagraph 2
At the election of the filing constituent entity, a decrease in covered taxes which is immaterial may be treated as an adjustment to covered taxes in the fiscal year in which the adjustment is made. An immaterial decrease in covered taxes shall be a decrease of less than EUR 1 02 500 000 in the adjusted covered taxes determined for the jurisdiction for the fiscal year.
Amendment 184 #
Proposal for a directive
Article 27 – paragraph 3 – introductory part
Article 27 – paragraph 3 – introductory part
3. The payroll carve-out of a constituent entity located in a jurisdiction shall be equal to 510 % of its eligible payroll costs of eligible employees who perform activities for the MNE group in such jurisdiction, with the exception of eligible payroll costs that are:
Amendment 192 #
Proposal for a directive
Article 29 – paragraph 1 a (new)
Article 29 – paragraph 1 a (new)
1 a. The thresholds in paragraph 1 of this article shall be adjusted on 31 December of every year in order reflect changes in the Harmonised Index of Consumer Prices.
Amendment 196 #
Proposal for a directive
Article 38 – paragraph 5
Article 38 – paragraph 5
5. The outstanding balance, if any, of the deemed distribution tax recapture account at the end of the fourifth fiscal year after such account was established, shall be treated as a reduction to the adjusted covered taxes in accordance with Article 28(1) for the fiscal year in which such account was established.
Amendment 198 #
Proposal for a directive
Article 41 – paragraph 1
Article 41 – paragraph 1
1. At the election of the filing constituent entity, a constituent entity- owner of an investment entity or an insurance investment entity may apply a taxable distribution method with respect to its ownership interest in the investment entity, provided that the constituent entity- owner is not an investment entity and can be reasonably expected to be subject to tax on distributions from the investment entity at a tax rate that equals or exceeds the minimum tax rate.
Amendment 206 #
Proposal for a directive
Article 44 – paragraph 2
Article 44 – paragraph 2
2. A constituent entity that does not comply with the requirement to file a top- up tax information return pursuant to Article 42 for a tax year within the prescribed deadline or makes a false declaration shall be charged an administrative pecuniary penalty amounting to 2,5 % of its turnover in the relevant fiscal year. This penalty shall only apply after the constituent entity has not provided the top-up tax information return pursuant to Article 42, following any reminder issued, within a period of 6 months.
Amendment 210 #
Proposal for a directive
Article 44 – paragraph 2 a (new)
Article 44 – paragraph 2 a (new)
2 a. For the first three years of application, the penalties laid down in paragraph 2 shall be suspended.
Amendment 213 #
Proposal for a directive
Article 46
Article 46
Amendment 216 #
Proposal for a directive
Article 47 – paragraph 1
Article 47 – paragraph 1
1. The top-up tax due by an ultimate parent entity located in a Member State in accordance with Article 5(2) shall be reduced to zero in the first fivesix years of the initial phase of the international activity of the MNE group notwithstanding the requirements laid down in Chapter V.
Amendment 217 #
Proposal for a directive
Article 47 – paragraph 2
Article 47 – paragraph 2
2. Where the ultimate parent entity of an MNE group is located in a third country jurisdiction, the top-up tax due by a constituent entity located in a Member State in accordance with Article 13(2) shall be reduced to zero in the first fivesix years of the initial phase of the international activity of that MNE group notwithstanding the requirements laid down in Chapter V.
Amendment 218 #
Proposal for a directive
Article 47 – paragraph 3 – point a
Article 47 – paragraph 3 – point a
(a) it has constituent entities in no more than sixeight jurisdictions; and
Amendment 219 #
Proposal for a directive
Article 47 – paragraph 3 – point b
Article 47 – paragraph 3 – point b
(b) the sum of the net book value of the tangible assets of all the constituent entities of the MNE group other than the constituent entities located in the reference jurisdiction does not exceed EUR 750 000 000.
Amendment 220 #
Proposal for a directive
Article 47 – paragraph 4 – introductory part
Article 47 – paragraph 4 – introductory part
4. The period of fivesix fiscal years referred to in paragraphs 1 and 2 shall start from the beginning of the fiscal year in which the MNE group falls within the scope of this Directive for the first time.
Amendment 221 #
Proposal for a directive
Article 47 – paragraph 4 – subparagraph 1
Article 47 – paragraph 4 – subparagraph 1
For MNE groups that are within the scope of this Directive when it enters into force, the fivesix-year period referred to in paragraph 1 shall start on 1 January 20235.
Amendment 224 #
Proposal for a directive
Article 47 – paragraph 4 – subparagraph 2
Article 47 – paragraph 4 – subparagraph 2
For MNE groups that are within the scope of this Directive when it enters into force, the fivesix-year period referred to in paragraph 2 shall start on 1 January 20246.
Amendment 230 #
Proposal for a directive
Article 50 – paragraph 1
Article 50 – paragraph 1
1. The top-up tax due by an ultimate parent entity located in a Member State in accordance with Article 49 shall be reduced to zero in the first fivesix fiscal years, starting from the first day of the fiscal year in which the large-scale domestic group falls within the scope of this Directive for the first time.
Amendment 231 #
Proposal for a directive
Article 50 – paragraph 2
Article 50 – paragraph 2
2. For large-scale domestic groups that are in scope of this Directive when it enters into force, the fivesix-year period abovementioned shall start on 1 January 20235.
Amendment 236 #
Proposal for a directive
Article 51 a (new)
Article 51 a (new)
Article 51 a Global Implementation Review By 30 June 2023 the European Commission shall publish a report evaluating whether a sufficient number of third countries has faithfully implemented the OECD agreement. Depending on the outcome of this evaluation, the European Commission may propose amendments to this directive safeguarding the competitiveness of European businesses.
Amendment 252 #
Proposal for a directive
Article 55 – paragraph 1
Article 55 – paragraph 1
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 20224.
Amendment 256 #
Proposal for a directive
Article 55 – paragraph 3
Article 55 – paragraph 3
They shall apply those provisions from 1 January 20235.