11 Amendments of Martin HLAVÁČEK related to 2023/0322(CNS)
Amendment 56 #
Proposal for a directive
Recital 4
Recital 4
(4) This Directive lays down rules to ensure a common application of the arm’s length principle across the Union with the aim of increasing tax certainty and, reducing occurrences of double taxation as well as double non taxation, reducing tax compliance costs especially for taxpayers that operate cross-border within the Union and avoiding tax abuse.
Amendment 64 #
Proposal for a directive
Recital 6
Recital 6
(6) To ensure the mitigation of double taxation, Member States should have adequate mechanisms in place to enable them, when a primary adjustment is made in another Member State or third country jurisdiction, to make a corresponding adjustment. In particular, Member States should have the possibility to perform corresponding adjustments and should not limit the granting of such an adjustment in the context of mutual agreement procedures (MAPs) but also as a result of: (i) a “fast-track” procedure to be concluded in 180 days without the need to open a MAP when there is no doubt that the primary adjustment is well founded; or (ii) joint audits or other forms of international cooperation such as multilateral risk assessment programs like the European Trust and Cooperation Approach (ETACA) and the International Compliance Assurance Programme (ICAP). To this aim, Member States should use all the procedures and arrangements provided by the Directive on administrative cooperation (DAC), especially DAC 3 and 6 that cover the exchange of information related to Advance Price Agreements and the exchange of information on reportable cross-border arrangements which have been reported by intermediaries or by the relevant taxpayer.
Amendment 93 #
Proposal for a directive
Recital 17
Recital 17
(17) In order to evaluate the effectiveness and the impact of the new rules set out in this Directive, especially its articulation with the latest OECD guidelines, the Commission should prepare an evaluation on the basis of the information provided by Member States and other available data., and if appropriate, accompanied by a legislative proposal
Amendment 103 #
Proposal for a directive
Article 3 – paragraph 1 – point 1
Article 3 – paragraph 1 – point 1
(1) ‘arm’s length principle’ means the international standard pursuant to Article 9 of the OECD Model Tax Convention that prescribes that associated enterprises must transact with each other as if they were independent third parties. In other words, the transactions between two associated enterprises should reflect the outcome that would have been achieved if the parties were not related i.e. if the parties were independent of each other and the outcome (price or margins) was determined by (open) market forces.
Amendment 106 #
Proposal for a directive
Article 3 – paragraph 1 – point 4
Article 3 – paragraph 1 – point 4
(4) ‘permanent establishment’ means a fixed place of business, as defined under the relevant bilateral convention on the avoidance of double taxation or, in absence thereof, in national law in line with Article 5 of the OECD Model Tax Convention;
Amendment 114 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
1. Member States shall ensure that, where an enterprise engages in one or more commercial or financial cross-border transacrelations with an associated enterprise, such enterprise determines the amount of its taxable profits in a manner that is consistent with the arm’s length principle.
Amendment 131 #
Proposal for a directive
Article 6 – paragraph 3 – point b
Article 6 – paragraph 3 – point b
(b) Member States shall declare the request admissible within 340 days by virtue of a notification to the taxpayer if all the information provided in paragraph 3, point (a), has been submitted. In the same timeframe, Member States shall notify the taxpayer of the lack of any necessary information and grant at least 340 days to provide it. If the taxpayer does not provide the requested information within the assigned deadline, the request may be rejected as inadmissible.
Amendment 135 #
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 18200 days from the receipt of the taxpayer’s request with a reasoned act of acceptance or rejection.
Amendment 137 #
Proposal for a directive
Article 6 – paragraph 3 a (new)
Article 6 – paragraph 3 a (new)
3 a. For the purpose of paragraphs 1, 2 and 3, Member States should use all the available procedures and arrangements provided by the Directive on Administrative Cooperation (DAC).
Amendment 153 #
Proposal for a directive
Article 11 – paragraph 3 – point a
Article 11 – paragraph 3 – point a
(a) none of the differences (if any) between the transactions being compared or between the enterprises undertaking those transactions could materially affect the price or margin in the open market;
Amendment 186 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
1. TEvery 5 years, the Commission shall examine and evaluate the application of this Directive every 5 years and submit a report on its evaluation to the European Parliament and to the Council, the impact as well as the interplay of this Directive with the latest OECD guidelines and submit a report on its evaluation to the European Parliament and to the Council, and if appropriate, accompanied by a legislative proposal from the European Commission. The first report shall be submitted by 31 December 2031.