17 Amendments of Luděk NIEDERMAYER related to 2016/0011(CNS)
Amendment 57 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4a) To ensure consistency with regards to treatment of permanent establishments, it is essential that Member States apply in both relevant legislation and bilateral tax treaties a common definition of permanent establishments according to the Article 5 of the OECD Model Convention on Tax and Income.
Amendment 59 #
Proposal for a directive
Recital 4 b (new)
Recital 4 b (new)
(4b) To avoid inconsistent allocation of profits to permanent establishments, Member States should follow rules for profits attributable to permanent establishment as part of the Article 7 of the OECD Model Convention on Tax and Income and align applicable legislation and bilateral treaties to those rules, when such rules are reviewed.
Amendment 71 #
Proposal for a directive
Recital 6 a (new)
Recital 6 a (new)
(6a) In the event of funding of long term infrastructure projects that are in public interest by debt to third party, where debt is higher than threshold for exemption set up by this Directive. Member States may grant exemption to third party loans funding public infrastructure projects under certain conditions, as application of proposed provisions on interest limitation in such cases would be counterproductive.
Amendment 76 #
Proposal for a directive
Recital 7 a (new)
Recital 7 a (new)
(7a) Exit tax should not be charged where the transferred assets are tangible assets generating active income. Transfers of such assets are an inevitable part of effective allocation of resources by an enterprise and are not primarily intended for tax optimization and tax avoidance, and should therefore be exempt from these provisions.
Amendment 83 #
Proposal for a directive
Recital 8
Recital 8
(8) Given the inherent difficulties in giving credit relief for taxes paid abroad, States tend to increasingly exempt from taxation foreign income in the State of residence. The unintended negative effect of this approach is however that it encourages situations whereby untaxed or low-taxed income enters the internal market and then, circulates – in many cases, untaxed - within the Union, making use of available instruments within the Union law. Switch- over clauses are commonly used against such practices. It is therefore necessary to provide for a switch-over clause which is targeted against some types of foreign income not arising from active business, for example, profit distributions, proceeds from the disposal of shares and permanent establishment profits which are tax exempt in the Union and originate in third countries. This income should be taxable in the Union, if it has been taxed below a certain level in the third country. Considering that the switch-over clause does not require control over the low-taxed entity and therefore access to statutory accounts of the entity may be unavailable, the computation of the effective tax rate can be a very complicated exercise. Member States should therefore use the statutory tax rate when applying the switch-over clause. Member States that apply the switch-over clause should give a credit for the tax paid abroad, in order to prevent double taxation.
Amendment 93 #
Proposal for a directive
Recital 11
Recital 11
(11) Hybrid mismatches are the consequence of differences in the legal characterisation of payments (financial instruments) or entities and those differences surface in the interaction between the legal systems of two jurisdictions. The effect of such mismatches is often a double deduction (i.e. deduction in both states) or a deduction of the income in one state without inclusion in the tax base of the other. To prevent such an outcome, it is necessary to lay down rules whereby one of the two jurisdictions in a mismatch should give a legal characterisation to the hybrid instrument or entity and the other jurisdiction should accept it. Although Member States have agreed guidance, in the framework of the Group of the Code of Conduct on Business Taxation, on the tax treatment of hybrid entities4 and hybrid permanent establishments5 within the Union as well as on the tax treatment of hybrid entities in relations with third countries, it is still necessary to enact binding rules. Finally, it is necessary to limit the scope of these rules to hybrid mismatches between Member States. Hybrid mismatches between Member States and third countries still need to be further examinedWhere such a mismatch arises between a Member State and a third country, proper taxation of such operation must be safeguarded by the Member State. __________________ 4 Code of Conduct (Business Taxation) – Report to Council, 16553/14, FISC 225, 11.12.2014. 5 Code of Conduct (Business Taxation) – Report to Council, 9620/15, FISC 60, 11.6.2015.
Amendment 114 #
Proposal for a directive
Article 2 – paragraph 1 – point 7 a (new)
Article 2 – paragraph 1 – point 7 a (new)
(7a) 'hybrid mismatch' means a situation between a taxpayer in one Member State and an associated enterprise, as defined under the applicable corporate tax system, in another Member State or a third country where the following outcome is attributable to differences in the legal characterisation of a financial instrument or entity: (a) a deduction of the same payment, expenses or losses occurs both in the jurisdiction Member State in which the payment has its source, the expenses are incurred or the losses are suffered and in the other jurisdiction Member State ('double deduction'); or (b) there is a deduction of a payment in the jurisdiction Member State in which the payment has its source without a corresponding inclusion of the same payment in the other jurisdiction Member State ('deduction without inclusion').
Amendment 133 #
Proposal for a directive
Article 4 – paragraph 3 a (new)
Article 4 – paragraph 3 a (new)
3a. Member States may exclude from the scope of paragraph 2 excessive borrowing costs incurred on third party loans used to fund a public infrastructure project, that last at least 10 years and are considered to be in the general public interest by a Member State.
Amendment 149 #
Proposal for a directive
Article 4 a (new)
Article 4 a (new)
Amendment 151 #
Proposal for a directive
Article 4 b (new)
Article 4 b (new)
Amendment 153 #
Proposal for a directive
Article 5 – paragraph 1 – introductory part
Article 5 – paragraph 1 – introductory part
1. A taxpayer shall be subject to tax at an amount equal to the market value of the transferred assets, at the time of exit of assets, less their value for tax purposes, in any of the following circumstances:
Amendment 156 #
Proposal for a directive
Article 5 – paragraph 1 – point a
Article 5 – paragraph 1 – point a
(a) a taxpayer transfers assets from its head office to its permanent establishment in another Member State or in a third country in so far as the Member State of the head office no longer has the right to tax the transferred assets due to the transfer;
Amendment 157 #
Proposal for a directive
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) a taxpayer transfers assets from its permanent establishment in a Member State to its head office or another permanent establishment in another Member State or in a third country in so far as the Member State of the permanent establishment no longer has the right to tax the transferred assets due to the transfer;
Amendment 159 #
Proposal for a directive
Article 5 – paragraph 1 – point d
Article 5 – paragraph 1 – point d
(d) a taxpayer transfers its permanent establishment out of a Member Stateto another Member State or to a third country in so far as the Member State of the permanent establishment no longer has the right to tax the transferred assets due to the transfer.
Amendment 171 #
Proposal for a directive
Article 5 – paragraph 7
Article 5 – paragraph 7
7. This article shall not apply to asset transfers of a temporary nature where the assets are intended to revert to the Member State of the transferor, nor to transfers of tangible assets transferred in order to generate income from active business.
Amendment 182 #
Proposal for a directive
Article 6 – paragraph 1
Article 6 – paragraph 1
1. Member States shall not exempt a taxpayer from tax on foreign income that does not arise from active business, which the taxpayer received as a profit distribution from an entity in a third country or as proceeds from the disposal of shares held in an entity in a third country or as income from a permanent establishment situated in a third country where the entity or the permanent establishment is subject, in the entity’s country of residence or the country in which the permanent establishment is situated, to a tax on profits at a statutory corporate tax rate lower than 40 percent of the statutory tax rate that would have been charged under the applicable corporate tax system in the Member State of the taxpayer. In those circumstances, the taxpayer shall be subject to tax on the foreign income with a deduction of the tax paid in the third country from its tax liability in its state of residence for tax purposes. The deduction shall not exceed the amount of tax, as computed before the deduction, which is attributable to the income that may be taxed.
Amendment 225 #
Proposal for a directive
Article 10 a (new)
Article 10 a (new)
Article 10a Hybrid mismatches related to third countries 1. To the extent that a hybrid mismatch between a Member State and a third country results in a double deduction, the Member State shall deny the deduction of such a payment, unless the third country has already done so. 2. To the extent that a hybrid mismatch between a Member State and a third country results in a deduction without inclusion, the Member State shall deny the deduction or non-inclusion of such a payment, as the case may be, unless the third country has already acted accordingly.