48 Amendments of Fabio DE MASI related to 2016/0336(CNS)
Amendment 50 #
Proposal for a directive
Recital 2
Recital 2
(2) To support the proper functioning of the internal market, the corporate tax environment in the Union should be shaped in accordance with the principle that companies pay their fair share of tax in the jurisdiction(s) where their profits are generated. It is therefore necessary to provide for mechanisms that discourage companies from taking advantage of mismatches amongst national tax systems in order to lower their tax liability. It is equally important to also stimulate growth and economic development in the internal market by facilitating cross-border trade and corporate investment. To this end, it is necessary to eliminate both double taxation and double non-taxation risks in the Union through eradicating disparities in the interaction of national corporate tax systems. At the same time, companies need an easily workable tax and legal framework for developing their commercial activity and expanding it across borders in the Union. In that context, remaining cases of discrimination should also be removed.
Amendment 64 #
Proposal for a directive
Recital 3 c (new)
Recital 3 c (new)
(3c) For unitary taxation to work as a means to end profit-shifting it needs to be global, and that implementing the CCCTB at an EU level runs the risk that current losses from EU members to the rest of world could be locked in, as could the exploitation of the rest of the world by some Member States. An EU-only approach could eliminate the incentives to profit shift within the EU, but exacerbate the incentives and opportunity to profit shift out of the EU. For this reason full- inclusion CFC rules should apply. No income arising from economic activity undertaken by the CFC should be exempted.
Amendment 70 #
Proposal for a directive
Recital 4
Recital 4
(4) Considering the need to act swiftly in order to ensure a proper functioning of the internal market by making it, on the one hand, friendlier to trade and investment and, on the other hand, more resilient to tax avoidance schemes, it is necessary to divide the ambitious CCCTB initiative into two separate proposals. At a first stage, rulesimplement the legislative proposal on a Common Corporate Tax Base (CCTB) and on a cCommon cConsolidated Corporate tTax bBase should be agreed, before addressing, at a second stage, the issue of consolidation. (CCCTB) simultaneously, as loss consolidation has potentially large and immediate revenue costs, with no likely offsetting benefits approaching anything like the same scale. Loss consolidation without a contemporary move to a unitary basis would thus be illogical, and also costly.
Amendment 73 #
Proposal for a directive
Recital 4
Recital 4
(4) Considering the need to act swiftly in orderDividing the CCCTB initiative into two ensure a proper functioning of the internal market by making it, on the one hand, friendliseparate proposals is likely to result in significant declines in corporate tax bases across the EU; if loss consolidation were to trade and investment and, on the other hand, more resilient to tax avoidance schemes, it is necessary to dividebe implemented with no switch to unitary taxation and formulary apportionment at the sambitious CCCTB initiative into two separate proposals. At a first stage, rules on a common corporate tax base she time the revenue impact would be dramatic and immediate; and any possible gains would be agreed, before addressing, at a second stage, the issue of consolidatiadual and quite likely small in comparison.
Amendment 79 #
Proposal for a directive
Recital 5
Recital 5
Amendment 85 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) For reasons of proportionality, the rules for the CC and CCCTB should in a first step only be mandatory for companies which belong to a group above a certain size. For that purpose, a size- related threshold should be fixed on the basis of the total consolidated revenue of a group which files consolidated financial statements. In addition, to ensure coherence between the two steps of the CCCTB initiative, the rules on a common base should be mandatory for companies which would be considered as a group. After a transitional period of several years, the new rules should be compulsory for all companies.
Amendment 93 #
Proposal for a directive
Recital 5 b (new)
Recital 5 b (new)
(5b) In order to put a halt to the detrimental race to the bottom in tax rates across the EU, the Commission should put forward a proposal ensuring a minimum effective corporate tax rate of 25% across Member States.
Amendment 95 #
Proposal for a directive
Recital 6
Recital 6
(6) Eligibility for the consolidated tax group should be determined in accordance with a two-part test based on (i) control (more than 250 percent of voting rights) and (ii) ownership (more than 750 percent of equity) or rights to profits (more than 750 percent of rights giving entitlement to profit). Such a test would ensure a high level of economic integration between group memberControl may also exist where there are agreements with fellow shareholders or members. Control may also be effectively exercised in certain circumstances where the parent holds a minority or none of the shares in the subsidiary. Member States should be entitled to require that undertakings not subject to control, but which are managed on a unified basis or have a common administrative, managerial or supervisory body, be included in consolidated financial statements. To guarantee the integrity of the system, the two thresholds for control and ownership or profit rights should be met throughout the tax year; otherwise, the failing company should leave the group immediately. To prevent a manipulation of the tax results through companies entering and leaving the group within a short-term, there should also be a minimum requirement of nine consecutive months for establishing group membership.
Amendment 96 #
Proposal for a directive
Recital 6
Recital 6
(6) Eligibility for the consolidated tax group should be determined in accordance with a two-part test based on (i) control (more than 250 percent of voting rights) and (ii) ownership (more than 750 percent of equity) or rights to profits (more than 750 percent of rights giving entitlement to profit). Such a test would ensure a high level of economic integration between group members. To guarantee the integrity of the system, the two thresholds for control and ownership or profit rights should be met throughout the tax year; otherwise, the failing company should leave the group immediately. To prevent a manipulation of the tax results through companies entering and leaving the group within a short-term, there should also be a minimum requirement of nine consecutive months for establishing group membership.
Amendment 104 #
Proposal for a directive
Recital 10
Recital 10
(10) The formula apportionment for the consolidated tax base should comprise threewo equally weighted factors, namely labour, assets and sales by destination. Those equally weighted factors should reflect a balanced approach to distributing taxable profits amongst the relevant Member States and should ensure that profits are taxed where they are actually earned. Labour and assets should therefore be allocated to the Member State where the labour is performed or the assets are located, and would thereby give appropriate weight to the interests of the Member State of origin, whilst sales should be allocated to the Member State of destination of the goods or services. To account for differences in the levels of wages across the Union and thus allow for a fair distribution of the consolidated tax base, the labour factor should comprise both payroll and the number of employees (i.e. each item counting for half). The asset factor, on the other hand, should comprise all fixed tangible assets, but not intangible and financial assets because of their mobile nature and the resulting risk that the rules of this Directive could be circumvented. Where, due to exceptional circumstances, the outcome of the apportionment does not fairly represent the extent of business activity, a safeguard clause should provide for an alternative method of income allocation.
Amendment 110 #
Proposal for a directive
Recital 10
Recital 10
(10) The formula apportionment for the consolidated tax base should comprise threewo equally weighted factors, namely labour, assets and sales by destination. Those equally weighted factors should reflect a balanced approach to distributing taxable profits amongst the relevant Member States and should ensure that profits are taxed where they are actually earned. Labour and assets should therefore be allocated to the Member State where the labour is performed or the assets are located, and would thereby give appropriate weight to the interests of the Member State of origin, whilst sales should be allocated to the Member State of destination of the goods or services. To account for differences in the levels of wages across the Union and thus allow for a fair distribution of the consolidated tax base, the labour factor should comprise both payroll and the number of employees (i.e. each item counting for half). The asset factor, on the other hand, should comprise all fixed tangible assets, but not intangible and financial assets because of their mobile nature and the resulting risk that the rules of this Directive could be circumvented. Where, due to exceptional circumstances, the outcomeAssets should not be included in the formula due to difficulties in accurately valuing them, and the potential for intangible and financial assets to be converted in tangible assets. The allocation formula should accurately reflect demand-side (sales) and supply- side factors (labour), and reflect the factors that generate income and the location where this income is generated. Sales and labour are the factors that generate income while assets generally do not1a; __________________ 1aFor more information ofn the apportionment does not fairly represent the extent of busCanadian model, which does not include assets in the formula, see: Mintz, J., & Smart, M. (2004). Income shifting, invess activity, a safeguard clause should provide for an alternative method of income allocation.tment, and tax competition: theory and evidence from provincial taxation in Canada. Journal of Public Economics, 88(6), 1149–1168, and Mintz, J., & Smart, M. (2004). Income shifting, investment, and tax competition: theory and evidence from provincial taxation in Canada. Journal of Public Economics, 88(6), 1149–1168.Sadiq, K (2015). Unitary Taxation of the Finance Sector: ICTD Working Paper 25)
Amendment 128 #
Proposal for a directive
Recital 17
Recital 17
(17) In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission (i) to adopt annually a list of third country company forms that are similar to the company forms listed in Annex I; (ii) to lay down detailed rules on the calculation of the labour, asset and sales factors, the allocation of employees and payroll, assets and sales to the respective factor and the valuation of assets; (iii) to adopt an act establishing a standard form of the notice to create a group; and (iv) to lay down rules on the electronic filing of the consolidated tax return, the form of the consolidated tax return, the form of the single taxpayer's tax return and the supporting documentation required. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council12 . __________________ 12 Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).
Amendment 145 #
Proposal for a directive
Article 2 – paragraph 1 – point c
Article 2 – paragraph 1 – point c
(c) it belongs to a consolidated group for financial accounting purposes with a total consolidated group revenue that exceeded EUR 7540 000 000 during the financial year preceding the relevant financial year; this threshold shall be phased out over a period of five years;
Amendment 155 #
Proposal for a directive
Article 3 – paragraph 1 – point 23
Article 3 – paragraph 1 – point 23
(23) 'consolidated tax base' means the result of adding up the tax basesconsolidated net taxable revenue of allthe group members, as calculated on a consistent accounting basis applicable to all group members in accordance with Directive 2016/xx/EU;
Amendment 166 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
1. A company that has its registered office, place of incorporation, virtual presence as laid down in Article 5 of Directive 2016/xx/EU or place of effective management in a Member State and is not, under the terms of an agreement concluded by that Member State with a third country, regarded as tax resident in that third country shall be considered resident in that Member State for tax purposes.
Amendment 170 #
Proposal for a directive
Article 4 – paragraph 5
Article 4 – paragraph 5
5. A non-resident taxpayer shall be subject to corporate tax on all income from an activity carried on through a permanent establishment in a Member Statederived from any source, whether inside or outside of the Union.
Amendment 171 #
Proposal for a directive
Article 5 – paragraph 1 – point a
Article 5 – paragraph 1 – point a
(a) it has a right to exercise more than 250 % of the voting rights; and
Amendment 173 #
Proposal for a directive
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) it has an ownership right amounting to more than 750 % of the subsidiary’s capital or it owns more than 750 % of the rights giving entitlement to profit.
Amendment 175 #
Proposal for a directive
Article 5 – paragraph 2 – point b
Article 5 – paragraph 2 – point b
(b) entitlement to profit and ownership of capital shall be calculated by multiplying the interests held, directly and indirectly, in subsidiaries at each tier. Ownership rights amounting to 750 % or less held directly or indirectly by the parent company, including rights in companies resident in a third country, shall also be taken into account in the calculation.
Amendment 182 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
Amendment 185 #
Proposal for a directive
Article 7 – paragraph 1 a (new)
Article 7 – paragraph 1 a (new)
1a. The net taxable revenue of members of a group shall be based on their financial statements that shall be adjusted so that taxable revenues shall be all cash, exchange or barter receipts arising during or due for the period less those accounted for in previous periods, those of a capital nature and those explicitly exempted from charge; less those cash, barter or exchange payments made or due for the period that were incurred for the purposes of the trade of the corporation less those accounted for in previous periods, those that represent loan or equity capital repayment and those that are explicitly exempted from deduction; less those allowances and reliefs specifically permitted and those excesses of deductions over revenues brought forward from previous periods.
Amendment 188 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
2. Where the consolidated tax base is negative, the loss shall be carried forward, for a maximum of five years, and be set off against the next positive consolidated tax base. Where the consolidated tax base is positive, it shall be apportioned in accordance with Chapter VIII.
Amendment 192 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
2. Groups shall apply a consistent and adequately documented method for recording intra-group transactions. Groups may change the method only for valid commercial reasons and only at the beginning of a tax yearAll such transactions shall be eliminated from the tax base as a result of the consolidation required by Article 7 (1).
Amendment 193 #
Proposal for a directive
Article 9 – paragraph 3
Article 9 – paragraph 3
Amendment 195 #
Proposal for a directive
Article 9 – paragraph 4
Article 9 – paragraph 4
Amendment 202 #
Proposal for a directive
Article 23 – paragraph 1 – subparagraph 1
Article 23 – paragraph 1 – subparagraph 1
Where, as a result of a business reorganisation, one or more groups, or two or more group members, become part of another group, any unrelieved losses of the previously existing group or groups shall be allocated to each of the group members in accordance with Chapter VIII and on the basis of the factors as they stand at the end of the tax year in which the business reorganisation takes place. Unrelieved losses of the previously existing group or groups shall be carried forward for futurno more than five years.
Amendment 203 #
Proposal for a directive
Article 23 – paragraph 1 – subparagraph 2
Article 23 – paragraph 1 – subparagraph 2
Where two or more group members become part of another group, no unrelieved losses of the first group shall be allocated as referred to in subparagraph 1, provided that the joint value of the asset and labour factors of the departing group members amounts to less than 20 % of the value of these two factors for the entire first group.
Amendment 205 #
Proposal for a directive
Article 23 – paragraph 2
Article 23 – paragraph 2
2. Where two or more principal taxpayers merge within the meaning of points (i) and (ii) of Article 2(a) of Council Directive 2009/133/EC15 , any unrelieved losses of a group shall be allocated to its members in accordance with Chapter VIII, on the basis of the factors as they stand at the end of the tax year in which the merger takes place. Unrelieved losses shall be carried forward for futurno more than five years. __________________ 15 Council Directive 2009/133/EC of 19 October 2009 on the common system of taxation applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States and to the transfer of the registered office of an SE or SCE between Member States (OJ L 310, 25.11.2009, p. 34).
Amendment 208 #
Proposal for a directive
Article 26 – paragraph 1
Article 26 – paragraph 1
Interest and, royalties and other financial flows paid by a group member to a recipient outside the group may be subject to a withholding tax, in accordance with the applicable rules of national law and any applicable double tax convention, in the Member State where the group member is resident for tax purposes or situated, as the case may be. The withholding tax shall be shared amongst the Member States, in accordance with Chapter VIII, using the formula applicable in the tax year in which the tax is charged.
Amendment 213 #
Proposal for a directive
Article 28 – paragraph 1 – subparagraph 1
Article 28 – paragraph 1 – subparagraph 1
The consolidated tax base shall be shared between the group members in each tax year on the basis of a formula for apportionment. In determining the apportioned share of a group member A, the formula shall take the following form, giving equal weight to the factors of sales, and labour and assets:
Amendment 217 #
Proposal for a directive
Article 28 – paragraph 1 – formula
Article 28 – paragraph 1 – formula
Amendment 219 #
Proposal for a directive
Article 28 – paragraph 1 – subparagraph 2 a (new)
Article 28 – paragraph 1 – subparagraph 2 a (new)
Share A = (1/2 (Sales^A/Sales^Group) + 1/2 (1/2(Payroll^A/Payroll^Group) + 1/2(No of employees^A/No of employees^Group))) * Con'd Tax Base
Amendment 223 #
Proposal for a directive
Article 28 – paragraph 5
Article 28 – paragraph 5
5. When determining the apportioned share of a group member, equal weight shall be given to the factors of sales, and labour and assets.
Amendment 227 #
Proposal for a directive
Article 31 – paragraph 1
Article 31 – paragraph 1
The factors used in calculating the apportioned share of a group member holding an interest in a transparent entity shall include the sales, and labour and assets of the transparent entity, in proportion to the taxpayer's participation in the profits and losses of that entity.
Amendment 229 #
Proposal for a directive
Article 34
Article 34
Amendment 233 #
Proposal for a directive
Article 35
Article 35
Amendment 235 #
Proposal for a directive
Article 36
Article 36
Amendment 238 #
Proposal for a directive
Article 38 – paragraph 4
Article 38 – paragraph 4
4. Where there is no group member in the Member State where the goods are delivered or the services are supplied, or where goods are delivered or services are supplied in a third country, the sales of goods and supplies of services shall be included in the sales factor of all group members in proportion to their labour and asset factors.
Amendment 239 #
Proposal for a directive
Article 38 – paragraph 5
Article 38 – paragraph 5
5. Where there is more than one group member in the Member State where the goods are delivered or the services are supplied, the sales shall be included in the sales factor of all group members located in that Member State in proportion to their labour and asset factors.
Amendment 241 #
Proposal for a directive
Article 39 – paragraph 1
Article 39 – paragraph 1
The Commission may adopt acts laying down detailed rules on the calculation of the labour, asset and sales factors, the allocation of employees and payroll, assets and sales to the respective factor and the valuation of assets. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 77(2).
Amendment 242 #
Proposal for a directive
Article 40 – paragraph 1
Article 40 – paragraph 1
Amendment 243 #
Proposal for a directive
Article 40 – paragraph 2
Article 40 – paragraph 2
2. The sales factor of a financial institution, as referred to in point (29)(a), (d), (e), (f), (g), (h) and (i) of Article 4 of Directive 2016/xx/EU, shall be 10 20% of its revenues in the form of interest, fees, commissions and revenues from securities, excluding value added tax, other taxes and duties. Intra-group sales shall not be included. For the purposes of Article 38(2), financial services shall be considered to be carried out, in the case of a secured loan, in the Member State in which the security is situated or, if that Member State cannot be identified, the Member State in which the security is registered. Other financial services shall be considered to be carried out in the Member State of the borrower or of the person who pays fees, commissions or other revenue. Where the borrower or the person who pays fees, commissions or other revenue cannot be identified or if the Member State in which the security is situated or registered cannot be identified, the sales shall be attributed to all group members in proportion to their labour and asset factors.
Amendment 244 #
Proposal for a directive
Article 41 – paragraph 1
Article 41 – paragraph 1
Amendment 245 #
Proposal for a directive
Article 41 – paragraph 2
Article 41 – paragraph 2
2. The sales factor of an insurance undertaking, as referred to in point (29)(b) and (c) of Article 4 of Directive 2016/xx/EU, shall be 120 % of all earned premiums, net of reinsurance, allocated investment returns transferred from the non-technical account, other technical revenues, net of reinsurance, and investment revenues, fees and commissions, excluding value added tax, other taxes and duties. For the purposes of Article 38(2), insurance services shall be considered to be carried out in the Member State of the policy holder. Other sales shall be attributed to all group members in proportion to their labour and asset factors.
Amendment 261 #
Proposal for a directive
Article 64 – paragraph 1 – subparagraph 2
Article 64 – paragraph 1 – subparagraph 2
Amendment 267 #
Proposal for a directive
Article 69 – paragraph 2
Article 69 – paragraph 2
2. Where paragraph 1 applies, the exceeding borrowing costs and EBITDA shall be calculated at the level of the group and comprise the results of all group members. The amount of EUR 3 000 000 referred to in Article 13 of Directive 2016/xx/EU shall be increased to 5 000 000.
Amendment 270 #
Proposal for a directive
Article 71
Article 71
Amendment 275 #
Proposal for a directive
Article 72 – paragraph 1
Article 72 – paragraph 1
For the purposes of this Directive, the reference to the statutory corporate tax rate that the taxpayer would have been subject to in the first subparagraph of Article 53(1) of Directive 2016/xx/EU shall not apply and shall be replaced by the average statutory corporate tax rate applicable amongst all Member States insteadan effective tax rate of 25%.