8 Amendments of Gilles BOYER related to 2023/0322(CNS)
Amendment 55 #
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. 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 for businesses operating across borders, is likely to cause economic distortions and inefficiencies and has a negative impact on cross-border investment and growth. Furthermore, the European Commission should make sure this Directive does not create any inconsistency with the latest OECD guidelines, including the Amount B of Pillar one aiming at simplifying existing transfer pricing rules.
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 72 #
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 arshall be 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 Tthe latest OECD Transfer Pricing Guidelines to avoid any inconsistency between this Directive and the rules agreed at the OECD, including the Amount B of Pillar one aiming at simplifying existing transfer Ppricing Guidelines’)rules . 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_e n.pdf
Amendment 82 #
Proposal for a directive
Recital 15
Recital 15
(15) To avoid any inconsistency, the rules provided by this Directive should be applied in in a manner consistent with the latest OECD Transfer Pricing Guidelines, especially with the upcoming Amount B of the Pillar one being negotiated in the framework of the OECD/G20 Inclusive Framework on Base Erosion and Profit Shifting.
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 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 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.