36 Amendments of Jonás FERNÁNDEZ related to 2016/0338(CNS)
Amendment 36 #
Proposal for a directive
Recital 1
Recital 1
(1) Businesses must pay their fair share of tax where they make their profits, but double taxation and double non- taxation must be avoided. Situations, in which different Member States tax the same income or capital twice can create serious tax obstacles for businesses operating cross border. They create an excessive tax burden for businesses and are one of the big obstacles to the internal market as they are likely to cause economic distortions and inefficiencies, as well as to have a negative impact on cross border investment and growth.
Amendment 41 #
Proposal for a directive
Recital 1 a (new)
Recital 1 a (new)
(1 a) On 16 December 2015, the European Parliament adopted a resolution on bringing transparency, coordination and convergence to corporate tax policies in the Union, where it called on the Commission to propose legislation to improve cross-border taxation disputes in the Union, focussing not only on cases of double taxation but also double non-taxation. It also called for clearer rules, more stringent timelines and transparency.
Amendment 45 #
Proposal for a directive
Recital 2
Recital 2
(2) Current dispute resolution procedures are too long, costly and often do not result in an agreement, with some cases receiving no acknowledgement at all. Some businesses currently accept double taxation rather than spending money and time on burdensome procedures to eliminate double taxation. For this reason, it is necessary that mechanisms available in the Union ensure the enforceable resolution of double taxation disputes and the effective and timely elimination of the double taxation at stake, with regular and effective communication to the taxpayer.
Amendment 66 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5 a) The Union has the potential to become a model and a global leader in tax transparency and coordination. The double taxation dispute resolution mechanisms should therefore also create a harmonised and transparent framework for solving double taxation issues and as such provide benefits to all taxpayers. All final decisions should be published in their entirety and be made available by the Commission in a common data format also on a centrally managed webpage.
Amendment 81 #
Proposal for a directive
Recital 11
Recital 11
(11) The Commission should review the application of this Directive after a period of five years and Member States should provide the Commission with appropriate input to support this review, including a determination of whether the Directive should continue to be applied or amended. Member States should provide the Commission with appropriate input to support this review. At the end of its review, the Commission should present a report to the European Parliament and the Council, including an assessment on extension of the scope of this Directive to cover all cross-border double taxation situations and double non-taxation, and if appropriate, an amending legislative proposal,
Amendment 88 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Any taxpayer subject to double taxation shall be entitled to submit a complaint requesting the resolution of the double taxation to each of the competent authorities of the Member States concerned within three years from the receipt of the first notification of the action resulting in double taxation, whether or not it uses the remedies available in the national law of any of the Member States concerned. The taxpayer shall indicate in its complaint to each respective competent authority which other Member States are concerned. The Commission shall host a central contact point in all languages of the Union, which is easily accessible to the public with the following updated information:
Amendment 90 #
Proposal for a directive
Article 3 – paragraph 1 – point a (new)
Article 3 – paragraph 1 – point a (new)
(a) contact information for each competent authority;
Amendment 91 #
Proposal for a directive
Article 3 – paragraph 1 – point b (new)
Article 3 – paragraph 1 – point b (new)
(b) full overview of applicable Union legislation and tax treaties;
Amendment 92 #
Proposal for a directive
Article 3 – paragraph 2
Article 3 – paragraph 2
2. The competent authorities shall acknowledge receipt of the complaint within one month from the receipt of the complaint. They shall also inform the competent authorities of the other Member States concerned on the receipt of the complaint within two weeks from the receipt of the complaint.
Amendment 100 #
Proposal for a directive
Article 3 – paragraph 3 – point a
Article 3 – paragraph 3 – point a
(a) name, address, tax identification number and other information necessary for identification of the taxpayer(s) who presented the complaint to the competent authorities and of any other taxpayer directly affected to the best of the complainant's knowledge;
Amendment 101 #
Proposal for a directive
Article 3 – paragraph 3 – point d
Article 3 – paragraph 3 – point d
Amendment 102 #
Proposal for a directive
Article 3 – paragraph 3 – point e – point iii
Article 3 – paragraph 3 – point e – point iii
(iii) a commitment by the taxpayer to respond as completely and quickly as possible to all appropriate requests made by a competent authority and provide any documentation at the request of the competent authorities with due consideration by the competent authorites for contraints of access to requested documents and external time delays;
Amendment 103 #
Proposal for a directive
Article 3 – paragraph 3 – point f
Article 3 – paragraph 3 – point f
(f) any specific additional information requested by the competent authorities relevant to the taxation dispute.
Amendment 106 #
Proposal for a directive
Article 3 – paragraph 5
Article 3 – paragraph 5
5. The competent authorities of the Member States concerned shall take a decision on the acceptance and admissibility of the complaint of a taxpayer within sixthree months of the receipt thereof. The competent authorities shall inform the taxpayers and the competent authorities of the other Member States of their decision within two weeks.
Amendment 110 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 1
Article 4 – paragraph 1 – subparagraph 1
Where the competent authorities of the Member States concerned decide to accept the complaint according to Article 3(5), they shall endeavour to eliminate the double taxation by mutual agreement procedure within two years starting from12 months of the last notification of one of the Member States’' decision on the acceptance of the complaint.
Amendment 113 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2
Article 4 – paragraph 1 – subparagraph 2
The period of two year12 months referred to in the first subparagraph may be extended by up to sixthree months at the request of a competent authority of a Member State concerned, if the requesting competent authority provides justification it in writing. That extension shall be subject to the acceptance by taxpayers and the other competent authorities.
Amendment 116 #
Proposal for a directive
Article 4 – paragraph 2 – point b
Article 4 – paragraph 2 – point b
(b) the tax chargeable on this income in one Member State is reduced by an amount equal to the tax chargeable on it in any other Member State concerned.; and
Amendment 117 #
Proposal for a directive
Article 4 – paragraph 2 – point b a (new)
Article 4 – paragraph 2 – point b a (new)
(b a) any overpaid tax is reimbursed to the taxpayer;
Amendment 119 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
3. Once the competent authorities of the Member States have reached an agreement to eliminate the double taxation within the period provided for in paragraph 1, each competent authority of the Member States concerned shall transmit this agreement to the taxpayer immediately, as a decision which is binding on the authority and enforceable by the taxpayer, subject to the taxpayer renouncing the right to any domestic remedy. That decision shall be implemented irrespective of any time limits prescribed by the national law of the Member States concerned.
Amendment 120 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
4. Where the competent authorities of the Member States concerned have not reached an agreement to eliminate the double taxation within the period provided for in paragraph 1, each competent authority of the Member States concerned shall inform the taxpayers within two weeks indicating the reasons for the failure to reach agreement and informing the taxpayer of their options for appeal, with relevant contact information for the appeal bodies.
Amendment 123 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. Where the competent authorities of the Member States concerned have not taken a decision on the complaint within sixthree months following receipt of a complaint by a taxpayer, the complaint shall be deemed to be rejected and the taxpayer shall be notified within one month of that decision.
Amendment 126 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
3. In case of rejection of the complaint, the taxpayer shall be entitled to appeal against the decision of the competent authorities of the Member States concerned in accordance with national rules. The taxpayer is entitled to make the complaint to either competent authority. The competent authority to whom the appeal is made shall inform the other competent authority of the existence of the appeal and the two competent authorities shall coordinate when processing the appeal. In the case of SMEs, the financial burden shall be borne by the initially rejecting competent authority when the appeal case is successful .
Amendment 130 #
Proposal for a directive
Article 6 – paragraph 2 – subparagraph 1
Article 6 – paragraph 2 – subparagraph 1
The Advisory Commission shall adopt a decision on the admissibility and acceptance of the complaint within sixthree months from the date of notification of the last decision rejecting the complaint under Article 5(1) by the competent authorities of the Member States concerned. By default of any decision notified in the sixthree month period, the complaint is deemed to be rejected and the taxpayer shall be notified within two weeks of that decision.
Amendment 132 #
Proposal for a directive
Article 6 – paragraph 2 – subparagraph 2
Article 6 – paragraph 2 – subparagraph 2
Where the Advisory Commission confirms the existence of double taxation and the admissibility of the complaint, the mutual agreement procedure provided for in Article 4 shall be initiated at the request of one of the competent authorities. The competent authority concerned shall notify the Advisory Commission, the other competent authorities concerned and the taxpayers of that request. The period of two year12 months provided for in Article 4(1) shall start from the date of the decision taken by the Advisory Commission on the acceptance and admissibility of the complaint.
Amendment 142 #
Proposal for a directive
Article 7 – paragraph 1 – subparagraph 3
Article 7 – paragraph 1 – subparagraph 3
If the competent authorities of all Member States concerned have failed to do so, the taxpayer may request the competent courts of each Member State to appoint the two independent persons of standing in accordance with the second and third subparagraphs. The Commission shall make contact information for the competent courts of each Member State clearly available in a central information point on its website in all official languages of the Union. The thus appointed independent persons of standing shall appoint the chair by drawing lots from the list of the independent persons who qualify as chair according to Article 8(4).
Amendment 143 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
3. The competent court shall adopt a decision according to paragraph 1 and notify it to the applicant within one month. The applicable procedure for the competent court to appoint the independent persons when the Member States fail to appoint them shall be the same as the one applicable under national rules in matters of civil and commercial arbitration when courts appoint arbitrators in cases where parties fail to agree in this respect. The competent court shall also inform the competent authorities having initially failed to set up the Advisory Commission. This Member State shall be entitled to appeal a decision of the court, provided they have the right to do so under their national law. In case of rejection, the applicant shall be entitled to appeal against the decision of the court in accordance with the national procedural rules.
Amendment 163 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
2. The Alternative Dispute Resolution Commission may differ regarding its composition and form from the Advisory Commission and apply conciliation, mediation, expertise, adjudication or any other effective and recognised dispute resolution processes or techniques to solve the dispute.
Amendment 170 #
Proposal for a directive
Article 10 – paragraph 2 – subparagraph 3
Article 10 – paragraph 2 – subparagraph 3
If the Advisory Commission is set up to deliver an opinion on the disputed rejection or admissibility of the complaint as provided for in Article 6(1), only the information referred to points (a), (d), (e) and (f) of the second subparagraph shall be set out in the Rules of Functioning.
Amendment 176 #
Proposal for a directive
Article 12 – paragraph 1 – point c
Article 12 – paragraph 1 – point c
(c) information concerns trade, business, industrial or professional secret or trade processannot be disclosed as in accordance with Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure, and Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, and all other applicable legislation;
Amendment 178 #
Proposal for a directive
Article 12 – paragraph 1 – point d
Article 12 – paragraph 1 – point d
Amendment 189 #
Proposal for a directive
Article 15 – paragraph 3 – point b
Article 15 – paragraph 3 – point b
(b) two year12 months referred to in Article 4(1).
Amendment 194 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
2. The competent authorities shall publish the full and final decision referred to in Article 14, subject to consent of each of the taxpayers concerned.
Amendment 196 #
Proposal for a directive
Article 16 – paragraph 3 – subparagraph 1
Article 16 – paragraph 3 – subparagraph 1
Amendment 199 #
Proposal for a directive
Article 16 – paragraph 3 – subparagraph 2
Article 16 – paragraph 3 – subparagraph 2
Amendment 202 #
Proposal for a directive
Article 16 – paragraph 4
Article 16 – paragraph 4
Amendment 207 #
Proposal for a directive
Article 21 a (new)
Article 21 a (new)
Article 21 a Review After a period of five years, the Commission shall, on the basis of public consultation and in the light of the discussions with competent authorities, carry out a review on the application and the scope of this Directive, including a determination of whether the Directive should continue to be applied or amended. The Commission shall submit a report to the European Parliament and the Council, including, if appropriate, an amending legislative proposal.