18 Amendments of Markus FERBER related to 2021/0434(CNS)
Amendment 59 #
Proposal for a directive
Recital 11
Recital 11
(11) As the objective of this Directive is to prevent tax avoidance and evasion that are likely to flourish through actions by undertakings without minimal substance, and in order to ensure tax certainty and enhance the proper functioning of the internal market, it is paramount to provide for a possibility of exemptions for undertakings which meet the gateway criterion but yet whose interposition has no actual advantageous impact on the overall tax position of the undertaking’s group or of the beneficial owner(s). For that reason, such undertakings should be entitled to request the administration of the Member State, where they reside for tax purposes, to issue a decision which exempts them from complying with the proposed rules altogether and upfront. Such exemption should also be limited in time, to allow the administration to verify on a regular basis that the factual and legal circumstances justifying the exemption decision remain valid. At the same time a potential extended duration of such decision will allow to limit the resources allocated to cases that should be exempt from the scope of the Directive. A Member State administration may decide to award the exemption without requiring the undertaking to perform the substance test provided that it is sufficiently confident that the award of said exemption is justified.
Amendment 69 #
Proposal for a directive
Recital 14 a (new)
Recital 14 a (new)
(14a) In order not to overburden Member States' tax authorities, it is essential to limit the exchange of information to the set of information that is strictly necessary to detect tax fraud.
Amendment 72 #
Proposal for a directive
Recital 16
Recital 16
(16) In order to improve effectiveness, Member States should lay down penalties against the violation of the national rules that transpose this Directive. Such penalties should be effective, proportionate and dissuasive. To ensure tax certainty and a minimum level of coordination across all Member States, it is necessary to fix a minimum monetary penalty, also taking into account the situation of each specific undertaking. The envisaged rules rely on self-assessment by the undertakings as regards whether or not they meet the gateway criteria. To achieve effectiveness of the provisions, incentivising adequate compliance across the Union, and taking into account that a shell undertaking in one Member State may be used to erode the tax base of another Member State, it is important that any Member State has the right to request another Member State to conduct tax audits of undertakings at risk for not fulfilling minimum substance as defined in this Directive. Accordingly, to reinforce effectiveness, it is essential that the requested Member State has an obligation to carry out such audit and to share information on the outcome, even where there is no finding of ‘shell’ entity. Joint audits pool expertise allow for a more thorough examination determination of the case at hand and contribute to a higher acceptance and ownership of the audit results. Council Directive (EU) 2021/514 established the framework for effective joint audits. Member States should make use of the option of joint audits, where appropriate.
Amendment 95 #
Proposal for a directive
Article 6 – paragraph 1 – point c – introductory part
Article 6 – paragraph 1 – point c – introductory part
(c) in the preceding two tax years, the undertaking outsourced the administration of day-to-day operations and the decision- making on significant functions to an undertaking outside its own jurisdiction.
Amendment 102 #
Proposal for a directive
Article 6 – paragraph 1 – subparagraph 3a (new)
Article 6 – paragraph 1 – subparagraph 3a (new)
For the purposes of this Article, the first two tax year period shall start from 1 January 2024.
Amendment 109 #
Proposal for a directive
Article 6 – paragraph 2 – point d
Article 6 – paragraph 2 – point d
(d) undertakings with holding activities that are resident for tax purposes in the same Member State as the majority of the undertaking’s shareholder(s) or the ultimate parent entity, as defined in Section I, point 7, of Annex III to Directive 2011/16/EU;
Amendment 122 #
Proposal for a directive
Article 7 – paragraph 1 – introductory part
Article 7 – paragraph 1 – introductory part
1. Member States shall require that undertakings meeting the criteria laid down in Article 6(1) declare in their annual tax return, for each tax year, whether theyif they do not meet the following indicators of minimum substance:
Amendment 131 #
Proposal for a directive
Article 7 – paragraph 1 – point c – point i – point 4
Article 7 – paragraph 1 – point c – point i – point 4
Amendment 174 #
Proposal for a directive
Article 13 – paragraph 1 – point 2
Article 13 – paragraph 1 – point 2
Amendment 177 #
Proposal for a directive
Article 13 – paragraph 1 – point 2
Article 13 – paragraph 1 – point 2
Directive 2011/16/EU
Article 8ad – paragraph 9
Article 8ad – paragraph 9
Amendment 182 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
Member States shall ensure that those penalties include an administrative pecuniary sanction of at least 2,5% of the undertaking’s turnoverrevenue in the relevant tax year, if the undertaking that is required to report pursuant to Article 6 does not comply with such requirement for a tax year within the prescribed deadline or makes a false declaration in the tax return under Article 7.
Amendment 185 #
Proposal for a directive
Article 15 – title
Article 15 – title
Request for joint tax audits
Amendment 186 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
Where the competent authority of one Member State has reason to believe that an undertaking which is resident for tax purposes in another Member State has not met its obligations under this Directive, the former Member State may request the competent authority of the latter to conduct a joint tax audit of the undertaking following the procedures laid out in Article 12a of Council Directive (EU) 2021/514 of 22 March 2021 amending Directive 2011/16/EU on administrative cooperation in the field of taxation.
Amendment 190 #
Proposal for a directive
Article 15 – paragraph 2
Article 15 – paragraph 2
Amendment 191 #
Proposal for a directive
Article 16 – paragraph 1 – point f
Article 16 – paragraph 1 – point f
(f) number of audits to undertakings that meet the conditions laid down in Article 6(1), broken down into joint audits and regular audits,
Amendment 195 #
Proposal for a directive
Article 17 – paragraph 1
Article 17 – paragraph 1
1. By 31 December 2028, the Commission shall present a report to the European Parliament and the Council on the implementation of this Directive. If appropriate, the report shall be accompanied by a legislative proposal amending this Directive.
Amendment 199 #
Proposal for a directive
Article 18 – paragraph 1 – introductory part
Article 18 – paragraph 1 – introductory part
1. Member States shall adopt and publish, by [30 June1 December 2023] 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 200 #
Proposal for a directive
Article 18 – paragraph 1 – subparagraph 1
Article 18 – paragraph 1 – subparagraph 1
They shall apply those provisions from [1 January 20245].