36 Amendments of Jonás FERNÁNDEZ related to 2020/0148(CNS)
Amendment 43 #
Proposal for a directive
Recital 2
Recital 2
(2) In the past years, the Commission has been monitoring the application and, in 2019, completed an evaluation of Directive 2011/16/EU22. While significant improvements have been made in the field of automatic exchange of information, there is still a need to improve existing provisions that relate to all forms of exchanges of information and administrative cooperation. In order to take into account the evolution of the situation with regard to tax transparency, this directive might need to be regularly updated. _________________ 22European Commission, Commission Staff Working Document, Evaluation of the Council Directive 2011/16/EU on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC, SWD(2019) 328 final.
Amendment 48 #
Proposal for a directive
Recital 6 a (new)
Recital 6 a (new)
(6a) Proper identification of taxpayers is essential to effective exchange of information between tax administrations. A European taxpayer identification number (TIN) should always be made available when required in this Directive and a European TIN should be created to provide the best means for this identification. It would allow any third party to quickly, easily and correctly identify and record TINs in cross-border relations and serve as a basis for effective automatic exchange of information between Member States tax administrations.
Amendment 50 #
Proposal for a directive
Recital 7 a (new)
Recital 7 a (new)
(7a) The mainstream digitalisation of many sectors of the economy coupled with the fast developing digital economy calls into question the suitability of the Union corporate tax models designed for brick and mortar industries, including with regard to the extent that valuation and calculation criteria could be re-invented to reflect the commercial activities of the 21st century. Although those situations highlight shortcomings that are completely different in nature, they all create obstacles which impede the proper functioning of the internal market and give rise to distortions between large companies and small and medium-sized enterprises. This directive will solve the problems of information exchange with regard to digital platforms.
Amendment 51 #
Proposal for a directive
Recital 7 b (new)
Recital 7 b (new)
(7b) Digital goods and services tend to be highly mobile and intangible and therefore more prone to suffer from aggressive tax planning practices, since many business models do not require physical infrastructure in order to carry out transactions with customers and make profits. In particular, online sellers and sellers operating via platforms currently enjoy the opportunity to make revenues that are poorly reported, hence at high risk of remaining undertaxed or not taxed at all.
Amendment 54 #
Proposal for a directive
Recital 13
Recital 13
(13) Given the digital nature and flexibility of digital platforms, the reporting obligation should extend to those platform operators that perform commercial activity in the Union but are neither residents for tax purposes, nor incorporated or managed nor have a permanent establishment in a Member State. This would ensure a level playing field among the platforms and prevent unfair competition. In order to facilitate this, foreign platforms should be required to register and report in one single Member State for the purpose of operating in the internal market, taking into account the location of their global or regional headquarter, the effective place of management as well as the existence of substantial economic activity in that chosen Member State.
Amendment 61 #
Proposal for a directive
Recital 15 a (new)
Recital 15 a (new)
(15a) This Directive should ensure that competent authorities can access data on the duration of rental contracts where short term property renting is limited in time so as to facilitate the implementation of those limitations and a control over rental price increases in the Union.
Amendment 69 #
Proposal for a directive
Recital 20
Recital 20
(20) Member States should adopt a clear and efficient legal framework to allow their tax authorities to perform joint audits of persons with cross-border activity. Joint audits are administrative enquiries conducted jointly by the competent authorities of two or more Member States, to examine a case linked to one or more persons of common or complementary interest to these Member States. Joint audits can play an important role in contributing to the better functioning of the internal market. Joint audits should be structured to offer legal certainty to taxpayers through clear procedural rules, including for mitigating the risk of double taxation. In addition to the legal framework required, Member States should provide for the conditions that facilitate the organisation of joint audits at an operational level, notably by supporting training, including linguistic training, for staff likely to perform joint audits. It is recalled that the Fiscalis programme can provide financial support in this regard.
Amendment 71 #
Proposal for a directive
Recital 21
Recital 21
(21) In order to ensure the effectiveness of the process, responses to requests for joint audits should be provided within a given timeframe. Rejections of requests should be duly justified and subject to a right of reply by the requesting Member State authority. The procedural arrangements applicable to a joint audit should be those of the Member State where the relevant audit action takes place. Accordingly, evidence collected during a joint audit should be mutually recognised by the participating Member State(s). It is equally important that the competent authorities agree on the facts and circumstances of the case and endeavour to reach an agreement on how to interpret the tax position of the audited person(s). In order to ensure that the outcome of a joint audit can be implemented in the participating Member States, the final report should have equivalent legal value to the relevant national instruments that are issued as a result of an audit in the participating Member States. Where necessary, Member States should provide the legal framework for the performance of a corresponding adjustment.
Amendment 75 #
Proposal for a directive
Recital 26
Recital 26
(26) In order to ensure uniform conditions for the implementation of Directive 2011/16/EU and in particular, for the automatic exchange of information between tax authorities, implementing powers should be conferred on the Commission to adopt a standard form, with a limited number of components, including the linguistic arrangements. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council25. The Commission is entitled to produce reports and documents, using the information exchanged in an anonymised manner, so as to take into account the taxpayers’ rights to confidentiality and in compliance with Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents. _________________ 25 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 77 #
Proposal for a directive
Recital 29 a (new)
Recital 29 a (new)
(29a) This Directive aims at limiting the exposure of the entire Union to high risks of money laundering, tax fraud and corruption, which could also threaten its security. Other tools should be proposed to also share information such as the granting of European visas and citizenship by investment or residency by investment programmes.
Amendment 79 #
Proposal for a directive
Recital 30 a (new)
Recital 30 a (new)
(30a) The Commission has announced its intention to propose a revision of this directive to allow for the exchange of information regarding crypto-assets. The Financial Action Task Force (FATF) adopted a broad definition of virtual currency and recommended incorporating within the scope of AML/CFT obligations any natural or legal person who conducts activities including exchange between crypto-assets, transfer of crypto-assets and participation in and provision of financial services related to initial coin offerings.
Amendment 80 #
Proposal for a directive
Article 1 – paragraph 1 – point 1 – point a a (new)
Article 1 – paragraph 1 – point 1 – point a a (new)
Directive 2011/16/EU
Article 3 – point 9 – point a a (new)
Article 3 – point 9 – point a a (new)
(aa) The following point is inserted in the first subparagraph: (aa) for the purpose of Articles 8a, 8aa, and 8ab, the systematic notification of new information communicated to the other Member States.
Amendment 81 #
Proposal for a directive
Article 1 – paragraph 1 – point 1 a (new)
Article 1 – paragraph 1 – point 1 a (new)
Directive 2011/16/EU
Article 3 – point 14
Article 3 – point 14
Amendment 82 #
Proposal for a directive
Article 1 – paragraph 1 – point 1 b (new)
Article 1 – paragraph 1 – point 1 b (new)
Directive 2011/16/EU
Article 3 – point 16
Article 3 – point 16
Amendment 83 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/16/EU
Article 5a – paragraph 1
Article 5a – paragraph 1
1. For the purposes of a request as referred to in Article 5, the requested information shall be deemed to be foreseeably relevant where at the time the request is made the requesting authority considers that, in accordance with its national law, there is a reasonable possibility that the requested information be relevant to the tax affairs of one or several taxpayers, whether identified by name or otherwise, and be justified for the purposes of the investigationassessing, collecting and managing taxes.
Amendment 84 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/16/EU
Article 5a – paragraph 2
Article 5a – paragraph 2
2. With the aim to demonstrate the foreseeable relevance of the requested information, the requesting competent authority shall provide the requested authority with supporting information, in particular on the tax purpose for which the information is requested and the grounds that point to the requested information as being held by the requested authority or as being in the possession or control of a person within the jurisdiction of the requested authority.
Amendment 85 #
Proposal for a directive
Article 1 – paragraph 1 – point 3 a (new)
Article 1 – paragraph 1 – point 3 a (new)
Directive 2011/16/EU
Article 6 – paragraph 4
Article 6 – paragraph 4
(3a) In article 6, paragraph 4 is amended as follows: “4. When specifically requested by the requesting authority, the requested authority shall communicate original documents provided that thie transmission of original documents is not contrary to the provisions in force in the Member State of the requested authority. ” Or. en (02011L0016-20200701)
Amendment 87 #
Proposal for a directive
Article 1 – paragraph 1 – point 3 b (new)
Article 1 – paragraph 1 – point 3 b (new)
Directive 2011/16/EU
Article 7 – paragraph 1 – subparagraph 1
Article 7 – paragraph 1 – subparagraph 1
(3b) In Article 7(1), the first subparagraph is replaced by the following: “1. The requested authority shall provide the information referred to in Article 5 as quickly as possible, and no later than sixthree months from the date of receipt of the request. ” Or. en (02011L0016-20200701)
Amendment 88 #
Proposal for a directive
Article 1 – paragraph 1 – point 4 – point a
Article 1 – paragraph 1 – point 4 – point a
Directive 2011/16/EU
Article 8 – paragraph 1 – subparagraph 3
Article 8 – paragraph 1 – subparagraph 3
Amendment 92 #
Proposal for a directive
Article 1 – paragraph 1 – point 4 – point a
Article 1 – paragraph 1 – point 4 – point a
Directive 2011/16/EU
Article 8 – paragraph 2
Article 8 – paragraph 2
2. Before 1 January 2023, Member States shall inform the Commission of at least fourll categories listed in paragraph 1 in respect of which the competent authority of each Member State shall, by automatic exchange, communicate to the competent authority of any other Member State, information concerning residents in that other Member State. The information shall concern taxable periods starting on or after 1 January 2024.
Amendment 95 #
Proposal for a directive
Article 1 – paragraph 1 – point 5 – point -a (new)
Article 1 – paragraph 1 – point 5 – point -a (new)
Directive 2011/16/EU
Article 8a – title
Article 8a – title
(-a) The title is amended as follows: “Scope and conditions of mandatory automatic exchange of information on advance cross-border rulings and advance pricing arrangements ” (This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout.) Or. en (02011L0016-20200701)
Amendment 96 #
Proposal for a directive
Article 1 – paragraph 1 – point 5 – point -a a (new)
Article 1 – paragraph 1 – point 5 – point -a a (new)
Directive 2011/16/EU
Article 8a – paragraph 3 – subparagraph 2 a (new)
Article 8a – paragraph 3 – subparagraph 2 a (new)
(-aa) In paragraph 3, the following subparagraph is added: “The competent authority shall not negotiate and agree new bilateral or multilateral advance pricing arrangements with third countries that do not permit their disclosure to competent authorities of other Member States as from 1 January 2022.”
Amendment 97 #
Proposal for a directive
Article 1 – paragraph 1 – point 5 – point b
Article 1 – paragraph 1 – point 5 – point b
Directive 2011/16/EU
Article 8a – paragraph 6 – point b
Article 8a – paragraph 6 – point b
(b) a summary of the advance cross- border ruling or advance pricing arrangement, including a description of the relevant business activities or transactions, the resulting effective tax rate of the tax payer in the requested Member State or series of transactions and any other information that could assist the competent authority in assessing a potential tax risk, withoutomitting information that could leading to the disproportionate disclosure of a commercial, industrial or professional secret or of a commercial process, or of information whose disclosure would be contrary to public policy..
Amendment 98 #
Proposal for a directive
Article 1 – paragraph 1 – point 5 a (new)
Article 1 – paragraph 1 – point 5 a (new)
Directive 2011/16/EU
Article 8aa – paragraph 2
Article 8aa – paragraph 2
(5a) In Article 8aa, paragraph 2 is replaced by the following: “2. The competent authority of a Member State where the country-by- country report was received pursuant to paragraph 1 shall, by means of automatic exchange and within the deadline laid down in paragraph 4, communicate the country-by-country report to any other Member State in which, on the basis of the information in the country-by-country report, one or more Constituent Entities of the MNE Group of the Reporting Entity are either resident for tax purposes or subject to tax with respect to the business carried out through a permanent establishment. The competent authority of a Member State where the country-by-country report was received pursuant to paragraph 1 shall also communicate the country-by- country report to the European Commission, which is responsible for the centralised register of country-by-country reports, available to its competent services. The Commission shall publish anonymised and aggregated country-by- country report statistics on an annual basis for all Member States.” Or. en (02011L0016-20200701)
Amendment 99 #
Proposal for a directive
Article 1 – paragraph 1 – point 5 b (new)
Article 1 – paragraph 1 – point 5 b (new)
Directive 2011/16/EU
Article 8ab – paragraph 14 – point h a (new)
Article 8ab – paragraph 14 – point h a (new)
(5b) In Article 8ab, paragraph 14, the following point (ha) is added: “(ha) the list of beneficiaries, which is updated on a yearly basis.”
Amendment 100 #
Proposal for a directive
Article 1 – paragraph 1 – point 6
Article 1 – paragraph 1 – point 6
Directive 2011/16/EU
Article 8ac – paragraph 2 – point h
Article 8ac – paragraph 2 – point h
(h) the Financial Account Identifier to which the Consideration is paid or credited, insofar as it is available tocollected by the Reporting Platform Operator and the competent authority of the Member State where the Seller is resident has not notified the competent authorities of all other Member States that it does not intend to use the Financial Account Identifier for this purpose;
Amendment 101 #
Proposal for a directive
Article 1 – paragraph 1 – point 6
Article 1 – paragraph 1 – point 6
Directive 2011/16/EU
Article 8ac – paragraph 2 – subparagraph 1 a (new)
Article 8ac – paragraph 2 – subparagraph 1 a (new)
The information referred to in point (a) and (b) should be made accessible to other competent authorities of Member States to deter and prosecute infringements to local and/or national law, without prejudice to the rules on tax secrecy and data protection applicable in the Member State in which the Reportable Seller is resident.
Amendment 103 #
Proposal for a directive
Article 1 – paragraph 1 – point 6
Article 1 – paragraph 1 – point 6
Directive 2011/16/EU
Article 8ac – paragraph 4 – subparagraph 2
Article 8ac – paragraph 4 – subparagraph 2
Member States shall lay down rules pursuant to which a Reporting Platform Operator may choose to register with the competent authorities of a single Member State in accordance with the rules laid down in paragraph F of Section IV of Annex V, taking into account the location of its global or regional headquarters, the effective place of management as well as the existence of substantial economic activity in that chosen Member State, in the absence of identification for VAT purposes as indicated in paragraph F of Section IV of Annex V.
Amendment 110 #
Proposal for a directive
Article 1 – paragraph 1 – point 8 – point a
Article 1 – paragraph 1 – point 8 – point a
Directive 2011/16/EU
Article 11 – paragraph 1 – subparagraph 2
Article 11 – paragraph 1 – subparagraph 2
A competent authority shall respond to a request in accordance with the first subparagraph within 30 days, to confirm its agreement or communicate its reasoned refusal to the requesting authoritydemand for complementary information to the requesting authority via a second request. The competent authority should respond to that second request within 30 days.
Amendment 114 #
Proposal for a directive
Article 1 – paragraph 1 – point 10
Article 1 – paragraph 1 – point 10
Directive 2011/16/EU
Article 12a – paragraph 3 – introductory part
Article 12a – paragraph 3 – introductory part
3. A request for a joint audit by a competent authority of a Member State may be rejected on justified grounds and, in particular, for any offor the following reasons:
Amendment 115 #
Proposal for a directive
Article 1 – paragraph 1 – point 12 – point a
Article 1 – paragraph 1 – point 12 – point a
Directive 2011/16/EU
Article 16 – paragraph 1 – subparagraph 1
Article 16 – paragraph 1 – subparagraph 1
Information communicated between Member States in any form pursuant to this Directive shall be covered by the obligation of official secrecy under the national law of the requested Member States and requesting Member State and enjoy the protection extended to similar information under the national law of the Member State which received it. Such information may be used for the assessment, administration and enforcement of the domestic laws of the Member States concerning the taxes referred to in Article 2 as well as VAT, information referred to in Article 8ac, paragraph 2, second subparagraph, and other indirect taxes..
Amendment 116 #
Proposal for a directive
Article 1 – paragraph 1 – point 13 a (new)
Article 1 – paragraph 1 – point 13 a (new)
Directive 2011/16/EU
Article 17 – paragraph 4 a (new)
Article 17 – paragraph 4 a (new)
(13a) In Article 17, the following paragraph is inserted: “4a. The possibility to refuse the provision of information referred to in paragraph 4 shall not apply if the requesting authority is able to demonstrate that the information will not be disclosed to the public and will only be used for the purpose of the assessment, management and control of the relevant tax affairs of the person or group of persons concerned by the request for information.”
Amendment 124 #
Proposal for a directive
Article 1 – paragraph 1 – point 18
Article 1 – paragraph 1 – point 18
Directive 2011/16/EU
Article 23a – paragraph 2 – subparagraph 2
Article 23a – paragraph 2 – subparagraph 2
Reports and documents produced by the Commission, referred to in the first subparagraph, may be used by the Member States only for analytical purposes, and shall not be published or made available to any other person or body without the express agreement of the Commission, in compliance with Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents.
Amendment 130 #
Proposal for a directive
Annex I
Annex I
Directive 2011/16/EU
ANNEX V – Section 1 – paragraph 3 – point b a (new)
ANNEX V – Section 1 – paragraph 3 – point b a (new)
(ba) it has revenues made in the Union exceeding EUR 100 000 over the previous calendar year.
Amendment 131 #
Proposal for a directive
Annex I
Annex I
Directive 2011/16/EU
ANNEX V – Section III – point B – paragraph 2 – point b
ANNEX V – Section III – point B – paragraph 2 – point b
(b) the Financial Account Identifier, insofar as it is available toas collected by the Reporting Platform Operator and insofar as the competent authority of the Member State where the Reportable Seller is resident has not notified the competent authorities of all other Member States that it does not intend to use the Financial Account Identifier for this purpose;
Amendment 132 #
Proposal for a directive
Annex I
Annex I
Directive 2011/16/EU
ANNEX V – Section III – point B – paragraph 3 – point b
ANNEX V – Section III – point B – paragraph 3 – point b
(b) the Financial Account Identifier, insofar as it is available toas collected by the Reporting Platform Operator and insofar as the competent authority of the Member State where the Reportable Seller is resident has not notified the competent authorities of all other Member States that it does not intend to use the Financial Account Identifier for this purpose;