[ParlTrack]

Proposal for a directive – amending act
Article 1 – point 1

Directive 2003/48/EC
Article 1 – paragraph 2

Article 1 (2) is replaced by the following: “2. Member States shall take the necessary measures to ensure that the tasks necessary for the implementation of this Directive are carried out by economic operators and paying agents established within their territory, irrespective of the place of establishment of the debtor of the debt claim, or the issuer of the security, producing the interest payment.”

2009/02/19
Committee: ECON

Bilyana Ilieva RAEVA

Proposal for a directive – amending act
Article 1 – point 2 – point a – subpoint i

Directive 2003/48/EC
Article 2 – paragraph 1

The introductory phrase is replaced by the following: For the purposes of this Directive, ~~and without prejudice to Article 4(2),~~ "beneficial owner" means any individual who receives or is supposed to have perceived an interest payment or any individual for whom such a payment is secured or supposed to be secured, unless he provides evidence that it was not received or secured for his own benefit, that is to say that:

2009/02/19
Committee: ECON

Bilyana Ilieva RAEVA

Proposal for a directive – amending act
Article 1 – point 2 – point a – subpoint ii

Directive 2003/48/EC
Article 2 – paragraph 1

Point (b) is replaced by the following: “he acts on behalf of an entity or a legal arrangement ~~and discloses the name, the legal form and the address of the place of effective management of the entity or,~~referred to in article 4, paragraph 2 and in theat case of a legal arrangement, the name and the permanent address of the person who primarily holds legal title and primarily manages its property and income, to the economic operator making or securing the interest pay, the economic operator is supposed to pay or secure the interest payment to the entity or legal arrangement, or”

2009/02/19
Committee: ECON

Bilyana Ilieva RAEVA

Proposal for a directive – amending act
Article 1 – point 2 – point a – subpoint ii a (new)

Directive 2003/48/EC
Article 2 – paragraph 1 – point b a (new)

iia) The following point ba) is added: “ ba) he acts on behalf of an entity or a legal arrangement not referred to in article 4, paragraph 2, or on behalf of an undertaking or collective investment fund referred to under points ( c) or (d) of the first paragraph of article 6, or”

2009/02/19
Committee: ECON

Bilyana Ilieva RAEVA

Proposal for a directive – amending act
Article 1 – point 3

Directive 2003/48/EC
Article 3

Identity and residence of beneficial owners 1. Each Member State shall, within its territory, adopt and ensure the application of the procedures necessary to allow the paying agent to identify the beneficial owners and their residence for the purposes of Articles 8 to 12. Such procedures shall comply with the minimum standards established in paragraphs 2 and 3. 2. The paying agent shall establish the identity of the beneficial owner on the basis of minimum standards which vary according to when relations between the paying agent and the recipient of the interest are entered into, as follows: (a) for contractual relations entered into before 1 January 2004, the paying agent shall establish the identity of the beneficial owner, consisting of his name and address, by using the information at its disposal, in particular pursuant to the regulations in force in its State of establishment and to Directive 2005/60/EC. (b) for contractual relations entered into, or transactions carried out in the absence of contractual relations, on or after 1 January 2004, the paying agent shall establish the identity of the beneficial owner, consisting of the name, address, date and place of birth and, if the beneficial owner has his address or otherwise proves to be resident for tax purposes in a Member State listed in Annex II, the tax identification number or equivalent allocated by that Member State. The details referred to in point (b) of the first subparagraph shall be established on the basis of the passport or of the official identity card or other official document listed in Annex II presented by the beneficial owner. Any such details which do not appear on that passport or on that official identity card or official document shall be established on the basis of any other official documentary proof of identity presented by the beneficial owner and issued by a public authority of the country where he has his address or otherwise proves to be resident for tax purposes. 3. Where the beneficial owner voluntarily presents a tax residence certificate issued by the competent authority of a country within the last three years before the payment date, his residence shall be considered to be situated in that country. Failing this, his residence shall be considered to be situated in the country where he has his permanent address. The paying agent shall establish the permanent address of the beneficial owner on the basis of the following minimum standards : (a) for contractual relations entered into before 1 January 2004, the paying agent shall establish the current permanent address of the beneficial owner by using the best information at its disposal at a payment date, in particular pursuant to the regulations in force in its State of establishment and to Directive 2005/60/EC ; (b) for contractual relations entered into, or transactions carried out in the absence of contractual relations, on or after 1 January 2004, the paying agent shall establish the current permanent address of the beneficial owner on the basis of the address resulting from the identification procedures set out in point (b) of paragraph 2 to be updated on the basis of the most recent documentation that is available to the paying agent. This information shall be updated at the latest when the passport or official identity card or other official documentary proof of identity presented by the beneficial owner expires. For contractual relations entered into, or transactions carried out in the absence of contractual relations, on or after 1 January 2004, by individuals presenting a passport or official documentary proof of identity issued by a Member State who declare themselves to be resident in a third country, residence shall be established by means of a tax residence certificate issued within the last three years before the payment date by the competent authority of the third country in which the individual claims to be resident. Failing the presentation of such a certificate, the Member State which issued the passport or other official identity document shall be considered to be the country of residence. For individuals about whom the paying agent has official documentation at its disposal proving that they have their residence for tax purposes in a country different from that of their permanent address because of the privileges linked to their diplomatic status or to other internationally agreed rules, residence shall be established by means of such official documentation available to the paying agent"Article 3 "Article 3 Identity and residence of beneficial owners 1. Each Member State shall, within its territory, adopt and ensure the application of the procedures necessary to allow the paying agent to identify the beneficial owners and their residence for the purposes of Articles 8 to 12. Such procedures shall comply with the minimum standards established in paragraphs 2 and 3. 2. The paying agent shall establish the identity of the beneficial owner on the basis of minimum standards which vary according to when relations between the paying agent and the recipient of the interest are entered into: (a) for contractual relations entered into before 1 January 2004, the paying agent shall establish the identity of the beneficial owner, consisting of his name and address, by using the information at its disposal, in particular pursuant to the regulations in force in its State of establishment and to Directive 2005/60/EC. (b) for contractual relations entered into, or transactions carried out in the absence of contractual relations, on or after 1 January 2004, the paying agent shall establish the identity of the beneficial owner, consisting of the name, address, date and place of birth and the tax identification number or equivalent allocated by that Member State of residence when the beneficial owner identifies himself via a document listed in annex II. The name, address, the date and place of birth shall be established on the basis of a passport or of an official identity card or other official document listed in Annex II presented by the beneficial owner. Any such details which do not appear on a passport or on an official identity card or any other official document shall be established on the basis of any other official documentary proof of identity presented by the beneficial owner and issued by a public authority. 3. Where the beneficial owner voluntarily presents a tax residence certificate issued by the competent authority of a country within the last three years before the payment date, his residence shall be considered to be situated in that country. Failing this, his residence shall be considered to be situated in the country where he has his permanent address.

2009/02/19
Committee: ECON

Bilyana Ilieva RAEVA

Proposal for a directive – amending act
Article 1 – point 3

Directive 2003/48/EC
Article 4 – paragraph 1

Article 4 Article 4 Paying agents Paying agents 1. An economic operator who makes an interest payment as defined in Article 6(1) to, or secures such a payment for, the immediate benefit of the beneficial owner shall be considered to be a paying agent for the purposes of this Directive. A payment made or secured for the immediate benefit of anone or several entityies or legal arrangements listed in Annex I shall be deemed to be made or secured for the immediate benefit of the beneficial owner, as defined in Article 3(6) of Directive 2005/60/EC, of the entity or legal arrangement. For the purposes of this paragraph, it is irrelevant whether the economic operator concerned is the debtor or issuer of the debt claim or security which produces the income or the economic operator charged by the debtor or issuer or by the beneficial owner with paying the income or securing the payment of the income. Member States shall take appropriate measures to ensure that there is no overlap of paying agent responsibilities in respect of the same interest payment. An economic operator established in a Member State shall also be considered to be a paying agent for the purposes of this Directive where the following conditions are met : (a) it makes an interest payment as defined in Article 6(1) to, or secures such a payment for, another economic operator established outside the territory referred to in Article 7 and outside the territorial scope of application of the agreements and arrangements referred to in Article 17(2), and (b) the first economic operator has evidence that the second economic operator will pay the income to, or secure such a payment for the immediate benefit of, a beneficial owner who is an individual known by the first economic operator to be a resident of another Member State, having regard to Article 3. Where the conditions referred to in points (a) and (b) are met, a payment made or secured by the first economic operator for the immediate benefit of the second economic operator shall be deemed to be made or secured by the first economic operator for the immediate benefit of the beneficial owner referred to in point (b).

2009/02/19
Committee: ECON

Bilyana Ilieva RAEVA

Proposal for a directive – amending act
Article 1 – point 3

Directive 2003/48/EC
Article 4 – paragraph 2

2. An entity or legal arrangement wh~~ich is not taxed on its income or on the part of its income arising to its non-resident participants, including on any interest payment, under~~ose revenues are not taxed according to the general rules ofor direct taxation applicable in the Member State in which the entity or legal arrangement has its place of effective management, shall be considered a paying agent upon receipt of an interest payment or upon securing of such payment. For the purpose of the first subparagraph a legal arrangement, for itself or for its members, shall be considered a paying agent upon receipt of an interest payment or upon securing of such payment. The main place of management of an entity is supposed to be the place of its head office. A legal arrangement, such as a trust, shall be considered to have its place of effective management in the country where the person who primarily holds legal title ~~and primarily manages its property and income~~has his or its permanent address. When several persons hold legal title and one of them has his ~~or its~~ permanent address in a Member State, the legal arrangement is supposed to have its main place of management in this Member State. The payment received or secured by the entity or legal arrangement shall be regarded as having been made directly to, or secured for the immediate benefit of, ~~any individual who is legally en~~the beneficial owner(s) (in the meaning of artitcle~~d to the assets or the income~~ 3, paragraph 6 of Directive 2005/60/EC of theat entity or legal arrangement, or, in the absence of any such ~~individual~~person, as having been made directly to, or secured for the immediate benefit of, any individual ~~known by the persons in charge of administering the entity or legal arrangement as having~~that has directly or indirectly contributed to the assets of the entity or legal arrangement concerned. Those individuals shall then be treated as beneficial owners of the payment in accordance with Articles 2 and 3. This paragraph shall not apply if the entity or legal arrangement falls into one of the following cases: (a) it is an undertaking for collective investment or other collective investment fund or scheme ~~whose income is covered by points (c) and (d) of Article 6(1); (b) it serves the management of the assets of~~; (b) it is a pension fund or an insurance business; (c) it is acknowledged under the procedures applicable in the Member State where it is resident as serving exclusively charit~~able~~y, cultural or general interest purposes; (d) it constitutes a ~~shared beneficial~~joint ownership for which the economic operator making or securing the payment has established the identity and residence of all the beneficial owners in accordance with Article 3 ~~and theref~~when the economic operatore acts itself as paying agent in accordance with paragraph 1 of this Article. The categories of entities and legal arrangements which, depending on the Member State where they have their place of effective management, shall in all cases other than those referred to in points (a) to (d) be considered a paying agent upon making an interest payment, or upon securing of such payment, are set out in Annex III. Any economic operator making an interest payment to, or securing an interest payment for, an entity or legal arrangement included in the list set out in Annex III shall communicate to the competent authority of its Member State of establishment the name and place of effective management of the entity, or in the case of a legal arrangement, the name and the permanent address of the person who primarily holds legal title and primarily manages the property and income of the legal arrangement, and the total amount of interest paid to, or secured for, the entity or legal arrangement. Where the place of effective management of the entity or legal arrangement is located in another Member State, the competent authority shall pass this information on to the competent authority of that other Member State.

2009/02/19
Committee: ECON

Bilyana Ilieva RAEVA

Proposal for a directive – amending act
Article 1 – point 3

Directive 2003/48/EC
Article 4 – paragraph 3 – first subparagraph

3. Those entities and legal arrangements referred to in paragraph 2 ~~to whose assets or income no beneficial owner is immediately entitled at the moment of receipt of an interest payment~~ shall have the option of being treated for the purposes of this Directive as an undertaking for collective investment or other collective investment fund or scheme as referred to in point (a) of paragraph 2.

2009/02/19
Committee: ECON

Bilyana Ilieva RAEVA

Proposal for a directive – amending act
Article 1 – point 5 a (new)

Directive 2003/48/EC
Article 10 – paragraph 2 – first sentence

(5a) Article 10, paragraph 2, first sentence is amended as follows: “2. The transitional period shall end at the end of the first full fiscal year following the later of the following dates if by that date it can be demonstrated empirically that effective taxation is better achieved by automatic exchange of information in accordance with chapter II than by the withholding tax referred to in the present chapter: (…)”

2009/02/19
Committee: ECON

Bilyana Ilieva RAEVA

Proposal for a directive – amending act
Article 1 – point 10

Directive 2003/48/EC
Article 18

~~The first sentence of~~ Article 18 is replaced by the following: “The Commission shall report to the Council every three years on the operation of this Directive on the basis of the statistics listed in Annex V, which shall be provided by each Member State to the Commission. Furthermore, by 31st December 2010, the Commission shall undertake a comparative study of the systems of exchange of information and the withholding tax analysing structural advantages and weaknesses regarding the effective taxation of savings. On the basis of this study and these reports, the Commission shall, where appropriate, propose to the Council any amendments to the directive that prove necessary in order to ensure effective taxation of savings income and to remove undesirable distortions of competition.”

2009/02/19
Committee: ECON

Bilyana Ilieva RAEVA

Proposal for a directive – amending act
Annex – point 2

Directive 2003/48/EC
Annex I

‘ANNEX I List of legal forms of entities and legal arrangements to which Article 2(3) applies because of the presence within the territory of specific countries or jurisdictions of their place of effective management 1. Entities and legal arrangements whose place of effective management is in a country or jurisdiction outside the territorial scope of the Directive as defined in Article 7 and which is different from those listed in Article 17(2): Antigua and Barbuda International business company The Bahamas Trust Foundation International business company Bahrain Financial trust Barbados Trust Belize Trust International business company Bermuda Trust Brunei Trust International business company International trust International Limited Partnership Cook Islands Trust International trust International company International partnership Costa Rica Trust Djibouti Exempt company (Foreign) trust Dominica Trust International business company Fiji Trust French Polynesia Société (Company) Société de personnes (Partnership) Société en participation (Joint venture) (Foreign) trust Guam Company Sole proprietorship Partnership (Foreign) trust Guatemala Trust Fundación (Foundation) Hong Kong Trust Kiribati Trust Labuan (Malaysia) Offshore company Malaysian offshore bank, Offshore limited partnership Offshore trust Lebanon Companies benefiting from the Offshore company regime Macao Trust Fundação (Foundation) Maldives All the companies, partnership and Foreign trust Northern Marianas Islands Foreign sales corporation Offshore banking corporation (Foreign) trust Marshall Islands Trust Mauritius Trust Global business company cat. 1 and 2 Micronesia Company Partnership (Foreign) trust Nauru Trusts/nominee company Company Partnership Sole proprietorship Foreign will Foreign estate Other form of business negotiated with the Government New Caledonia Société (Company) Société civile (Civil company) Société de personnes (Partnership) Joint venture Estate of deceased person (Foreign) trust Niue Trust International business company Panama Fideicomiso (Trust) Fundación de interés privado (Foundation) Palau Company Partnership Sole proprietorship Representative office Credit union (financial cooperative) Cooperative (Foreign) trust Philippines Trust Puerto Rico Estate Trust International banking entity Saint Kitts and Nevis Trust Foundation Exempt company Saint Lucia Trust Saint Vincent and the Grenadine Trust Samoa Trust International trust International company Offshore bank Offshore insurance company International partnership Limited partnership Seychelles Trust International business company Singapore Trust Solomon Islands Company Partnership Trust South Africa Trust Tonga Trust Tuvalu Trust Provident fund United Arab Emirates Trust US Virgin Islands Trust Exempt company Uruguay Trust Vanuatu Trust Exempt company International company 2. Entities and legal arrangements whose place of effective management is in a country or jurisdiction listed in Article 17(2), to which Article 2(3) applies pending the adoption by the country or jurisdiction concerned of provisions equivalent to those of Article 4(2): Andorra Trust Anguilla Trust Aruba Stichting (Foundation) Companies benefiting from the offshore company regime British Virgin Islands Trust International business company Cayman Islands Trust Exempt company Guernsey Trust Zero tax company Isle of Man Trust Jersey Trust Liechtenstein Anstalt (Trust) Stiftung (Foundation) Monaco Trust Fondation (Foundation) Montserrat Trust Netherlands Antilles Trust Stichting (Foundation) San Marino Trust Fondazione (Foundation) Switzerland Trust Foundation Turks and Caicos Exempted company Limited partnership Trust ‘ANNEX I 1. The legal forms of entities and legal arrangements to which Article 2(3) applies shall include the following: • Limited liability companies whether limited by shares, guarantee or some other mechanism; • Limited liability corporations whether limited by shares, guarantee or some other mechanism; • International companies or corporations; • International business companies or corporations; • Exempt companies or corporations; • Protected cell companies or corporations; • Incorporated cell companies or corporations; • International banks, including corporations of similar name; • Offshore banks, including corporations of similar name; • Insurance companies or corporations; • Reinsurance companies or corporations; • Co-operatives; • Credit unions; • Partnerships of all forms including (without limitation) general partnerships, limited partnerships, limited liability partnerships, international partnerships and international business partnerships; • Joint ventures; • Trusts; • Settlements; • Foundations; • Estates of deceased persons; • Funds of all forms; • Branches of any of the entities and arrangements listed here; • Representative offices of any of the entities and arrangements listed here; • Permanent establishments of any of the entities and arrangements listed here; • Multiform Foundation, however described. 2. The specific countries or jurisdictions outside the territorial scope of the Directive as defined in Article 7 and which is different from those listed in Article 17(2) in which Article 2(3) shall apply with regard to the legal forms of entities and legal arrangements referred to in Part 1 of this Annex if their place of effective management is located therein includes: • Anjouan • Antigua and Barbuda • The Bahamas • Bahrain • Barbados • Belize • Bermuda • Brunei • Cook Islands • Costa Rica • Djibouti • Dominica • Dubai • Fiji • French Polynesia • Ghana • Grenada • Guam • Guatemala • Hong Kong • Kiribati • Labuan (Malaysia) • Lebanon • Liberia • Macao • Macedonia • Maldives • Montenegro • Northern Marianas Islands • Marshall Islands • Mauritius • Micronesia • Nauru • New Caledonia • Niue • Panama • Palau • Philippines • Puerto Rico • Saint Kitts and Nevis • Saint Lucia • Saint Vincent and the Grenadine • Samoa • Sao Tome e Principe • Seychelles • Singapore • Solomon Islands • Somalia • South Africa • Tonga • Tuvalu • United Arab Emirates • United States of America • US Virgin Islands • Uruguay • Vanuatu 3. The specific countries or jurisdictions listed in Article 17(2) in which Article 2(3) shall apply pending the adoption by the country or jurisdiction concerned of provisions equivalent to those of Article 4(2) with regard to the legal forms of entities and legal arrangements referred to in Part 1 of this Annex if their place of effective management is located therein includes: • Alderney • Andorra • Anguilla • Aruba • British Virgin Islands • Cayman Islands • Gibraltar • Guernsey • Isle of Man • Jersey • Liechtenstein • Monaco • Montserrat • Netherlands Antilles • San Marino • Sark • Switzerland • Turks and Caicos 4. Any of the legal forms of entities and legal arrangements referred to in Part 1 of this Annex shall be covered by Article 2(3) if their place of effective management is located in any of the specific countries or jurisdictions referred to in Parts 2 and 3 of this Annex subject to the following: a. A country or jurisdiction referred to in Parts 2 and 3 can make an application to the Committee referred to in Article 18b to have any of the legal forms of entities and legal arrangements referred to in Part 1 removed from consideration for their country or jurisdiction on the grounds that the legal forms of entities and legal arrangements referred to could not have their place of effective management located therein or on the ground that appropriate taxation of interest income paid to these legal persons or arrangements is in fact ensured; b. The Committee shall publish its decision with reasons stated within 3 months of such application being made and the legal forms of entities and legal arrangements noted as being removed from the scope of Part 1 for the country or jurisdiction that has made such application for a notified period, not to exceed two years, which period may be extended on application form the country or jurisdiction submitted not more than six months prior to its date of expiry.

2009/02/19
Committee: ECON

11 Amendments of Bilyana Ilieva RAEVA related to 2008/0215(CNS)

ParlTrack - 2011-2024