Activities of José GUSMÃO related to 2022/0413(CNS)
Shadow reports (1)
REPORT on the proposal for a Council directive amending Directive 2011/16/EU on administrative cooperation in the field of taxation
Amendments (29)
Amendment 74 #
Proposal for a directive
Recital 5
Recital 5
(5) The crypto-asset market has gained in importance and increased its capitalisation substantially and rapidly over the last 10 years. Crypto-assets are a digital representation of a value or of a right, which is able to be transferred and stored electronically, using distributed ledger technology or similar technology. Due to its inherently opaque and volatile nature, crypto-assets are often used for illicit purposes. Tracking the transfers of crypto-assets is of high importance.
Amendment 75 #
Proposal for a directive
Recital 6
Recital 6
(6) Member States have rules and guidance in place, albeit different across Member States, to tax income derived from crypto-asset transactions. However, the decentralised nature ofMember States such as Portugal, Germany and Malta designed tax benefits specifically targeted to attract crypto- assets makes it difficult for Member States’ tax administrations to ensure tax compliancewhich could lead to harmful tax practices and losses of tax revenues.
Amendment 76 #
Proposal for a directive
Recital 7
Recital 7
(7) Regulation XXX on Markets in Crypto-assets of the European Parliament and the Council26 (the Regulation XXX) has expanded thesignificant loopholes in setting an Union regulatory perimeter to issues of crypto- assets that had so far not been regulated by Union financial services acts as well as providers of services in relation to such crypto- assets (‘crypto-asset service providers’). The Regulation XXX sets out definitio. Namely, instruments of decentralised finance, crypto lending activities, crypto conglomerates and non fungible tokens that are used for the purposes of this Directive. This Directive also takes into account the authorisation requirement for crypto-asset service providers under Regulation XXX in order to minimise admve been carved out. This Directive broadens the scope by including such inistrative burden for the crypto-asset service provideruments. The inherent cross- border nature of crypto-assets requires strong international administrative cooperation to ensure effective regulation. __________________ 26 null.
Amendment 83 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13a) Individuals who have access to information related to sensitive tax information relevant to detect tax evasion and tax avoidance practices, regardless of the source, should be encouraged and fully protected to come forward and cooperate with the authorities with discretion and respect to the general interest.
Amendment 84 #
Proposal for a directive
Recital 14
Recital 14
(14) The Directive applies to crypto- assets service providers regulated by and authorised under Regulation XXX and to crypto-asset operators that are not. Both are referred to as reporting crypto-asset service providers as they are required to report under this Directive. The general understanding of what constitutes crypto- assets is very broad and includes those crypto-assets that have been issued in a decentralised manner, as well as stablecoins, and certain non-fungible tokens (NFTs). Crypto-assets that are used for payment or investment purposes are reportable under this Directive. Therefore, reporting crypto-asset service providers should consider on a case-by-case basis whether crypto-assets can be used for payment and investment purposes, taking into account the exemptions provided in Regulation XXX, in particular in relation to a limited network and certain utility tokens..
Amendment 97 #
Proposal for a directive
Recital 28
Recital 28
(28) In order to close loopholes that allow tax evasion, tax avoidance and tax fraud, Member States should be required to exchange information related to: (1) income derived from non-custodial dividends. Incom, (2) capital gains related to immovable fprom non-custodial dividends should therefore be included in the categories of income subject to mandatory automatic exchange of information. perty, (3) capital gains related financial assets, (4) capital gains related to non-financial assets such as cash, art, gold or other valuables held at free ports, customs warehouses or safe deposit boxes, (5) ownership of yachts and private jets, and (6) ownership of accounts at larger peer-to-peer lending, crowdfunding and similar platforms. The mandatory automatic exchange of information is only deemed complied with if all this information can be consulted through national or interconnected registries by competent authorities.
Amendment 101 #
Proposal for a directive
Recital 31 a (new)
Recital 31 a (new)
(31a) In recent years, there has been a significant increase of preferential tax regimes in personal income tax systems by EU Member States, namely regimes of digital nomads, pensionists or highly paid workers. This trend could lead to new forms of harmful tax practices and further losses of tax revenues. Member States shall keep registries or data retrieval systems regarding the number of users of such regimes and up to date estimations of associated costs or loss of tax revenues.
Amendment 109 #
Proposal for a directive
Recital 38
Recital 38
(38) The minimum retention period of records of information obtained through exchange of information between Member States pursuant to Directive 2011/16/EU should be no longer than necessary but, in any event, not shorter than 510 years. Member States should not retain information longer than necessary to achieve the purposes of this Directive.
Amendment 115 #
Proposal for a directive
Recital 40
Recital 40
(40) To guarantee an adequate level of effectiveness in all Member States, minimum levels of penalties should be established in relation to two conducts that are considered grievous: namely failure to report after two administrative reminders and when the provided information contains incomplete, incorrect or false data, which substantially affects the integrity and reliability of the reported information. Incomplete, incorrect or false data substantially affect the integrity and reliability of the reported information when they amount to more than 2510 % of the total data that the taxpayer or reporting entity should have correctly reported in accordance with the required information set forth in Annex VI, Section II, subparagraph (B). These minimum amounts of penalties should not prevent Member States from applying more stringent sanctions for these two types of infringements. Member States still have to apply effective, dissuasive and proportional penalties for other types of infringements.
Amendment 118 #
Proposal for a directive
Recital 41
Recital 41
(41) In order to take into account possible changes in the prices for goods and services, the Commission should evaluate the penalties provided for in this Directive every 52 years.
Amendment 125 #
Proposal for a directive
Article 1 – paragraph 1 – point 1 – point b
Article 1 – paragraph 1 – point 1 – point b
Directive 2011/16/EU
Article 3 – point 28
Article 3 – point 28
28. ‘high net worth individual’ means an individual that holds in total a minimum of EUR 1 00750 000 in financial or investable wealth or assets under management, excluding that individual’s main private residence. For the purposes of this Directive, an individual shall be considered as a high net worth individual when that minimum threshold is met at any time during the calendar year for which the exchange takes place.
Amendment 134 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point a – point i
Article 1 – paragraph 1 – point 2 – point a – point i
Directive 2011/16/EU
Article 8 – paragraph 1 – point e
Article 8 – paragraph 1 – point e
(e) ownership of and incomebeneficial ownership, income and capital gains from immovable property;
Amendment 138 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point a – point i
Article 1 – paragraph 1 – point 2 – point a – point i
Directive 2011/16/EU
Article 8 – paragraph 1 – point g a (new)
Article 8 – paragraph 1 – point g a (new)
(ga) beneficial ownership, income and capital gains from financial assets;
Amendment 139 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point a – point i
Article 1 – paragraph 1 – point 2 – point a – point i
Directive 2011/16/EU
Article 8 – paragraph 1 – point g b (new)
Article 8 – paragraph 1 – point g b (new)
(gb) beneficial ownership, income and capital gains from non-financial assets, such as cash, art, gold or other valuables held at free ports, customs warehouses or safe deposit boxes;
Amendment 140 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point a – point i
Article 1 – paragraph 1 – point 2 – point a – point i
Directive 2011/16/EU
Article 8 – paragraph 1 – point g c (new)
Article 8 – paragraph 1 – point g c (new)
(gc) beneficial ownership of yachts and private jets;
Amendment 141 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point a – point i
Article 1 – paragraph 1 – point 2 – point a – point i
Directive 2011/16/EU
Article 8 – paragraph 1 – point g d (new)
Article 8 – paragraph 1 – point g d (new)
(gd) beneficial ownership of accounts at larger peer-to-peer lending, crowdfunding and similar platforms;
Amendment 144 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point b a (new)
Article 1 – paragraph 1 – point 2 – point b a (new)
Directive 2011/16/EU
Article 8 – paragraph 3
Article 8 – paragraph 3
(ba) paragraph 3 is deleted.
Amendment 147 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 a (new)
Article 1 – paragraph 1 – point 2 a (new)
Directive 2011/16/EU
Article 8 a (new)
Article 8 a (new)
(2a) The following Article is inserted : "Article 8 a (new) Registries on preferential tax regimes in personal income tax systems Member States shall keep registries or data retrieval systems regarding the number of users for all types of preferential tax regimes in personal income tax systems and updated estimations of associated costs or loss of tax revenues."
Amendment 148 #
Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b a (new)
Article 1 – paragraph 1 – point 3 – point b a (new)
Directive 2011/16/EU
Article 8a – paragraph 3 – subparagraph 2 a (new)
Article 8a – paragraph 3 – subparagraph 2 a (new)
(ba) in paragraph 3, the following subparagraph is added : "The competent authority shall not sign new bilateral or multilateral advance pricing arrangements with third countries that do not permit their disclosure to competent authorities of other Member States."
Amendment 151 #
Proposal for a directive
Article 1 – paragraph 1 – point 3 a (new)
Article 1 – paragraph 1 – point 3 a (new)
Directive 2011/16/EU
Article 8aa – paragraph 1
Article 8aa – paragraph 1
(3a) Article 8aa, paragraph 1 is changed as follows: "1. Each Member State shall take the necessary measures to require the Ultimate Parent Entity of an MNE Group that isfiling a country-by-country report with respect to its Reporting Fiscal Year within 12 months of the last day of the Reporting Fiscal Year to the following entities with residentce for tax purposes in its territory, or any other Reporting Entity in accordance with Section II of Annex III, to file a country-by-country report with respect to its Reporting Fiscal Year within 12 months of the last day of the Reporting Fiscal Year of the MNE Group in accordance with Section II of Annex III. : (1) large undertakings as defined in directive 2013/34/EU; (2) Ultimate Parent Entity or any other Reporting Entity of MNE Groups, despite the global annual turnover of the MNE Group; (3) any Constituent Entity, in the case the tax residence of the Ultimate Parent Entity is in a third jurisdiction, despite the global annual turnover of the MNE Group." Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02011L0016-20230101)
Amendment 163 #
Proposal for a directive
Article 1 – paragraph 1 – point 6
Article 1 – paragraph 1 – point 6
Directive 2011/16/EU
Article 8ad – paragraph 6
Article 8ad – paragraph 6
Amendment 174 #
Proposal for a directive
Article 1 – paragraph 1 – point 6 a (new)
Article 1 – paragraph 1 – point 6 a (new)
Directive 2011/16/EU
Article 8b – paragraph 1
Article 8b – paragraph 1
(6a) in Article 8b, paragraph 1 is replaced by the following: "1. Member States shall provide the Commission on an annual basis with all relevant material information, including statistics on the volume of automatic exchanges as well as an assessment of the usability of the data being exchanged under Articles 8(1), 8(3a), 8aa, 8ac and 8acd and with information on the administrative and other relevant costs and benefits relating to exchanges that have taken place and any potential changes, for both tax administrations and third parties. " Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02011L0016-20230101)
Amendment 188 #
Proposal for a directive
Article 1 – paragraph 1 – point 10
Article 1 – paragraph 1 – point 10
Directive 2011/16/EU
Article 22 – paragraph 3
Article 22 – paragraph 3
3. Member States shall retain the records of the information received through automatic exchange of information pursuant to Articles 8 to 8ad for no longer than necessary but in any event not shorter than 510 years from its date of receipt to achieve the purposes of this Directive.
Amendment 192 #
Proposal for a directive
Article 1 – paragraph 1 – point 11
Article 1 – paragraph 1 – point 11
Directive 2011/16/EU
Article 23 – paragraph 3
Article 23 – paragraph 3
3. Member States shall communicate to the Commission a yearly assessment of the effectiveness of the automatic exchange of information referred to in Articles 8 to 8ad as well as the practical results achievedexchange of information on request referred to in Articles 5, 6 and 7 and of the automatic exchange of information referred to in Articles 8 to 8ad, the level of cooperation with third countries, as well as the practical results achieved, including the incremental tax revenues associated and illicit practices identified. The information communicated shall be disaggregated by the Commission. The Commission shall, by means of implementing acts, adopt the form and the conditions of communication for that yearly assessment. Those implementing acts shall be adopted in accordance with the procedure referred to in Article 26(2).
Amendment 193 #
Proposal for a directive
Article 1 – paragraph 1 – point 11 – point a (new)
Article 1 – paragraph 1 – point 11 – point a (new)
Directive 2011/16/EU
Article 23a – paragraph 1
Article 23a – paragraph 1
(11a) Article 23a is amended as follows: (a) paragraph 1 is replaced by the following: "1. Information communicated to the Commission pursuant to this Directive shall be kept confidential by the Commission in accordance with the provisions applicable to Union authorities and may not be used for any purposes other than those required to determine whether and to what extent Membeto the point that does not harm general interest or States comply with this Directive. (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02011L0016-20230101)x payers. " Or. en
Amendment 195 #
Proposal for a directive
Article 1 – paragraph 1 – point 11 – point b (new)
Article 1 – paragraph 1 – point 11 – point b (new)
Directive 2011/16/EU
Article 23a – paragraph 2 – subparagraph 2
Article 23a – paragraph 2 – subparagraph 2
(11b) In Article 23a, paragraph 2, subparagraph 2 is replaced by the following: "Reports and documents produced by the Commission, referred to in the first subparagraph, may be used by the Member States only for analytical purposand be accessible to all interested parties, and shall not be published or made available to any other person or body without the express agreement of the Commission. ubsequently be public. " Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02011L0016-20230101)
Amendment 210 #
Proposal for a directive
Article 1 – paragraph 1 – point 13
Article 1 – paragraph 1 – point 13
In cases of failure to report after 2 administrative reminders or when the provided information contains incomplete, incorrect or false data, amounting to more than 2510 % of the information that should have been reported in accordance with the information set forth in Annex VI, Section II, subparagraph (B), Member States shall ensure that the penalties that can be applied include at least the following minimum pecuniary penalties.
Amendment 217 #
Proposal for a directive
Article 1 – paragraph 1 – point 13
Article 1 – paragraph 1 – point 13
Directive 2011/16/EU
Article 25a – paragraph 3 – subparagraph 1 a (new)
Article 25a – paragraph 3 – subparagraph 1 a (new)
When deemed appropriate and the financial penalties are considered non- dissuasive, Member States shall establish as penalties exclusion from public contracts and, in extreme and repeated cases, the revoking of the business licence.
Amendment 233 #
Proposal for a directive
Article 1 – paragraph 1 – point 14
Article 1 – paragraph 1 – point 14
Directive 2011/16/EU
Article 27 – paragraph 2 a (new)
Article 27 – paragraph 2 a (new)
2a. For the purposes of paragraph 2 of this Article, the Commission shall adopt a common framework for measuring the impact and the costs and benefits of this Directive.