2021/0434(CNS) Taxation: rules to prevent the misuse of shell entities for tax purposes
Lead committee dossier:
Progress: Awaiting final decision
| Role | Committee | Rapporteur | Shadows |
|---|---|---|---|
| Lead | ECON |
PEREIRA Lídia ( EPP)
|
TANG Paul ( S&D),
BOYER Gilles ( Renew),
URTASUN Ernest ( Greens/EFA),
HOOGEVEEN Michiel ( ECR),
BECK Gunnar ( ID),
WALLACE Mick ( The Left)
|
Lead committee dossier:
Legal Basis:
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Legal Basis:
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Events
2024/07/08
European Commission - Commission response to text adopted in plenary
Documents
2023/01/17
EP - Decision by Parliament
Details
The European Parliament adopted by 593 votes to 21, with 8 abstentions, following a special legislative procedure (consultation of Parliament), a legislative resolution on the proposal for a Council directive laying down rules to prevent the misuse of shell entities for tax purposes and amending Directive 2011/16/EU.
Members pointed out that the misuse of shell entities for tax purposes leads to a reduction in tax liability and tax loss within the Union. They consider that it is therefore essential that this Directive sets ambitious and proportionate standards for the definition of common minimum substance requirements, for the improvement of exchange of information between national tax administrations and for the dissuasion of the use of shell entities promoted by certain intermediaries.
The European Parliament approved the Commission proposal subject to the following amendments:
Identification of companies that do not meet minimum substance indicators
According to Members, Member States should require undertakings meeting the following cumulative criteria to report to the competent authorities of Member States:
- more than 65% (instead of 75%) of the revenues accruing to the undertaking in the preceding two tax years is relevant income of the company's revenue in the previous two tax years is relevant income;
- the undertaking is engaged in cross-border activity on any of the following grounds: (i) more than 55% (instead of 60%) of the book value of the undertaking’s assets that fall within the scope of Article 4, points (e) and (f), was located outside the Member State of the undertaking in the preceding two tax years; (ii) more than 55% (instead of 60%) of the undertaking’s relevant income is earned or paid out via cross-border transactions;
- in the preceding two tax years, the undertaking outsourced the administration of day-to-day operations and the decision-making on significant functions to a third party .
Indicators of minimum substance for tax purposes
Undertakings meeting the criteria declare in their annual tax return should, for each tax year, whether they meet the following indicators of minimum substance:
- the undertaking has own premises in the Member State, premises for its exclusive use or premises shared with entities of the same group;
- the undertaking has at least one own and active bank account or e-money account in the Union through which the relevant income is received;
- one or more directors of the undertaking are qualified and authorised to take decisions in relation to the activities that generate relevant income for the undertaking or in relation to the undertaking’s assets;
- the majority of the full-time equivalent employees of the undertaking have their habitual residence as set out in Regulation (EC) No 593/2008 in the Member State of the undertaking, or are at no greater distance from that Member States insofar as such distance is compatible with the proper performance of their duties.
Undertakings should accompany their tax return declaration with documentary evidence including:
- an overview of the structure of the undertaking and associated enterprises and any significant outsourcing arrangements, including the rationale behind the structure, described in the context of a standardised format;
- a summary report of the documentary evidence submitted under this paragraph, containing in particular: (i) a brief description of the nature of the activities of the undertaking; (ii) the number of employees on a full-time equivalent basis; (iii) the amount of profit or loss before and after taxes.
Rebuttal of the presumption
Member States should take measures to enable undertakings that are presumed not to have minimum substance to rebut this presumption, without undue delay and excessive administrative costs, by providing any additional supporting evidence of the business activities which they perform to generate relevant income.
To this end, undertakings should provide the following additional evidence: (i) a document allowing to ascertain the business rationale behind the establishment of the undertaking in the Member State where the activity is performed; (ii) information on the profiles of full-time, part-time and freelance employees while ensuring high levels of data protection and privacy.
The Member State should consider a request for the rebuttal of the presumption within a period of nine months after the introduction of the request and it should be considered to be accepted in the absence of an answer from the Member State after the expiry of that nine-month period.
Where a Member State considers that an undertaking has satisfactorily rebutted a presumption of lack of substance, it should be able to adopt a decision certifying that the undertaking has minimum substance for tax purposes. This decision should remain valid for up to 5 years from the date of adoption of the decision.
Tax consequences of not having minimum substance
Where an undertaking does not have minimum substance for tax purposes in the Member State where it is resident for tax purposes, that Member State should deny any request for a certificate of tax residence to the undertaking for use outside the jurisdiction of that Member State.
When denying a request for such certificate, the Member State should issue an official statement duly justifying such decision and prescribing that the undertaking is not entitled to the benefits of agreements and conventions that provide for the elimination of double taxation of income, and, where applicable, capital, or of international agreements with a similar purpose or effect.
Penalties
Members stressed that Member States must share relevant information to which they have access, implement systems supporting the exchange of that information and, as a final step, enforce proposed sanctions against non-complying entities.
Penalties should include (i) an administrative pecuniary sanction of at least 2% of the undertaking’s revenue in the relevant tax year, if the undertaking that is required to report does not comply with such requirement for a tax year within the prescribed deadline and an administrative pecuniary sanction of at least 4% of the undertaking’s revenue if the undertaking that is required to report makes a false declaration in the tax return.
Request for a joint tax audit
Where the competent authority of one Member State has reason to believe that an undertaking which is resident for tax purposes in another Member State has not met its obligations under this Directive, the former Member State may, specifying such reasons, request the competent authority of the latter to conduct a joint tax audit of the undertaking. If the requesting competent authority is not able to conduct a joint tax audit due to legal reasons, the competent authority of the requested Member State should initiate a national audit within one month from the date of receipt of the request.
Review
No later than five years after the date of transposition of the Directive, the Commission should present a report on the implementation and operation of the Directive. Where appropriate, the report would be accompanied by a review with a view to increasing the effectiveness of the Directive and a legislative proposal to amend the Directive.
The report should assess:
- the impact of this Directive on tax revenues in Member States, on tax administration’s capacities and in particular, whether there is a need to amend this Directive;
- whether it would be appropriate to add a substance indicator based on pre-tax profit per employee and to extend the obligation to report on indicators of minimum substance for tax purposes set out in that Article to regulated financial undertakings and, if necessary, review the exemption granted to them.
Text adopted by Parliament, 1st reading/single reading
Documents
2023/01/17
EP - Results of vote in Parliament
Documents
2023/01/16
EP - Debate in Parliament
Documents
2022/12/12
EP - Committee report tabled for plenary, 1st reading/single reading
Details
The Committee on Economic and Monetary Affair adopted, under the consultation procedure, the report by Lídia PEREIRA (EPP, PT) on the proposal for a Council directive laying down rules to prevent the misuse of shell entities for tax purposes and amending Directive 2011/16/EU.
Members recalled that the Pandora Papers’ revelations reported on the creation of shell companies with the purpose of moving money between bank accounts, avoiding taxes and committing financial crimes, including money laundering, and circumventing Union sanctions on Russian oligarchs. They consider it essential that the directive sets ambitious and proportionate standards for defining common minimum substance requirements, for improving the exchange of information between national tax administrations and for deterring the use of shell companies promoted by certain intermediaries.
The committee responsible recommends that the European Parliament approve the Commission proposal subject to the following amendments:
Identification of companies that do not meet minimum substance indicators
According to Members, Member States should require undertakings meeting the following cumulative criteria to report to the competent authorities of Member States:
- more than 65% (instead of 75%) of the revenues accruing to the undertaking in the preceding two tax years is relevant income of the company's revenue in the previous two tax years is relevant income;
- the undertaking is engaged in cross-border activity on any of the following grounds: (i) more than 55% (instead of 60%) of the book value of the undertaking’s assets that fall within the scope of Article 4, points (e) and (f), was located outside the Member State of the undertaking in the preceding two tax years; (ii) more than 55% (instead of 60%) of the undertaking’s relevant income is earned or paid out via cross-border transactions;
- in the preceding two tax years, the undertaking outsourced the administration of day-to-day operations and the decision-making on significant functions to a third party.
Members deleted the derogation for undertakings with at least five own full-time equivalent employees or members of staff exclusively carrying out the activities generating the relevant income.
Indicators of minimum substance for tax purposes
Member States should require that undertakings meeting the criteria declare in their annual tax return, for each tax year, whether they meet the following indicators of minimum substance:
- the undertaking has own premises in the Member State, premises for its exclusive use or premises shared with entities of the same group;
- the undertaking has at least one own and active bank account or e-money account in the Union through which the relevant income is received;
- one or more directors of the undertaking are qualified and authorised to take decisions in relation to the activities that generate relevant income for the undertaking or in relation to the undertaking’s assets;
- the majority of the full-time equivalent employees of the undertaking have their habitual residence as set out in Regulation (EC) No 593/2008 in the Member State of the undertaking, or are at no greater distance from that Member States insofar as such distance is compatible with the proper performance of their duties.
Undertakings should accompany their tax return declaration with documentary evidence including:
- an overview of the structure of the undertaking and associated enterprises and any significant outsourcing arrangements, including the rationale behind the structure, described in the context of a standardised format;
- a summary report of the documentary evidence submitted under this paragraph, containing in particular: (i) a brief description of the nature of the activities of the undertaking; (ii) the number of employees on a full-time equivalent basis; (iii) the amount of profit or loss before and after taxes.
Rebuttal of the presumption
Member States should take measures to enable undertakings that are presumed not to have minimum substance to rebut this presumption, without undue delay and excessive administrative costs, by providing any additional supporting evidence of the business activities which they perform to generate relevant income.
To this end, undertakings should provide the following additional evidence: (i) a document allowing to ascertain the business rationale behind the establishment of the undertaking in the Member State where the activity is performed; (ii) information on the profiles of full-time, part-time and freelance employees while ensuring high levels of data protection and privacy.
The Member State should consider a request for the rebuttal of the presumption within a period of nine months after the introduction of the request and it should be considered to be accepted in the absence of an answer from the Member State after the expiry of that nine-month period.
Tax consequences of not having minimum substance
Where an undertaking does not have minimum substance for tax purposes in the Member State where it is resident for tax purposes, that Member State should deny any request for a certificate of tax residence to the undertaking for use outside the jurisdiction of that Member State.
When denying a request for such certificate, the Member State should issue an official statement duly justifying such decision and prescribing that the undertaking is not entitled to the benefits of agreements and conventions that provide for the elimination of double taxation of income, and, where applicable, capital, or of international agreements with a similar purpose or effect.
Penalties
Penalties should include (i) an administrative pecuniary sanction of at least 2% of the undertaking’s revenue in the relevant tax year, if the undertaking that is required to report does not comply with such requirement for a tax year within the prescribed deadline and an administrative pecuniary sanction of at least 4% of the undertaking’s revenue if the undertaking that is required to report makes a false declaration in the tax return.
Review
No later than five years after the date of transposition of the Directive, the Commission should present a report on the implementation and operation of the Directive. Where appropriate, the report would be accompanied by a review with a view to increasing the effectiveness of the Directive and a legislative proposal to amend the Directive.
The report should assess:
- the impact of this Directive on tax revenues in Member States, on tax administration’s capacities and in particular, whether there is a need to amend this Directive;
- whether it would be appropriate to add a substance indicator based on pre-tax profit per employee and to extend the obligation to report on indicators of minimum substance for tax purposes set out in that Article to regulated financial undertakings and, if necessary, review the exemption granted to them.
Committee report tabled for plenary, 1st reading/single reading
Documents
2022/11/30
EP - Vote in committee
2022/09/08
European Parliament - Amendments tabled in committee
Documents
2022/05/12
European Parliament - Committee draft report
Documents
2022/04/29
SE_PARLIAMENT - Reasoned opinion
Documents
2022/03/23
Economic and Social Committee: opinion, report - ESC
Documents
2022/02/14
EP - Committee referral announced in Parliament
2022/01/25
EP - PEREIRA Lídia (EPP) appointed as rapporteur in ECON
2021/12/22
European Commission - Legislative proposal
Details
PURPOSE: to reduce tax revenue loss related to tax avoidance and tax evasion due to the use of shell entities in the EU.
PROPOSED ACT: Council Directive.
ROLE OF THE EUROPEAN PARLIAMENT: the Council adopts the act after consulting the European Parliament but without being obliged to follow its opinion.
BACKGROUND: on 18 May 2021, the European Commission adopted a Communication on Business Taxation for the 21st century to promote a robust, efficient and fair business tax system in the European Union. It sets out both a long-term and short-term vision to support Europe's recovery from the COVID-19 pandemic and to ensure adequate public revenues over the coming years. It aims to create an equitable and stable business environment, which can boost sustainable and job-rich growth in the Union.
The Commission proposal responds to a request from the European Parliament for EU action to counter the misuse of shell entities for tax purposes and, more generally, to the demand of several Member States, businesses and civil society for a stronger and more coherent EU approach against tax avoidance and evasion.
This proposal is one of the short-term, targeted initiatives which were announced in the Communication as a means to improve the current tax system with a focus on ensuring fair and effective taxation. It complements a number of other policy initiatives promoted by the Commission in parallel, in the short- and long-term. These include a proposal for a Directive on ensuring a global minimum level of taxation for multinational groups in the Union.
As a reminder, shell entities are legal entities and arrangements with no – or only minimal – business presence and economic activity. Shell companies are often used for aggressive tax planning or tax evasion purposes. Businesses can direct financial flows through shell entities towards jurisdictions that have no or very low taxes, or where taxes can easily be circumvented. Similarly, some individuals can use shells to shield assets – particularly real estate – from taxes, either in their country of residence or in the country where the property is located.
The number of shell entities within the EU is unknown. This is in particular because within the EU, there is no common definition of what shell entities are and consequently nor statistics about them.
CONTENT: this Commission proposal aims to counter the misuse of shell entities for tax purposes only , and in so doing contribute to fair and effective taxation. It lays down indicators of minimum substance for undertakings in Member States and rules regarding the treatment for tax purposes of those undertakings that do not meet the indicators. It will apply to all undertakings that are considered tax resident and are eligible to receive a tax residency certificate in a Member State.
Transparency
The proposal aims to introduce, within the EU, common rules to be able to identify shell entities at high risk of tax abuse. Such rules would define objective substance requirements and would ensure that shell entities used for tax abuse can be identified promptly. However, substance requirements alone are not enough to prevent tax abuse. To be effective, the initiative will set clear, pre-determined, common tax consequences throughout the EU to prevent tax losses and also to prevent tax and regulatory arbitrage in the EU.
Substance test
The proposal lays down a test that will help Member States to identify undertakings that are engaged in an economic activity, but which do not have minimal substance and are misused for the purpose of obtaining tax advantages. This test can be commonly referred to as a ‘substance test’. Using a number of objective indicators related to income, staff and premises, the proposal will help national tax authorities detect entities that exist merely on paper.
Gateways
The proposal introduces a filtering system for the entities in scope, which have to comply with a number of indicators. These levels of indicators constitute a type of ‘gateway’. The Commission sets out three gateways. If a company crosses all three gateways, it will be required to annually report more information to the tax authorities through its tax return.
1. The first level of indicators looks at the activities of the entities based on the income they receive . The gateway is met if more than 75% of an entity's overall revenue in the previous two tax years does not derive from the entity's business activity or if more than 75% of its assets are real estate property or other private property of particularly high value.
2. The second gateway requires a cross-border element . If the company receives the majority of its relevant income through transactions linked to another jurisdiction or passes this relevant income on to other companies situated abroad, the company crosses to the next gateway.
3. The third gateway focuses on whether corporate management and administration services are performed in-house or are outsourced .
Exchange of information
In addition, Member States need to know about the existence of shell entities being identified as such in another Member State. This would allow other Member States to take effective and prompt actions to address cross-border tax abuse by, for example, denying tax treaty benefits on withholding taxes paid to the shell entity by a company in their own jurisdiction. Timely availability of information on the existence of identified shell entities, both at national level and in other Member States, will provide Member States with an effective mechanism to prevent shell entity tax abuse in the EU. Member States will exchange the information within 30 days from the time the administration has such information.
Penalties
The proposal leaves it to Member States to lay down penalties applicable against the violation of the reporting obligations provided by the draft directive as transposed into the national legal order. The penalties shall be effective, proportionate and dissuasive. A minimum level of coordination should be achieved amongst Member States through the set of a minimum monetary penalty as per existing provisions in the financial sector. Penalties should include an administrative pecuniary sanction of at least 5% of the undertaking’s turnover.
Deter trust or company service providers from creating shell entities in the EU
Lastly, the proposal aims to discourage the use of trust or company service providers from creating shell entities in the EU in the first place. The substance requirements include criteria which aim to combat the very services that trust or company service providers offer such as setting up postal addresses.
Legislative proposal
Documents
2021/12/22
European Commission - Document attached to the procedure
Documents
2021/12/22
European Commission - Document attached to the procedure
Documents
2021/12/22
European Commission - Document attached to the procedure
Documents
2021/12/22
European Commission - Document attached to the procedure
Documents
2021/12/22
EC - Legislative proposal published
Details
PURPOSE: to reduce tax revenue loss related to tax avoidance and tax evasion due to the use of shell entities in the EU.
PROPOSED ACT: Council Directive.
ROLE OF THE EUROPEAN PARLIAMENT: the Council adopts the act after consulting the European Parliament but without being obliged to follow its opinion.
BACKGROUND: on 18 May 2021, the European Commission adopted a Communication on Business Taxation for the 21st century to promote a robust, efficient and fair business tax system in the European Union. It sets out both a long-term and short-term vision to support Europe's recovery from the COVID-19 pandemic and to ensure adequate public revenues over the coming years. It aims to create an equitable and stable business environment, which can boost sustainable and job-rich growth in the Union.
The Commission proposal responds to a request from the European Parliament for EU action to counter the misuse of shell entities for tax purposes and, more generally, to the demand of several Member States, businesses and civil society for a stronger and more coherent EU approach against tax avoidance and evasion.
This proposal is one of the short-term, targeted initiatives which were announced in the Communication as a means to improve the current tax system with a focus on ensuring fair and effective taxation. It complements a number of other policy initiatives promoted by the Commission in parallel, in the short- and long-term. These include a proposal for a Directive on ensuring a global minimum level of taxation for multinational groups in the Union.
As a reminder, shell entities are legal entities and arrangements with no – or only minimal – business presence and economic activity. Shell companies are often used for aggressive tax planning or tax evasion purposes. Businesses can direct financial flows through shell entities towards jurisdictions that have no or very low taxes, or where taxes can easily be circumvented. Similarly, some individuals can use shells to shield assets – particularly real estate – from taxes, either in their country of residence or in the country where the property is located.
The number of shell entities within the EU is unknown. This is in particular because within the EU, there is no common definition of what shell entities are and consequently nor statistics about them.
CONTENT: this Commission proposal aims to counter the misuse of shell entities for tax purposes only , and in so doing contribute to fair and effective taxation. It lays down indicators of minimum substance for undertakings in Member States and rules regarding the treatment for tax purposes of those undertakings that do not meet the indicators. It will apply to all undertakings that are considered tax resident and are eligible to receive a tax residency certificate in a Member State.
Transparency
The proposal aims to introduce, within the EU, common rules to be able to identify shell entities at high risk of tax abuse. Such rules would define objective substance requirements and would ensure that shell entities used for tax abuse can be identified promptly. However, substance requirements alone are not enough to prevent tax abuse. To be effective, the initiative will set clear, pre-determined, common tax consequences throughout the EU to prevent tax losses and also to prevent tax and regulatory arbitrage in the EU.
Substance test
The proposal lays down a test that will help Member States to identify undertakings that are engaged in an economic activity, but which do not have minimal substance and are misused for the purpose of obtaining tax advantages. This test can be commonly referred to as a ‘substance test’. Using a number of objective indicators related to income, staff and premises, the proposal will help national tax authorities detect entities that exist merely on paper.
Gateways
The proposal introduces a filtering system for the entities in scope, which have to comply with a number of indicators. These levels of indicators constitute a type of ‘gateway’. The Commission sets out three gateways. If a company crosses all three gateways, it will be required to annually report more information to the tax authorities through its tax return.
1. The first level of indicators looks at the activities of the entities based on the income they receive . The gateway is met if more than 75% of an entity's overall revenue in the previous two tax years does not derive from the entity's business activity or if more than 75% of its assets are real estate property or other private property of particularly high value.
2. The second gateway requires a cross-border element . If the company receives the majority of its relevant income through transactions linked to another jurisdiction or passes this relevant income on to other companies situated abroad, the company crosses to the next gateway.
3. The third gateway focuses on whether corporate management and administration services are performed in-house or are outsourced .
Exchange of information
In addition, Member States need to know about the existence of shell entities being identified as such in another Member State. This would allow other Member States to take effective and prompt actions to address cross-border tax abuse by, for example, denying tax treaty benefits on withholding taxes paid to the shell entity by a company in their own jurisdiction. Timely availability of information on the existence of identified shell entities, both at national level and in other Member States, will provide Member States with an effective mechanism to prevent shell entity tax abuse in the EU. Member States will exchange the information within 30 days from the time the administration has such information.
Penalties
The proposal leaves it to Member States to lay down penalties applicable against the violation of the reporting obligations provided by the draft directive as transposed into the national legal order. The penalties shall be effective, proportionate and dissuasive. A minimum level of coordination should be achieved amongst Member States through the set of a minimum monetary penalty as per existing provisions in the financial sector. Penalties should include an administrative pecuniary sanction of at least 5% of the undertaking’s turnover.
Deter trust or company service providers from creating shell entities in the EU
Lastly, the proposal aims to discourage the use of trust or company service providers from creating shell entities in the EU in the first place. The substance requirements include criteria which aim to combat the very services that trust or company service providers offer such as setting up postal addresses.
Legislative proposal
Documents
Documents
- Commission response to text adopted in plenary: SP(2024)270
- Decision by Parliament: T9-0004/2023
- Results of vote in Parliament: Results of vote in Parliament
- Debate in Parliament: Go to the page
- Committee report tabled for plenary, 1st reading/single reading: A9-0293/2022
- Amendments tabled in committee: PE735.759
- Committee draft report: PE731.794
- Reasoned opinion: PE731.656
- ESC: CES6494/2021
- Legislative proposal: COM(2021)0565
- Legislative proposal: Go to the pageEur-Lex
- Document attached to the procedure: Go to the pageEur-Lex
- Document attached to the procedure: SWD(2021)0579
- Document attached to the procedure: SEC(2021)0565
- Document attached to the procedure: Go to the pageEur-Lex
- Document attached to the procedure: SWD(2021)0577
- Document attached to the procedure: Go to the pageEur-Lex
- Document attached to the procedure: SWD(2021)0578
- Legislative proposal published: COM(2021)0565
- Legislative proposal published: Go to the page Eur-Lex
- Committee draft report: PE731.794
- Amendments tabled in committee: PE735.759
- Legislative proposal: COM(2021)0565 Go to the pageEur-Lex
- Document attached to the procedure: Go to the pageEur-Lex SWD(2021)0579
- Document attached to the procedure: SEC(2021)0565
- Document attached to the procedure: Go to the pageEur-Lex SWD(2021)0577
- Document attached to the procedure: Go to the pageEur-Lex SWD(2021)0578
- Commission response to text adopted in plenary: SP(2024)270
- Reasoned opinion: PE731.656
- ESC: CES6494/2021
Activities
- Dimitrios PAPADIMOULIS
Plenary Speeches (1)
- Paul TANG
Plenary Speeches (1)
- Ernest URTASUN
Plenary Speeches (1)
- Gunnar BECK
Plenary Speeches (1)
- José GUSMÃO
Plenary Speeches (1)
- Michal ŠIMEČKA
Plenary Speeches (1)
- Mick WALLACE
Plenary Speeches (1)
- Andżelika Anna MOŻDŻANOWSKA
Plenary Speeches (1)
- Claude GRUFFAT
Plenary Speeches (1)
- Michiel HOOGEVEEN
Plenary Speeches (1)
Votes
Règles visant à empêcher l'utilisation abusive des entités écrans à des fins fiscales - A9-0293/2022 - Lídia Pereira - Proposition de la Commission #
2023/01/17 Outcome: +: 637, 0: 6, -: 2
PPE
Verts/ALE
NI| Amendments | Dossier |
| 170 |
2021/0434(CNS)
2022/09/08
ECON
170 amendments...
Amendment 100 #
Proposal for a directive Article 6 – paragraph 1 – point c – paragraph 2 An undertaking which holds assets that can generate income falling within the scope of Article 4, point (c), shall also be deemed to meet the criterion set out in point (a) of the first subparagraph, irrespective of whether income from these assets has accrued to the undertaking in the preceding two tax years, if the book value of these assets is more than
Amendment 101 #
Proposal for a directive Article 6 – paragraph 1 – point c a (new) (ca) in the preceding two tax years, the undertaking has not exceeded 3 times the average of the sector in the Union in the following categories: (i) profitability per employee; (ii) profitability of assets; (iii) productivity per employee; (iv) turnover on assets.
Amendment 102 #
Proposal for a directive Article 6 – paragraph 1 – subparagraph 3a (new) For the purposes of this Article, the first two tax year period shall start from 1 January 2024.
Amendment 104 #
Proposal for a directive Article 6 – paragraph 2 – introductory part 2. By derogation from paragraph 1, Member States shall ensure that the undertakings falling within any of the
Amendment 105 #
Proposal for a directive Article 6 – paragraph 2 – point b Amendment 106 #
Proposal for a directive Article 6 – paragraph 2 – point b Amendment 107 #
Proposal for a directive Article 6 – paragraph 2 – point c Amendment 108 #
Proposal for a directive Article 6 – paragraph 2 – point d Amendment 109 #
Proposal for a directive Article 6 – paragraph 2 – point d (d) undertakings with holding activities that are resident for tax purposes in the same Member State as the majority of the undertaking’s shareholder(s) or the ultimate parent entity, as defined in Section I, point 7, of Annex
Amendment 110 #
Proposal for a directive Article 6 – paragraph 2 – point e Amendment 111 #
Proposal for a directive Article 6 – paragraph 2 – point e Amendment 112 #
Proposal for a directive Article 6 – paragraph 2 – point e Amendment 113 #
Proposal for a directive Article 6 – paragraph 2 – point e Amendment 114 #
Proposal for a directive Article 6 – paragraph 2 – point e (e) undertakings w
Amendment 115 #
Proposal for a directive Article 6 – paragraph 2 – point e (e) undertakings with a
Amendment 116 #
Proposal for a directive Article 6 – paragraph 2 – point e (e) undertakings with at least
Amendment 119 #
Proposal for a directive Article 6 – paragraph 2 a (new) Amendment 120 #
Proposal for a directive Article 6 – paragraph 2 a (new) 2a. The Commission shall be empowered to adopt delegated acts, after 2 years of the entry into force of this Directive, to extend the categories in scope of paragraph 2.
Amendment 121 #
Proposal for a directive Article 7 – paragraph 1 – introductory part 1. Member States shall require that undertakings
Amendment 122 #
Proposal for a directive Article 7 – paragraph 1 – introductory part 1. Member States shall require that undertakings meeting the criteria laid down in Article 6(1) declare in their annual tax return, for each tax year,
Amendment 123 #
Proposal for a directive Article 7 – paragraph 1 – point a (a) the undertaking has own premises in the Member State,
Amendment 124 #
Proposal for a directive Article 7 – paragraph 1 – point a a (new) (aa) in the preceding two tax years, the undertaking outsourced the administration of day-to-day operations and the decision-making on significant functions;
Amendment 125 #
Proposal for a directive Article 7 – paragraph 1 – point b (b) the undertaking has at least one own
Amendment 126 #
Proposal for a directive Article 7 – paragraph 1 – point b (b) the undertaking has at least one own and active bank account or e-money account in the Union;
Amendment 127 #
Proposal for a directive Article 7 – paragraph 1 – point b a (new) (ba) the majority of the full-time equivalent employees of the undertaking have their habitual place of work as defined by Regulation (EC) No 593/2008 in the Member State of the undertaking, and such employees are qualified to carry out the activities that generate relevant income for the undertaking;
Amendment 128 #
Proposal for a directive Article 7 – paragraph 1 – point b a (new) (ba) the profitability per employee on a full time equivalent basis and per assets and the turnover on assets are not exceeding 3 times the average of the sector in the EU Member State;
Amendment 129 #
Proposal for a directive Article 7 – paragraph 1 – point c – introductory part (c)
Amendment 130 #
Proposal for a directive Article 7 – paragraph 1 – point c – point i – point 2 (2) are
Amendment 131 #
Proposal for a directive Article 7 – paragraph 1 – point c – point i – point 4 Amendment 132 #
Proposal for a directive Article 7 – paragraph 1 – point c – point i – point 4 (4) are not employees of an enterprise that is not an associated enterprise and do not perform the function of director or equivalent of other enterprises that are not associated enterprises, except under Article 5(1), point (a);
Amendment 133 #
Proposal for a directive Article 7 – paragraph 1 – point c – point ii Amendment 134 #
Proposal for a directive Article 7 – paragraph 1 – point c – point ii (ii) the majority of the full-time equivalent employees of the undertaking
Amendment 135 #
Proposal for a directive Article 7 – paragraph 1 – point c – point ii (ii)
Amendment 136 #
Proposal for a directive Article 7 – paragraph 1 – point c – point ii a (new) (iia) the profitability per employee and per assets, the productivity per employee and the turnover on assets are not exceeding three times the average of the sector in the EU. The European Commission shall estimate this average based on data provided by the undertakings the previous year.
Amendment 137 #
Proposal for a directive Article 7 – paragraph 2 – introductory part 2. Undertakings that fulfil the conditions referred to in paragraph 1, points (b) and (c), shall accompany their
Amendment 138 #
Proposal for a directive Article 7 – paragraph 2 – point a a (new) (aa) taxes paid in the Union, disaggregated by country and type of tax;
Amendment 139 #
Proposal for a directive Article 7 – paragraph 2 – point f (f) outsourced business activities, such as accounting, sales, marketing, logistics, consulting etc.;
Amendment 140 #
Proposal for a directive Article 7 – paragraph 2 – point g (g) bank account number, any mandates granted to access the bank account and to use or issue payment instructions and evidence of the account’s activity
Amendment 141 #
Proposal for a directive Article 7 – paragraph 2 – point g a (new) (ga) an overview of the structure of the undertaking and associated enterprises and any significant outsourcing arrangements, including the rationale behind the structure;
Amendment 142 #
Proposal for a directive Article 7 – paragraph 2 – point g a (new) (ga) profitability per employee and per assets, the productivity per employee and the turnover on assets;
Amendment 143 #
Proposal for a directive Article 7 – paragraph 2 – point g a (new) (ga) profitability and productivity rates as indicated in Article 6(1);
Amendment 144 #
Proposal for a directive Article 7 – paragraph 2 – point g b (new) (gb) entire entity structure from assets held to ultimate beneficial owners as well as a justification for this structure;
Amendment 145 #
Proposal for a directive Article 7 – paragraph 2 – point g b (new) (gb) profitability per employee and per asset class;
Amendment 146 #
Proposal for a directive Article 7 – paragraph 2 – point g b (new) (gb) list of core income generating activities;
Amendment 147 #
Proposal for a directive Article 7 – paragraph 2 – point g c (new) (gc) a summary report of the documentary evidence submitted under this paragraph. This summary shall also include: - a brief description of the nature of the activities of the undertaking; - the number of employees on a full- time equivalent basis; - the amount of profit or loss before and after taxes.
Amendment 148 #
Proposal for a directive Article 7 – paragraph 2 – point g c (new) (gc) entity structure and justification.
Amendment 149 #
Proposal for a directive Article 8 – paragraph 1 a (new) 1a. Member States may consider for a period of three years that the undertaking is presumed to have minimum substance as set out in paragraph 1 on the condition that the factual and legal circumstances of the undertaking remain unchanged during this period.
Amendment 150 #
Proposal for a directive Article 9 – paragraph 1 1. Member States shall take the
Amendment 151 #
Proposal for a directive Article 9 – paragraph 2 – point a (a) a document allowing to ascertain the
Amendment 152 #
Proposal for a directive Article 9 – paragraph 2 – point a (a) a document allowing to ascertain the commercial rationale behind the establishment of the undertaking
Amendment 153 #
Proposal for a directive Article 9 – paragraph 2 – point b (b) information about the employee profiles,
Amendment 154 #
Proposal for a directive Article 9 – paragraph 2 – point b (b) information about the full-time, part-time, and freelance employee profiles, including the level of their experience, their decision-making power in the overall organisation, role and position in the organisation chart, the type of their employment contract, their qualifications and duration of employment;
Amendment 155 #
Proposal for a directive Article 9 – paragraph 3 a (new) 3a. The Member State shall consider the request for the rebuttal of the presumption within a period of 6 months after the introduction of the request and it shall be considered as accepted in the absence of answer from the Member State after the 6-month period.
Amendment 156 #
Proposal for a directive Article 9 – paragraph 4 4. After the end of the tax year for which the undertaking rebutted the presumption successfully, in accordance with paragraph 3, a Member State may consider for a period of
Amendment 157 #
Proposal for a directive Article 10 – paragraph 1 1. A Member State shall take the appropriate measures to allow an undertaking that
Amendment 158 #
Proposal for a directive Article 10 – paragraph 1 1. A Member State shall take the
Amendment 159 #
Proposal for a directive Article 10 – paragraph 2 2. A Member State may grant that exemption for one tax year if the undertaking provides sufficient and objective evidence that its interposition does not lead to a tax benefit for its beneficial owner(s) or the group as a whole, as the case may be. That evidence shall include information about the structure of the group and its activities, including a list of its employees working on full-time equivalence. That evidence shall allow to compare the amount of overall tax due by the beneficial owner(s) or the group as a whole, as the case may be, having regard to the interposition of the undertaking, with the amount that would be due under the same circumstances in the absence of the undertaking.
Amendment 160 #
Proposal for a directive Article 10 – paragraph 3 3. After the end of the tax year for which an exemption was granted in accordance with paragraph 2, a Member State may extend the validity of the exemption for
Amendment 161 #
Proposal for a directive Article 10 – paragraph 3 a (new) 3a. The Member State shall consider the exemption request within a period of 6 months after the introduction of the request and it shall be considered as accepted in the absence of answer from the Member State after the 6-month period.
Amendment 162 #
Proposal for a directive Article 11 – paragraph 2 – introductory part 2. The Member State of the undertaking’s shareholder(s) shall tax the relevant income or assets of the undertaking in accordance with its national law as if it had directly accrued to the undertaking’s shareholder(s) and deduct any tax paid on such income at the Member State of the undertaking, where the following conditions are met:
Amendment 163 #
Proposal for a directive Article 11 – paragraph 2 – subparagraph 2 Where the payer is not resident for tax purposes in a Member State, the Member State of the undertaking’s shareholder(s) shall tax the relevant income or assets accruing to the undertaking in accordance with its national law as if it had directly accrued to the undertaking’s shareholder(s), without prejudice to any agreement or convention that provides for the elimination of double taxation of income, and where applicable, capital, in force between the Member State of the undertaking’s shareholders and the third country jurisdiction of the payer;
Amendment 164 #
Proposal for a directive Article 11 – paragraph 2 – subparagraph 3 Where the undertaking’s shareholder(s) is not resident for tax purposes in a Member State, the Member State of the payer of this income shall apply a withholding tax
Amendment 165 #
Proposal for a directive Article 12 – paragraph 1 – introductory part Where an undertaking does not have minimum substance for tax purposes in the Member State where it is resident for tax purposes, that Member State shall
Amendment 166 #
Proposal for a directive Article 12 – paragraph 1 – point a Amendment 167 #
Proposal for a directive Article 12 – paragraph 1 – point b Amendment 168 #
Proposal for a directive Article 12 – paragraph 1 – point b Amendment 169 #
Proposal for a directive Article 12 – paragraph 1 – point b (b) grant a certificate of tax residence which prescribes that the undertaking is not entitled to the benefits of agreements and conventions that provide for the elimination of double taxation of income, and where applicable, capital, and of international agreements with a similar purpose or effect and of Articles 4, 5 and 6 of Directive 2011/96/EU and Article 1 of Directive 2003/49/EC and cannot participate in any public tenders in the Member State.
Amendment 170 #
Proposal for a directive Article 12 – paragraph 1 a (new) When denying such certificate, the Member State shall issue an official statement duly justifying such decision and prescribing that the undertaking is not entitled to the benefits of agreements and conventions that provide for the elimination of double taxation of income, and, where applicable, capital, or of international agreements with a similar purpose or effect and of Articles 4, 5 and 6 of Directive 2011/96/EU and Article 1 of Directive 2003/49/EC.
Amendment 171 #
Proposal for a directive Article 12 – paragraph 1 a (new) In cooperation with Member States, the Commission shall ensure that those tax consequences are well articulated in relation to existing bilateral tax conventions with third countries so that they receive the information on the presumed shell-companies.
Amendment 172 #
Proposal for a directive Article 12 – paragraph 1 a (new) When denying a request for a certificate of tax residence, the Member State shall issue an official document duly justifying such decision and prescribing that the undertaking is not entitled to the benefits of agreements and conventions that provide for the elimination of double taxation of income, and, where applicable, capital, or of international agreements with a similar purpose or effect and of Articles 4, 5 and 6 of Directive 2011/96/EU and Article 1 of Directive 2003/49/EC.
Amendment 173 #
Proposal for a directive Article 13 – paragraph 1 – point 2 Directive 2011/16/EU Article 8ad – paragraph 2 – subparagraph 1 a (new) Such information may also be used for the assessment and enforcement of other taxes and duties covered by Article 2 of Council Directive 2010/24/EU of 16 March 2010 concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures, or for the assessment and enforcement of compulsory social security contributions and cross-border labour law obligations.
Amendment 174 #
Proposal for a directive Article 13 – paragraph 1 – point 2 Amendment 175 #
Proposal for a directive Article 13 – paragraph 1 – point 2 Directive 2011/16/EU Article 8ad – paragraph 4 – point g (g) summary of the declaration and, where appropriate the evidence provided by the undertaking in accordance with Article 7(2).
Amendment 176 #
Proposal for a directive Article 13 – paragraph 1 – point 2 Directive 2011/16/EU Article 8ad – paragraph 6 a (new) 6a. Where the competent authority of a Member State pursuant to paragraph 1, 2 or 3 identifies other Member States likely to be concerned by the reporting of the undertaking, the communication referred to in those paragraphs shall include a specific alert to those Member States deemed concerned.
Amendment 177 #
Proposal for a directive Article 13 – paragraph 1 – point 2 Directive 2011/16/EU Article 8ad – paragraph 9 Amendment 178 #
Proposal for a directive Article 13 – paragraph 1 – point 2 a (new) Directive 2011/16/EU Article 16 – paragraph 1 – subparagraph 2 (2a) in Article 16(1), the first subparagraph is replaced by the following: ‘Such information may also be used for the assessment and enforcement of other taxes and duties covered by Article 2 of Council Directive 2010/24/EU of 16 March 2010 concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures, or for the assessment and enforcement of compulsory social security contributions
Amendment 179 #
Proposal for a directive Article 13 – paragraph 1 – point 4 Directive 2011/16/EU Article 21 – paragraph 5 – subparagraph 4 a (new) The competent authorities performing labour inspections and social security assessment shall have access to the information recorded under Article 8ad (1), (2) and (3) when this information is relevant for the assessment and enforcement of compulsory social security contributions and cross-border labour law obligations.
Amendment 180 #
Proposal for a directive Article 13 – paragraph 1 – point 4 Directive 2011/16/EU Article 21 – paragraph 5 – subparagraph 4 a (new) The competent authorities performing labour inspections and social security assessment shall have access to the information recorded under Article 8ad (1), (2) and (3) when this information is relevant for the assessment and enforcement of compulsory social security contributions and cross-border labour law obligations.
Amendment 181 #
Proposal for a directive Article 14 – paragraph 2 Member States shall ensure that those penalties include an administrative pecuniary sanction of at least
Amendment 182 #
Proposal for a directive Article 14 – paragraph 2 Member States shall ensure that those penalties include an administrative pecuniary sanction of at least 2,5% of the undertaking’s
Amendment 183 #
Proposal for a directive Article 14 – paragraph 2 Member States shall ensure that those penalties include an administrative pecuniary sanction of at least 5% of the undertaking’s turnover in the relevant tax year, if the undertaking that is required to report pursuant to Article 6 does not
Amendment 184 #
Proposal for a directive Article 14 – paragraph 2 Member States shall ensure that those penalties include an administrative pecuniary sanction of at least 5% of the undertaking’s turnover or assets in the relevant tax year, if the undertaking that is required to report pursuant to Article 6 does not comply with such requirement for a tax year within the prescribed deadline or makes a false declaration in the tax return under Article 7.
Amendment 186 #
Proposal for a directive Article 15 – paragraph 1 Where the competent authority of one Member State has reason to believe that an undertaking which is resident for tax purposes in another Member State has not met its obligations under this Directive, the former Member State may request the competent authority of the latter to conduct a joint tax audit of the undertaking following the procedures laid out in Article 12a of Council Directive (EU) 2021/514 of 22 March 2021 amending Directive 2011/16/EU on administrative cooperation in the field of taxation.
Amendment 187 #
Proposal for a directive Article 15 – paragraph 1 Where the competent authority of one Member State has reason to believe that an undertaking which is resident for tax purposes in another Member State has not met its obligations under this Directive, the former Member State may request the competent authority of the latter to conduct a joint tax audit of the undertaking based on Article 12a of Council Directive (EU) 2021/514.
Amendment 188 #
Proposal for a directive Article 15 – paragraph 1 Where the competent authority of one Member State has reason to believe that an undertaking which is resident for tax purposes in another Member State has not met its obligations under this Directive, the former Member State may, upon detailing of such reasons, request the competent authority of the latter to conduct a tax audit of the undertaking.
Amendment 189 #
Proposal for a directive Article 15 – paragraph 2 Amendment 190 #
Proposal for a directive Article 15 – paragraph 2 Amendment 191 #
Proposal for a directive Article 16 – paragraph 1 – point f (f) number of audits to undertakings that meet the conditions laid down in Article 6(1), broken down into joint audits and regular audits,
Amendment 192 #
Proposal for a directive Article 16 – paragraph 1 – point f (f) number of audits and joint audits to undertakings that meet the conditions laid down in Article 6(1),
Amendment 193 #
Proposal for a directive Article 17 – paragraph 1 1.
Amendment 194 #
Proposal for a directive Article 17 – paragraph 1 1.
Amendment 195 #
Proposal for a directive Article 17 – paragraph 1 1. By 31 December 2028, the Commission shall present a report to the
Amendment 196 #
Proposal for a directive Article 17 – paragraph 1 a (new) 1 a. By 31 December 2024, the Commission shall present a report on tax related reporting obligations for undertakings in the Union legislation. Where relevant this report shall be accompanied by legislative amendments. to streamline reporting obligations.
Amendment 197 #
Proposal for a directive Article 17 – paragraph 2 2. When drawing up the report, the Commission shall take into account the information communicated by the Member States pursuant to Article 1
Amendment 198 #
Proposal for a directive Article 17 a (new) Article 17a Review 1. By ... [5 years after the entry into force of this Directive], the Commission shall review the application of this Directive and report to the Council on its operation. The report shall address whether there is a need to amend this Directive in view to increase the effectiveness this directive. 2. The report shall in particular assess the impact of this Directive on tax revenues in Member States, on tax administration’s capacities, and, amongst others, the need to expand the application of Article 6(2) and the need to review Articles 6 and 7.
Amendment 199 #
Proposal for a directive Article 18 – paragraph 1 – introductory part 1. Member States shall adopt and publish, by [3
Amendment 200 #
Proposal for a directive Article 18 – paragraph 1 – subparagraph 1 They shall apply those provisions from [1 January 202
Amendment 31 #
Proposal for a directive Recital 1 (1) Ensuring fair and effective taxation in the internal market and tackling tax avoidance and evasion remain high political priorities in the Union. While recent years saw important progress in this area, especially with the adoption of Council Directive 2016/116410 concerning anti-tax avoidance and the expansion of scope of Council Directive 2011/16/EU11 on administrative cooperation in the field of taxation, further measures are necessary to tackle specifically identified practices of tax avoidance and evasion including through the misuse of shell entities, which are not fully captured by the existing legal framework of the Union. In this regard, the Pandora Papers’ revelations reported on the creation of shell companies with the purpose of moving money between bank accounts, avoiding taxes and carrying out financial crimes, including money laundering, and circumventing EU sanctions for Russian oligarchs. In particular, multinational groups often create undertakings with no minimal substance, to lower their overall tax liability, including by shifting profits away from certain high-tax Member States in which they carry out economic activity and create value for their business. This proposal complements the progress achieved in corporate transparency through requirements concerning beneficial ownership information introduced by the anti-money laundering framework, which address situations where undertakings are created to conceal true ownership, whether of the undertakings themselves or of the assets they manage and own, such as real estate or property of high value.
Amendment 32 #
Proposal for a directive Recital 1 a (new) (1a) The lack of an international instrument on the misuse of shell entities for tax purposes creates a significant loophole in the global efforts to combat tax fraud and evasion and aggressive tax planning. The absence of such an instrument confirms the importance of the legal standards laid down in this Directive. It is essential to guarantee that the obligations provided for in this Directive are proportionate, effective and neutral from a taxation point of view, preserving the competitiveness of European undertakings.
Amendment 33 #
Proposal for a directive Recital 1 a (new) (1a) The lack of an international instrument on the misuse of shell entities for tax purposes creates potential compliance, defence and overall tax costs for businesses that genuinely use entities with less substance to structure their investments according to geography, business divisions, or markets.
Amendment 34 #
Proposal for a directive Recital 1 b (new) (1b) The misuse of shell entities for tax purposes leads to a reduction in tax liability and the tax loss within the Union, which is estimated at around EUR 20 billion per year. It is therefore essential that this Directive set ambitious and proportionate standards for the definition of common minimum substance requirements, for the improvement of exchange of information between national tax administrations and for the dissuasion of the use of shell entities promoted by certain intermediaries.
Amendment 35 #
Proposal for a directive Recital 2 (2) It is acknowledged that undertakings with no minimal substance may be set up in a Member State with the main objective of obtaining a tax advantage, notably by eroding the tax base of another Member State. While some Member States have developed a legislative or administrative framework to protect their tax base from such schemes, the relevant rules often have a limited effect, as they only apply in the territory of a single Member State and do not effectively capture situations that involve more than one Member State. Furthermore, the national rules that apply in this field significantly differ across the Union while some Member States have no rules at all, to tackle the misuse of undertakings with no or minimal substance for tax purposes. It is therefore important to create a Union- wide legal approach to ensure a framework for loyal and fair tax competition and safeguard the integrity of the internal market.
Amendment 36 #
Proposal for a directive Recital 2 a (new) (2a) This Directive should be implemented consistently with other areas of the EU acquis. The same artificial constructions used for the purpose of obtaining a tax advantage can also be relied upon to minimise or evade social security and cross-border labour law obligations. In particular, EU posting and social security rules require substance and evidence of habitual work in the Member State of alleged establishment for an undertaking to enjoy the benefits of free provision of services.
Amendment 37 #
Proposal for a directive Recital 2 a (new) (2a) This Directive should be implemented consistently with other areas of the EU acquis. The same artificial constructions used for the purpose of obtaining a tax advantage can also be relied upon to minimise or evade social security and cross-border labour law obligations. In particular, EU posting and social security rules require substance and evidence of habitual work in the Member State of alleged establishment for an undertaking to enjoy the benefits of free provision of services.
Amendment 38 #
Proposal for a directive Recital 3 Amendment 39 #
Proposal for a directive Recital 3 a (new) (3a) Taking into consideration the real risk of low capacity of Member States’ tax administrations and the risk that the existing administrative cooperation may at this point be inadequate for the purpose of this Directive, it is of utmost importance that the capacities of tax administrations be reinforced and that the exchange of information be improved across the Union. It is necessary that Member States share the relevant information to which they have access, implement systems supporting the exchange of that information and as a final step, enforce proposed sanctions against non-complying entities. In support of this Directive, the Commission should suggest specific activities within the Fiscalis programme.
Amendment 40 #
Proposal for a directive Recital 4 (4) To ensure a comprehensive approach, the rules should apply to all undertakings in the Union which are taxable in a Member State, regardless of their legal form and status
Amendment 41 #
Proposal for a directive Recital 4 (4) To ensure a comprehensive and proportionate approach, the rules should apply to
Amendment 42 #
Proposal for a directive Recital 4 (4) To ensure a comprehensive approach, the rules should apply to all undertakings in the Union which are taxable in a Member State, regardless of their legal form and status, as long as they have their residence for tax purposes in a Member State and are eligible to obtain a certificate of tax residence in that Member State. This broad scope is, therefore, mitigated by a set of standards regarding the economic activity of the undertakings comprehended in this Directive.
Amendment 43 #
Proposal for a directive Recital 4 a (new) (4a) To ensure the effective implementation of the Directive, the rules must be proportional to avoid excessive administrative burden on companies with legitimate activities, especially SMEs, while avoiding that shell-entities fall through the cracks; the quality and completeness of data are therefore essential in order to reap the greatest benefits from this Directive.
Amendment 44 #
Proposal for a directive Recital 4 b (new) (4b) Given the increased flow of reported-information this Directive will generate in addition to the data currently transmitted by companies, Member States should ensure that national tax administrations have the capabilities to process that information in the most efficient way.
Amendment 45 #
Proposal for a directive Recital 5 (5) To ensure the proper functioning of the internal market, the proportionality and effectiveness of potential rules, it would be desirable to limit their scope to undertakings which are at risk of being found to lack minimal substance and used with the main objective of obtaining a tax advantage. It would therefore be important to establish a gateway criterion, in the form
Amendment 46 #
Proposal for a directive Recital 5 (5) To ensure the proper functioning of the internal market, the proportionality and effectiveness of potential rules, it would be desirable to limit their scope to undertakings which are at risk of being found to lack minimal substance and used
Amendment 47 #
Proposal for a directive Recital 5 (5) To ensure the proper functioning of the internal market, the proportionality and effectiveness of potential rules, it would be desirable to limit their scope to undertakings which are at risk of being found to lack minimal substance and used with the main objective of obtaining a tax advantage. It would therefore be important to establish a gateway criterion, in the form of a set of
Amendment 48 #
Proposal for a directive Recital 6 Amendment 49 #
Proposal for a directive Recital 6 Amendment 50 #
Proposal for a directive Recital 6 (6) It
Amendment 51 #
Proposal for a directive Recital 6 (6) It would be fair to exclude from the envisaged rules undertakings whose activities are subject to an adequate level of transparency and tax supervision and therefore do not present a risk of lacking substance for tax purposes. Companies having a transferable security admitted to trading or listed on a regulated market or multilateral trading facility as well as certain financial undertakings which are heavily regulated in the Union, directly or indirectly, and subject to increased transparency requirements and supervision, should equally be excluded
Amendment 52 #
Proposal for a directive Recital 8 (8) To facilitate implementation of this Directive, undertakings comprehended in the scope of this Directive and at risk of being found to lack substance and used with the main objective of obtaining a tax advantage should declare, in their annual tax return, that they possess a minimum level of resources
Amendment 53 #
Proposal for a directive Recital 8 (8) To facilitate implementation of this Directive, undertakings at risk of being found to lack substance and used with the main objective of obtaining a tax advantage should declare, in their annual tax return, that they possess a minimum level of resources such as people and premises in the Member State of tax residence and provide documentary evidence if that is the case. The requirement relating to premises in a Member State has to take into account the growing prevalence of remote working, for which legitimate enterprises downscale their premises and move away from retaining exclusive premises. While it is recognised that different activities may require a different level or type of resources, a common minimum level of resources would be expected under all circumstances. This assessment should solely aim at identifying the substance of undertakings for tax purposes and does not question the role that “trust or company service providers”, as defined in Directive (EU) 2015/849 of the European Parliament and of the Council12, have in the identification of money laundering, its predicate offences and terrorist financing. Conversely, the absence of a minimum level of resources may be considered to
Amendment 54 #
Proposal for a directive Recital 9 (9) To ensure tax certainty and stability, it is imperative to lay down common rules on the content of undertakings’ declarations. Undertakings that pass the gateway criterion and are consequently subject to reporting requirements should be presumed not to have sufficient substance for tax purposes if they also declare not to possess one or more of the elements that cumulatively constitute a minimum level of substance, or do not provide the required supporting evidence. Undertakings that declare to possess all the elements of the minimum level of substance and provide the required supporting documentation should instead be presumed to have minimal substance for tax purposes and should incur no further obligations and consequences under this Directive. This, however, should be without prejudice to any applicable law and the right of the administration to perform an audit, including on the basis of the supporting documentation
Amendment 55 #
Proposal for a directive Recital 9 (9) To ensure tax certainty, it is imperative to lay down common rules on the content of undertakings’ declarations. Undertakings that pass the gateway criterion and are consequently subject to reporting requirements should be presumed not to have sufficient substance for tax purposes if they also declare not to possess one
Amendment 56 #
Proposal for a directive Recital 10 (10) It is
Amendment 57 #
Proposal for a directive Recital 10 (10) It is recognised that whether an undertaking is actually performing economic activities for tax purposes or serves mainly tax avoidance or evasion purposes is ultimately a matter of facts and circumstances. This should be assessed on a case by case basis in respect of each specific undertaking. Therefore, undertakings presumed not to have minimal substance for tax purposes should be entitled to prove the contrary, including to prove that they do not serve primarily tax objectives, and rebut such presumption. After fulfilling their reporting obligations under this Directive, they should provide additional information to the administration of the Member State where they reside for tax purposes. While they may provide any additional information that they deem appropriate, it is essential to set common requirements of what may constitute appropriate additional evidence and should thus be required in all cases. Where the Member State, based on such additional evidence, considers that an undertaking has rebutted a presumption of lack of substance in a satisfactory manner, it should be able to issue a decision to certify that the undertaking has minimal substance for tax purposes in accordance with this Directive. Such decision may remain valid for the period during which factual and legal circumstances of the undertaking remain unchanged and up to
Amendment 58 #
Proposal for a directive Recital 11 (11) As the objective of this Directive is to prevent tax avoidance and evasion
Amendment 59 #
Proposal for a directive Recital 11 (11) As the objective of this Directive is to prevent tax avoidance and evasion that are likely to flourish through actions by undertakings without minimal substance, and in order to ensure tax certainty and enhance the proper functioning of the internal market, it is paramount to provide for a possibility of exemptions for undertakings which meet the gateway criterion but yet whose interposition has no actual advantageous impact on the overall tax position of the undertaking’s group or of the beneficial owner(s). For that reason, such undertakings should be entitled to request the administration of the Member State, where they reside for tax purposes, to issue a decision which exempts them from complying with the proposed rules altogether and upfront. Such exemption should also be limited in time, to allow the administration to verify on a regular basis that the factual and legal circumstances justifying the exemption decision remain valid. At the same time a potential extended duration of such decision will allow to limit the resources allocated to cases that should be exempt from the scope of the Directive. A Member State administration may decide to award the exemption without requiring the undertaking to perform the substance test provided that it is sufficiently confident that the award of said exemption is justified.
Amendment 60 #
Proposal for a directive Recital 11 (11) As the objective of this Directive is to prevent tax avoidance and evasion that are likely to flourish through actions by undertakings without minimal substance, and in order to ensure tax certainty and enhance the proper functioning of the internal market, it is paramount to provide for a possibility of exemptions for undertakings which meet the gateway criterion, but fail on only one of the minimum substance criteria, yet whose interposition has no actual advantageous impact on the overall tax position of the undertaking’s group or of the beneficial owner(s). For that reason, such undertakings should be entitled to request the administration of the Member State, where they reside for tax purposes, to issue a decision which exempts them from complying with the proposed rules altogether and upfront. Such exemption should also be limited in time, 3 years, to allow the administration to verify on a regular basis that the factual and legal circumstances justifying the exemption decision remain valid. At the same time a potential extended duration of such decision will allow to limit the resources allocated to cases that should be exempt from the scope of the Directive.
Amendment 61 #
Proposal for a directive Recital 13 (13) To ensure effectiveness of the proposed framework, it is necessary to establish appropriate tax consequences for undertakings that do not have minimal substance for tax purposes. Undertakings that have crossed the gateway criterion and are presumed to be lacking substance for tax purposes while, additionally, have not provided evidence to the contrary or evidence that they do not serve the objective of obtaining a tax advantage, should
Amendment 62 #
Proposal for a directive Recital 13 (13) To ensure effectiveness of the proposed framework, it is necessary to establish appropriate tax consequences for undertakings that do not have minimal substance for tax purposes . Undertakings that have crossed the gateway criterion and are presumed to be lacking substance for tax purposes while
Amendment 63 #
Proposal for a directive Recital 13 (13) To ensure effectiveness of the proposed framework, it is necessary to establish appropriate tax consequences for undertakings that do not have minimal substance for tax purposes. Undertakings that have crossed the gateway criterion and are presumed to be lacking substance for tax purposes while, additionally, have not provided evidence to the contrary or evidence that they do not serve the objective of obtaining a tax advantage, should not be allowed to benefit from the provisions of agreements and conventions that provide for the elimination of double taxation of income, and where applicable, capital, to which the Member State of their tax residence is a party and from any other agreements, including provisions in international agreements for the promotion and protection of investments, with equivalent purpose or effect. Such undertakings should not be allowed to benefit from Council Directive 2011/96/EU14 and Council Directive 2003/49/EC15. To this effect, those undertakings should not be entitled to a certificate of tax residence to the extent that this serves to obtain those benefits. The Member State where the undertaking is resident for tax purposes should therefore deny to issue a certificate of tax residence
Amendment 64 #
Proposal for a directive Recital 13 (13) To ensure effectiveness of the proposed framework, it is necessary to establish appropriate tax consequences for undertakings that do not have minimal substance for tax purposes. Undertakings that have crossed the gateway criterion and are presumed to be lacking substance for
Amendment 65 #
Proposal for a directive Recital 13 a (new) (13a) In order to ease the administrative burden for Member State competent authorities it is important to implement a system that is easy to operate and control. This system would provide three sequential checks for undertakings that qualify for a carve-out, meet the reporting requirements and lack minimum substance. Simultaneously, it is imperative that competent authorities have an automatic notification system in place in order to provide tax authorities with adequate information about shell companies. This provides competent authorities the possibility allocate their resources effectively in the fight for the protection of the tax base.
Amendment 66 #
Proposal for a directive Recital 13 a (new) (13a) The European Commission and Member States should make sure that these tax consequences are articulated in a consistent manner in relation to existing bilateral tax conventions concluded between Member States and third countries.
Amendment 67 #
Proposal for a directive Recital 14 a (new) (14a) With a view to ensure an effective implementation of the EU acquis and to help the fight against unfair terms and conditions of employment, the competent authorities performing labour inspections and social security assessment should have timely access to the information pointing at possible lack of substance.
Amendment 68 #
Proposal for a directive Recital 14 a (new) (14a) With a view to ensure an effective implementation of the EU acquis and to help the fight against unfair terms and conditions of employment, the competent authorities performing labour inspections and social security assessment should have timely access to the information pointing at possible lack of substance.
Amendment 69 #
Proposal for a directive Recital 14 a (new) (14a) In order not to overburden Member States' tax authorities, it is essential to limit the exchange of information to the set of information that is strictly necessary to detect tax fraud.
Amendment 70 #
Proposal for a directive Recital 15 (15)
Amendment 71 #
Proposal for a directive Recital 16 (16) In order to improve effectiveness, Member States should lay down penalties against the violation of the national rules that transpose this Directive. Such penalties should be effective, proportionate and dissuasive. To ensure tax certainty and a minimum level of coordination across all Member States, it is necessary to fix a minimum monetary penalty, also taking into account the situation of each specific undertaking. The envisaged rules rely on a self-assessment performed by the undertakings
Amendment 72 #
Proposal for a directive Recital 16 (16) In order to improve effectiveness, Member States should lay down penalties against the violation of the national rules that transpose this Directive. Such penalties should be effective, proportionate and dissuasive. To ensure tax certainty and a minimum level of coordination across all Member States, it is necessary to fix a minimum monetary penalty, also taking into account the situation of each specific undertaking. The envisaged rules rely on self-assessment by the undertakings as regards whether or not they meet the gateway criteria. To achieve effectiveness of the provisions, incentivising adequate compliance across the Union, and taking into account that a shell undertaking in one Member State may be used to erode the tax base of another Member State, it is important that any Member State has the right to request another Member State to conduct tax audits of undertakings at risk for not fulfilling minimum substance as defined in this Directive. Accordingly, to reinforce effectiveness, it is essential that the requested Member State has an obligation to carry out such audit and to
Amendment 73 #
Proposal for a directive Recital 16 (16) In order to improve effectiveness, Member States should lay down penalties against the violation of the national rules that transpose this Directive. Such penalties should be effective, proportionate and dissuasive. To ensure tax certainty and a minimum level of coordination across all Member States, it is necessary to fix a minimum monetary penalty, also taking into account the situation of each specific undertaking. The envisaged rules rely on self-assessment by the undertakings as regards whether or not they meet the gateway criteria. To achieve effectiveness of the provisions, incentivising adequate compliance across the Union, and taking into account that a shell undertaking in one Member State may be used to erode the tax base of another Member State, it is important that any Member State has the right to request another Member State to conduct joint tax audits of undertakings at risk for not fulfilling minimum substance as defined in this Directive. Accordingly, to
Amendment 74 #
Proposal for a directive Recital 17 (17) As the proper implementation and enforcement of the proposed rules in each Member State is critical for the protection of other Member States’ tax base, such implementation and enforcement should be monitored by the Commission. Member States should therefore communicate to the Commission on a regular basis, specific information, including statistics, on the implementation and enforcement in their territory of national measures adopted pursuant to this Directive. This exchange of information must be performed with high standards of data protection.
Amendment 75 #
Proposal for a directive Recital 19 a (new) (19a) The implementation of this Directive must pursue the goal of closing the window of opportunities for tax evasion and avoidance through the misuse of shell entities; this objective must be fulfilled in full respect for the highest standards of accessibility, simplification and transparency; the additional tax obligations to be imposed through the implementation of this Directive must be proportionate and do not lead to overreporting, increasing the administrative burden and the compliance costs for European businesses.
Amendment 76 #
Proposal for a directive Article 2 – paragraph 1 This Directive applies to all undertakings that are considered tax resident and are eligible to receive a tax residency certificate in a Member State including permanent establishments .
Amendment 77 #
Proposal for a directive Article 3 – paragraph 1 – point 5 (5) ‘beneficial owner’
Amendment 78 #
Proposal for a directive Article 3 – paragraph 1 – point 5 (5) ‘beneficial owner’ means
Amendment 79 #
Proposal for a directive Article 3 – paragraph 1 – point 5 (5) ‘beneficial owner’ means beneficial owner as defined in Article
Amendment 80 #
Proposal for a directive Article 3 – paragraph 1 – point 6 a (new) (6a) ‘tax benefit’ means a reduction in the obligatory liabilities of an undertaking to the government of tax residency including but not limited to corporate profit tax, withholding tax, and social contribution payments.
Amendment 81 #
Proposal for a directive Article 6 – paragraph 1 – introductory part 1. Member States shall require that undertakings meeting at least two of the following criteria to report to the competent authorities of Member States in accordance with Article 7:
Amendment 82 #
Proposal for a directive Article 6 – paragraph 1 – introductory part 1. Member States shall require that
Amendment 83 #
Proposal for a directive Article 6 – paragraph 1 – point a (a) more than
Amendment 84 #
Proposal for a directive Article 6 – paragraph 1 – point a (a) more than 75% of the revenues accruing to the undertaking in the preceding two tax years is relevant income, in accordance with Article 4 as from the entry into force of this Directive;
Amendment 85 #
Proposal for a directive Article 6 – paragraph 1 – point a (a) more than
Amendment 86 #
Proposal for a directive Article 6 – paragraph 1 – point b – point i (i) more than
Amendment 87 #
Proposal for a directive Article 6 – paragraph 1 – point b – point i (i) more than
Amendment 88 #
Proposal for a directive Article 6 – paragraph 1 – point b – point i (i) more than
Amendment 89 #
Proposal for a directive Article 6 – paragraph 1 – point b – point i a (new) (ia) more than 50% percentage of the book value of the undertaking is derived directly or indirectly from immovable property;
Amendment 90 #
Proposal for a directive Article 6 – paragraph 1 – point b – point ii (ii) at least 6
Amendment 91 #
Proposal for a directive Article 6 – paragraph 1 – point b – point ii (ii) at least
Amendment 92 #
Proposal for a directive Article 6 – paragraph 1 – point b – point ii (ii) at least
Amendment 93 #
Proposal for a directive Article 6 – paragraph 1 – point c – introductory part Amendment 94 #
Proposal for a directive Article 6 – paragraph 1 – point c – introductory part (c) in the preceding two tax years, the undertaking outsourced the administration of day-to-day operations and the decision- making on significant functions to an entity that is not an associated enterprise within the same jurisdiction as the undertaking in question.
Amendment 95 #
Proposal for a directive Article 6 – paragraph 1 – point c – introductory part (c) in the preceding two tax years, the undertaking outsourced the administration
Amendment 96 #
Proposal for a directive Article 6 – paragraph 1 – point c – introductory part (c) in the preceding two tax years, the undertaking outsourced to a third party the administration of day-to-day operations and the decision-
Amendment 97 #
Proposal for a directive Article 6 – paragraph 1 – point c – paragraph 1 An undertaking which holds assets that can generate income falling within the scope of Article 4, points (e) and (f), shall also be deemed to meet the criterion set out in point (a) of the first subparagraph, irrespective of whether income from these assets has accrued to the undertaking in the preceding two tax years, if the book value of these assets is more than
Amendment 98 #
Proposal for a directive Article 6 – paragraph 1 – point c – paragraph 1 An undertaking which holds assets that can generate income falling within the scope of Article 4, points (e) and (f), shall also be deemed to meet the criterion set out in point (a) of the first subparagraph, irrespective of whether income from these assets has accrued to the undertaking in the preceding two tax years, if the book value of these assets is more than
Amendment 99 #
Proposal for a directive Article 6 – paragraph 1 – point c – paragraph 2 An undertaking which holds assets that can generate income falling within the scope of Article 4, point (c), shall also be deemed to meet the criterion set out in point (a) of the first subparagraph, irrespective of whether income from these assets has accrued to the undertaking in the preceding two tax years, if the book value of these assets is more than
source: 735.759
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History
(these mark the time of scraping, not the official date of the change)
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