Activities of Martin HLAVÁČEK related to 2023/0187(CNS)
Shadow reports (1)
REPORT on the proposal for a Council directive on Faster and Safer Relief of Excess Withholding Taxes
Amendments (43)
Amendment 29 #
Proposal for a directive
Recital 4
Recital 4
(4) To ensure that all EU taxpayers have access to a common, appropriate and effective proof of their residence for tax purposes, Member States should use automated procedures for the issuance of tax residence certificates in the same recognisable and acceptable digital form and with the same content. To allow for greater efficiency, the certificate should be valid at least for the whole year during which it has been issued and recognised by other Member States for that period. The eTRC should also contain a reference to applicable double taxation agreements. Member States can rescind an eTRC issued where the tax administration has proof to the contrary of the tax residence for that year. In order to allow for an efficient identification of EU companies, the certificate should include information on the European Unique Identifier (EUID).
Amendment 32 #
Proposal for a directive
Recital 6
Recital 6
(6) As the financial intermediaries most often engaged in the securities’ payment chains are large institutions as defined in the Capital Requirements Regulation (CRR)29 as well as central securities depositories providing withholding tax agent services, these entities should be obliged to request registration on the national registers of Member States established as above. Other financial intermediaries should be allowed to request registration at their discretion. Registration should be requested by the financial intermediary itself by submitting an application to the competent authority designated by the Member State, including evidence that the financial intermediary meets certain requirements. The purpose of the requirements is to verify that the requesting intermediary meets the requirements of relevant EU regulation and supervised for compliance therewith. Where the financial intermediary is established outside the EU, it is required to be subject to legislation in the third country of its residence that is comparable for the purposes of this Directive and the third country of residence is neither on Annex I of the EU list of non-cooperative jurisdictions nor on the EU list of high-risk third countries (anti-money laundering list). Compliance of a third country financial intermediary with the relevant EU requirements relates solely for the purposes set out in this Directive and has no impact on the exercising or application of any other rights and obligations under other EU legislation. Once registered, financial intermediaries should be considered “certified financial intermediaries” in the respective Member State and be subject to the relevant reporting and notification obligations under this Directive while granted the right to request application of the relief procedures set out in this Directive. The Member States that maintain a national register should also take action to remove therefrom any certified financial intermediary that so requests or no longer meets the respective requirements. Furthermore, these Member States can decide to provide for the removal from their national register of certified financial intermediaries or to deny them access to relief system if they are found to have violated their obligations a number of times. Where a Member State takes such action of removal or denial, it should inform other Member States that maintain a national register accordingly in order to allow them to assess the removal of the same certified financial intermediary from their own national register. National legislation of the Member States concerned applies to the rights and obligations of parties concerned, including for appeal, in relation to any decision taken by a Member State in connection with registration and removal from their national register. _________________ 29 Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 Text with EEA relevance (OJ L 176, 27.6.2013, p. 1–337)
Amendment 35 #
Proposal for a directive
Recital 8
Recital 8
(8) In order to render the Capital Markets Union more effective and competitive, procedures for relief of excess withholding taxes on securities’ income should be facilitated and accelerated, where adequate information has been provided by relevant certified financial intermediaries, including on the identity of the investor. The relevant certified financial intermediaries consist of all the certified financial intermediaries in the payment chain between the investor and the issuer of the securities, which might be required to also provide information on payments effected by non-certified financial intermediaries in the chain, as per the policy choice of each Member State. Taking into account the different approaches in Member States, two types of procedures are envisaged: (i) relief at source by direct application of the appropriate tax rate at the time of withholding and (ii) quick refund within a maximum of 50 days of the date of payment of the dividend or, as the case may be, of the date when the bond issuer must pay interest to the bond holder (coupon date)defined deadline. Member States should be free to introduce any of the two or a combination of both procedures, as they deem appropriate while ensuring that at least one is available for all investors, where the requirements of this Directive have been met. To ensure the proper and timely implementation of these procedures by the Member States concerned, it is appropriate to apply interest on late refunds of excess withholding taxes that are covered by this Directive and meet the conditions to benefit from these procedures assuming that the Member States responsible for issuing refunds already includes provisions for paying interest on late refunds in their domestic legislation. Where relevant requirements are not met, or the investor concerned so desires, Member States should apply their existing standard refund procedures to relieve excess withholding taxes. In any case, registered owners, in particular retail investors, and their authorized representatives, should preserve the right to reclaim excess withholding tax paid in a Member State where they provide proof of meeting the conditions set out in national law.
Amendment 37 #
Proposal for a directive
Recital 8
Recital 8
(8) In order to render the Capital Markets Union more effective and competitive, procedures for relief of excess withholding taxes on securities’ income should be facilitated and accelerated, where adequate information has been provided by relevant certified financial intermediaries, including on the identity of the investor. The relevant certified financial intermediaries consist of all the certified financial intermediaries in the payment chain between the investor and the issuer of the securities, which might be required to also provide information on payments effected by non-certified financial intermediaries in the chain, as per the policy choice of each Member State. Taking into account the different approaches in Member States, two types of procedures are envisaged: (i) relief at source by direct application of the appropriate tax rate at the time of withholding and (ii) quick refund within a maximum of 50 days of the date of payment of the dividend or, as the case may be, of the date when the bond issuer must pay interest to the bond holder (coupon date). Member States should be free to introduce any of the two or a combination of both procedures, as they deem appropriate while ensuring that at least one is available for all investors, where the requirements of this Directive have been met. To ensure the proper and timely implementation of these procedures by the Member States concerned, it is appropriate to apply interest on late refunds of excess withholding taxes that are covered by this Directive and meet the conditions to benefit from these procedures. Where relevant requirements are not met, or the investor concerned so desires, Member States should apply their existing standard refund procedures to relieve excess withholding taxes. In any case, registered owners, in particular retail investors, and their authorized representatives, should preserve the right to reclaim excess withholding tax paid in a Member State where they provide proof of meeting the conditions set out in national law. Member States may reject a refund request when any verification procedure or tax audit is initiated.
Amendment 40 #
Proposal for a directive
Recital 9
Recital 9
(9) In order to safeguard the systems for relief of excess withholding taxes, Member States maintaining a national register should also require certified financial intermediaries to verify the eligibility of investors that wish to claim a relief. In particular, certified financial intermediaries should collect the tax residence certificate of the relevant investor, and a declaration that such investor is the beneficial owner of the payment according to the legislation of the source Member State. They should also verify the applicable withholding tax rate based on the investor’s specific circumstances and indicate if they are aware of any financial arrangement involving the underlying securities that has not been settled, expired or otherwise terminated at the ex-dividend date. The due diligence requirements could be applied on an annual basis. Certified financial intermediaries should be held liable for tax revenue losses that have been incurred due to the inadequate fulfilment of these obligations, to the extent that national law of the Member State where the loss incurred so provides. In order to ensure proportionality of the burden and liability imposed on certified financial intermediaries, reduced verification obligations should apply to all relief procedures, where the risk of abuse is low and in particular where the total amount of the dividend paid to the investor for a shareholding in a company is lower than EUR 1000. Should such abuse be proven otherwise, Member States can however apply consequences under national law, including denying the systems of relief provided in this Directive, but they cannot hold certified financial intermediaries liable for absence of verification.
Amendment 42 #
Proposal for a directive
Recital 12
Recital 12
(12) The proper implementation and enforcement of the proposed rules in each Member State concerned is critical for the promotion of the CMU as a whole as well as for the protection of the tax base of Member States and should therefore be monitored by the Commission. Member States should therefore communicate to the Commission on a regular basis, statistical information as specified by means of implementing act, on the implementation and enforcement in their territory of national measures adopted pursuant to this Directive. The Commission should prepare an evaluation on the basis of the information provided by Member States and other available data to evaluate the effectiveness of the proposed new rules. In this context the Commission should consider the need to update the rules introduced by virtue of this Directive.
Amendment 49 #
Proposal for a directive
Article 2 – paragraph 2
Article 2 – paragraph 2
Amendment 51 #
Proposal for a directive
Article 3 – paragraph 1 – point 19
Article 3 – paragraph 1 – point 19
(19) ‘double tax treaty’ means an agreement or convention that provides for the elimination of double taxation of income, and where applicable, capital, in force between two (or more) countriejurisdictions.
Amendment 52 #
Proposal for a directive
Article 4 – paragraph 2 – introductory part
Article 4 – paragraph 2 – introductory part
2. Member States shall issue the eTRC based on the available information within oneseven working day from submission of a request, subject to paragraph 4. The eTRC shall comply with the technical requirements of Annex I and shall include the following information:
Amendment 53 #
Proposal for a directive
Article 4 – paragraph 2 – point a
Article 4 – paragraph 2 – point a
(a) the first and last name of the taxpayer and the date and place of birth, if the taxpayer is an individual, or its name and its European Unique Identifier number (EUID), if the taxpayer is an entity, where available
Amendment 55 #
Proposal for a directive
Article 4 – paragraph 2 – point f a (new)
Article 4 – paragraph 2 – point f a (new)
(f a) the double tax treaty
Amendment 58 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
4. If more than oneseven working day is required to verify the tax residency of a specific taxpayer, the Member State shall inform the person requesting the certificate of the additional time needed and the reasons for the delay.
Amendment 61 #
Proposal for a directive
Article 4 – paragraph 5
Article 4 – paragraph 5
5. Member States shall recognise an eTRC issued by another Member State as adequate proof of residence of a taxpayer in that other Member State in accordance with paragraph 3. In any case, Member States may prove the residence for tax purposes in their jurisdictions.
Amendment 66 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Member States that levy a withholding tax on dividends from publicly traded shares paid to registered owners resident for tax purposes outside that Member State and that provide relief of excess withholding tax shallmay establish a national register of certified financial intermediaries. Member States may opt to use this national register also in relation to relief of excess withholding tax on interest from publicly traded bonds, if applicable.
Amendment 78 #
Proposal for a directive
Article 7 – paragraph 2 a (new)
Article 7 – paragraph 2 a (new)
2 a. Member States shall inform all other Member States about rejections of registration as soon as possible, according to Council Directive 2011/16/EU on administrative cooperation in the field of taxation.
Amendment 80 #
Proposal for a directive
Article 8 – paragraph 3
Article 8 – paragraph 3
3. The Member State that removes a certified financial intermediary from its national register shall inform, according to Council Directive 2011/16/EU on administrative cooperation in the field of taxation, without delay all other Member States that maintain a national register according to Article 5.
Amendment 84 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Member States shall take the necessary measures to require certified financial intermediaries in their national register to report to the competent authority the information referred to in Annex II as soon as possiblewithin a maximum of 20 calendar days after the record date, unless a settlement instruction in respect of any part of a transaction is pending on the record date, in which case the reporting for that transaction shall take place as soon as possible after the settlement. If 20 days after the record date, settlement is still pending for any part of the transaction, certified financial intermediaries shall report within the next 5 calendar days indicating the part for which settlement is pending.
Amendment 89 #
Proposal for a directive
Article 9 – paragraph 5
Article 9 – paragraph 5
5. Member States shall require certified financial intermediaries in their national register to keep the documentation supporting the information reported for fiveeight years and to provide access to any other information, as well as access to their premises for the purpose of audit and shall require certified financial intermediaries to delete or anonymise any personal data included in such documentation as soon as the audit has been completed and at the latest fiveeight years after reporting.
Amendment 94 #
Proposal for a directive
Article 10 – paragraph 2 – introductory part
Article 10 – paragraph 2 – introductory part
2. Notwithstanding paragraph 1, Member States shallmay not provide relief under the systems as provided for under Articles 12 and 13 for a request, where:
Amendment 95 #
Proposal for a directive
Article 10 – paragraph 2 – point a
Article 10 – paragraph 2 – point a
(a) the dividend has been paid on a publicly traded share that the registered owner acquired within a period of twofive days before the ex-dividend date;
Amendment 96 #
Proposal for a directive
Article 10 – paragraph 2 – point b a (new)
Article 10 – paragraph 2 – point b a (new)
(b a) the amount of the relief requested deriving from each payment exceeds EUR 5000.
Amendment 98 #
Proposal for a directive
Article 10 – paragraph 3 – point b
Article 10 – paragraph 3 – point b
(b) an exemption or a reduced rate of the withholding tax is claimed.
Amendment 99 #
Proposal for a directive
Article 10 – paragraph 3 a (new)
Article 10 – paragraph 3 a (new)
3 a. The control powers of Member States, pursuant to their national legislation, on the taxable income to which the relief was applied, shall not be limited.
Amendment 100 #
Proposal for a directive
Article 11 – paragraph 1 – introductory part
Article 11 – paragraph 1 – introductory part
1. Member States shall take the necessary measures to ensure that the certified financial intermediary requesting relief under Article 12 and/or 13 on behalf of a registered owner obtains from such registered owner a declaration that the registered owner:
Amendment 101 #
Proposal for a directive
Article 11 – paragraph 1 – point a
Article 11 – paragraph 1 – point a
(a) is the beneficial owner of the dividend or interest as defined under the national legislation of the source Member State or a double tax treaty; and
Amendment 102 #
Proposal for a directive
Article 11 – paragraph 2 – introductory part
Article 11 – paragraph 2 – introductory part
2. Member States shall take the necessary measures to ensure certified financial intermediaries requesting relief under Article 12 and/or 13 on behalf of a registered owner to verify:
Amendment 107 #
Proposal for a directive
Article 11 – paragraph 2 a (new)
Article 11 – paragraph 2 a (new)
2 a. Member States may allow to obtain the declaration according to paragraph 1 and to carry out the verifications according to paragraph 2 on an annual basis.
Amendment 110 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. Member States may allow certified financial intermediaries maintaining a registered owner’s investment account to request a quick refund of the excess withholding tax, on behalf of such registered owner in accordance with Article 10 if the information referred to in paragraph 3 of this Article is provided as soon as possible after the payment date and at the latest within 25 calendar days from the date of payment of the dividend or interest.
Amendment 113 #
Proposal for a directive
Article 13 – paragraph 2
Article 13 – paragraph 2
2. Member States shall process a refund request made in accordance with paragraph 1 within 2540 calendar days from the date of such request or from the date reporting obligations under this Directive have been met by all relevant certified financial intermediaries, whichever is the latest. Member States shall apply interest in accordance with Article 14 on the amount of such refund for each day of delay after the 2540th day.
Amendment 118 #
Proposal for a directive
Article 13 – paragraph 3 a (new)
Article 13 – paragraph 3 a (new)
3 a. Member States may reject a refund request if any verification procedure or tax audit, based on risk assessment criteria and according to the national legislation, is iniatiated.
Amendment 119 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
Member States shall, where national legislation includes such provisions, apply interest in accordance with Article 13(2) at a rate equal to the interest or equivalent charge applied by the Member State to late payments of income tax by registered owners, or, if the national legislation of the Member States does not include such provision, at the Euro short-term rate plus 50 basis points or the equivalent interest rate used by their Central Bank plus 50 basis points, if they are not part of the European Exchange Rate Mechanism.
Amendment 133 #
Proposal for a directive
Article 19 – paragraph 1 a (new)
Article 19 – paragraph 1 a (new)
1 a. In the evaluation report, the Commission shall: (a) examine whether Chapter III should be mandatory applied to all Member States; (b) examine whether the relief at source system should be applied in all Member States, and introduce further measures to facilite such a system for SMEs.
Amendment 142 #
Proposal for a directive
Article 19 – paragraph 2
Article 19 – paragraph 2
2. Member States shall communicate to the Commission relevant statistical information for the evaluation of the Directive in improving withholding tax relief procedures to reduce double taxation as well as combat tax abuse, in accordance with paragraph 3.
Amendment 144 #
Proposal for a directive
Article 19 – paragraph 3
Article 19 – paragraph 3
3. The Commission shall, by means of implementing acts, specify the statistical information to be provided by Member States for the purposes of evaluation and the format and the conditions of communication of that information.
Amendment 148 #
Proposal for a directive
Article 20 – paragraph 3
Article 20 – paragraph 3
3. Information, including personal data, processed in accordance with this Directive shall be retained only as long afor no longer than is necessary to achieve the purposes of this Directive, and in any case in accordance with each data controller’s domestic rules on statute of limitations, but in any case no longer than 10 years.
Amendment 150 #
Proposal for a directive
Article 22 – paragraph 1 – subparagraph 1
Article 22 – paragraph 1 – subparagraph 1
Member States shall adopt and publish, by 31 December 20267 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 152 #
Proposal for a directive
Article 22 – paragraph 1 – subparagraph 2
Article 22 – paragraph 1 – subparagraph 2
They shall apply those provisions from 1 January 20278.
Amendment 154 #
Proposal for a directive
Annex II – table 1 – column 2 – row 6
Annex II – table 1 – column 2 – row 6
Tax identification number, if available, and email address
Amendment 155 #
Proposal for a directive
Annex II – table 1 – column 2 – row 9
Annex II – table 1 – column 2 – row 9
Name, TIN, if available, date of birth, address
Amendment 156 #
Proposal for a directive
Annex II – table 1 – column 2 – row 10
Annex II – table 1 – column 2 – row 10
Name, LEI, TIN, address, EUIDif available, address, EUID, where applicable
Amendment 157 #
Name, TIN, if available, date of birth, address
Amendment 158 #
Proposal for a directive
Annex II – table 1 – column 2 – row 15
Annex II – table 1 – column 2 – row 15
Name, LEI, TIN, address, EUIDif available, address, EUID, where applicable
Amendment 159 #
Proposal for a directive
Annex II – table 1 – column 2 – row 18
Annex II – table 1 – column 2 – row 18
Name, LEI or TIN or EUID, if available, or EUID, where applicable, official address