30 Amendments of Jonás FERNÁNDEZ related to 2021/0434(CNS)
Amendment 40 #
Proposal for a directive
Recital 4
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.
Amendment 45 #
Proposal for a directive
Recital 5
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 threetwo cumulative, indicative conditions, in order to conclude which undertakings are sufficiently at risk as aforementioned to justify that they be subjected to reporting requirements. A first condition should enable the identification of undertakings presumably engaged mainly in geographically mobile economic activities, as the place where such activities are actually carried out is usually more challenging to identify. Such activities normally give rise to important passive income flows. Hence, undertakings, which income consists predominantly of passive income flows would meet this condition. It should also be taken into account that entities holding assets for private use, such as real estate, yachts, jets, artworks, or equity alone, may have no income for longer periods of time, but still enable significant tax benefits by way of owning those assets. As purely domestic situations would not pose a risk for the good functioning of the internal market and would be best addressed at domestic level, a second condition should focus on undertakings engaged in cross-border activities. Engagement in cross-border activities should be established having regard, on the one hand, to the nature of the transactions of the undertaking, domestic or foreign, and on the other, to its property, given that entities that only hold assets for private, non-business, use may not engage in transactions for a considerable time. Additionally, a third condition should point out to those undertakings which have no or inadequate own resources to perform core management activities. In this regard, undertakings that do not have adequate own resources tend to engage third party providers of administration, management, correspondence and legal compliance services or enter into relevant agreements with associated enterprises for the supply of such services in order to set up and maintain a legal and tax presence. Outsourcing of certain ancillary services only, such as bookkeeping services alone, while core activities remain with the undertaking, would not suffice in itself for an undertaking to meet this condition. While such service providers might be regulated for other, non-tax purposes, their obligations for such other purposes cannot always mitigate the risk that they enable the set up and maintenance of undertakings misused for tax avoidance and evasion practices.
Amendment 51 #
Proposal for a directive
Recital 6
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 from the scope of this Directive. Pure holding undertakings which are situated in the same jurisdiction as the operational subsidiary and their beneficial owner(s) are not likely to serve the objective of obtaining a tax advantage either. Similar is the case of sub-holding undertakings which are situated in the same jurisdiction as their shareholder or ultimate parent entity. On this basis, they should also be excluded. Undertakings that engage an adequate number of persons, full-time and exclusively, in order to carry out their activities should equally not be considered to lack minimal substance. While they are not reasonably expected to pass the gateway criterion, they should be excluded explicitly for purposes of legal certainty. Exclusion from the envisaged rules should however only apply to undertakings that do not benefit from the Parent Subsidiary Directive and the Royalties and Interest Directive.
Amendment 65 #
Proposal for a directive
Recital 13 a (new)
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 76 #
Proposal for a directive
Article 2 – paragraph 1
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 79 #
Proposal for a directive
Article 3 – paragraph 1 – point 5
Article 3 – paragraph 1 – point 5
(5) ‘beneficial owner’ means beneficial owner as defined in Article 31, point (6)4, of Directive (EU) 2015/849 of the European Parliament and of the Council2003/49/EC;
Amendment 80 #
Proposal for a directive
Article 3 – paragraph 1 – point 6 a (new)
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 85 #
Proposal for a directive
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
(a) more than 750% of the revenues accruing to the undertaking in the preceding two tax years is relevant income;
Amendment 88 #
Proposal for a directive
Article 6 – paragraph 1 – point b – point i
Article 6 – paragraph 1 – point b – point i
(i) more than 6055% 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;
Amendment 92 #
Proposal for a directive
Article 6 – paragraph 1 – point b – point ii
Article 6 – paragraph 1 – point b – point ii
(ii) at least 6055% of the undertaking’s relevant income is earned or paid out via cross-border transactions;
Amendment 93 #
Proposal for a directive
Article 6 – paragraph 1 – point c – introductory part
Article 6 – paragraph 1 – point c – introductory part
Amendment 104 #
Proposal for a directive
Article 6 – paragraph 2 – introductory part
Article 6 – paragraph 2 – introductory part
2. By derogation from paragraph 1, Member States shall ensure that the undertakings falling within any of the following categories are not subject to requirements of Article 7, unless they benefit from the provisions of either Directive 2011/96/EU or Directive 2003/49/EC:
Amendment 107 #
Proposal for a directive
Article 6 – paragraph 2 – point c
Article 6 – paragraph 2 – point c
Amendment 108 #
Proposal for a directive
Article 6 – paragraph 2 – point d
Article 6 – paragraph 2 – point d
Amendment 113 #
Proposal for a directive
Article 6 – paragraph 2 – point e
Article 6 – paragraph 2 – point e
Amendment 119 #
Proposal for a directive
Article 6 – paragraph 2 a (new)
Article 6 – paragraph 2 a (new)
Amendment 121 #
Proposal for a directive
Article 7 – paragraph 1 – introductory part
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 yearwithin the scope of this Directive in accordance with Article 2 declare in their annual tax return, for each tax year: (a) whether they fall within any of the categories laid down in Article 6(2), indicating which one; (b) if the undertaking does not fall within any of the categories laid down in Article 6(2), whether they meet the criteria laid down in Article 6(1) in that year; (c) if the undertaking meets the criteria laid down in Article 6(1), whether they meet the following indicators of minimum substance:.
Amendment 124 #
Proposal for a directive
Article 7 – paragraph 1 – point a a (new)
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 128 #
Proposal for a directive
Article 7 – paragraph 1 – point b a (new)
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 132 #
Proposal for a directive
Article 7 – paragraph 1 – point c – point i – point 4
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 137 #
Proposal for a directive
Article 7 – paragraph 2 – introductory part
Article 7 – paragraph 2 – introductory part
2. Undertakings that fulfil the conditions referred to in paragraph 1, points (b) and (c), shall accompany their tax return declaration referred to in paragraph 1 with documentary evidence. The documentary evidence shall include the following information:
Amendment 140 #
Proposal for a directive
Article 7 – paragraph 2 – point g
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. such as aggregate inflows and outflows;
Amendment 141 #
Proposal for a directive
Article 7 – paragraph 2 – point g a (new)
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 145 #
Proposal for a directive
Article 7 – paragraph 2 – point g b (new)
Article 7 – paragraph 2 – point g b (new)
(gb) profitability per employee and per asset class;
Amendment 147 #
Proposal for a directive
Article 7 – paragraph 2 – point g c (new)
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 164 #
Proposal for a directive
Article 11 – paragraph 2 – subparagraph 3
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 in accordance with its national law, without prejudice to any agreement or convention that provides for the elimination of double taxation of income, and where applicable, capital, in force with the third country jurisdiction of the undertaking’s shareholder(s).
Amendment 175 #
Proposal for a directive
Article 13 – paragraph 1 – point 2
Article 13 – paragraph 1 – point 2
Directive 2011/16/EU
Article 8ad – paragraph 4 – point g
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
Article 13 – paragraph 1 – point 2
Directive 2011/16/EU
Article 8ad – paragraph 6 a (new)
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 181 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
Member States shall ensure that those penalties include an administrative pecuniary sanction of at least 5% of the underone time the tax benefit obtaking’s turnovered by the undertaking 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 7and an administrative pecuniary sanction of at least 3 times the tax benefit obtained by the undertaking in the relevant tax year, if the undertaking that is required to report pursuant to Article 6 makes a false declaration in the tax return under Article 7. These pecuniary sanctions shall be in addition to the repayment of any tax benefit obtained.
Amendment 196 #
Proposal for a directive
Article 17 – paragraph 1 a (new)
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.