26 Amendments of Isabel BENJUMEA BENJUMEA related to 2021/0434(CNS)
Amendment 33 #
Proposal for a directive
Recital 1 a (new)
Recital 1 a (new)
(1a) The lack of an international instrument on the misuse of shell entities for tax purposes creates potential compliance, defence and overall tax costs for businesses that genuinely use entities with less substance to structure their investments according to geography, business divisions, or markets.
Amendment 42 #
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. This broad scope is, therefore, mitigated by a set of standards regarding the economic activity of the undertakings comprehended in this Directive.
Amendment 50 #
Proposal for a directive
Recital 6
Recital 6
(6) It would be fairis fair and proportionate to exclude from the envisaged rules undertakings whose activities are subject to an adequate level of transparency 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.
Amendment 52 #
Proposal for a directive
Recital 8
Recital 8
(8) To facilitate implementation of this Directive, undertakings comprehended in the scope of this Directive and at risk of being found to lack substance and used with the main objective of obtaining a tax advantage should declare, in their annual tax return, that they possess a minimum level of resources such as, namely people and premises in the Member State of tax residence, and provide documentary evidence if that is the caswhen necessary and adequate. While it is recognised that different activities may require a different level or type of resources, a common minimum level of resources would be expected under all circumstances. This assessment should solely aim at identifying the substance of undertakings for tax purposes and does not question the role that “trust or company service providers”, as defined in Directive (EU) 2015/849 of the European Parliament and of the Council12, have in the identification of money laundering, its predicate offences and terrorist financing. Conversely, the absence of a minimum level of resources may be considered to indicate a lack of substance where an undertaking is already at risk of being found to lack substance for tax purposes. To ensure compatibility with relevant international standards, a common minimum level should draw on the existing Union and international standards on substantial economic activity in the context of preferential tax regimes or in the absence of corporate taxation13 , as developed in the context of the Forum on Harmful Tax Practices. It is necessary to provide for submission of documentary evidence with the tax return in support of the declaration of the undertaking that it disposes a minimum of resources. It is also necessary in order to allow the administration to form a view based on the facts and circumstances of the undertaking and decide whether to initiate an audit procedure, when such diligence is legally necessary and proportionate. __________________ 12 Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73). 13 General Secretariat of the Council, 9637/18 FISC 241 ECOFIN 555, Code of Conduct (Business Taxation), Guidance on the interpretation of the third criterion; OECD/G20 Base Erosion and Profit Shifting Project, Countering Harmful Tax Practices More Effectively, Taking into Account Transparency and Substance, Action 5: Final Report.
Amendment 54 #
Proposal for a directive
Recital 9
Recital 9
(9) To ensure tax certainty and stability, it is imperative to lay down common rules on the content of undertakings’ declarations. Undertakings that pass the gateway criterion and are consequently subject to reporting requirements should be presumed not to have sufficient substance for tax purposes if they also declare not to possess one or more of the elements that cumulatively constitute a minimum level of substance, or do not provide the required supporting evidence. Undertakings that declare to possess all the elements of the minimum level of substance and provide the required supporting documentation should instead be presumed to have minimal substance for tax purposes and should incur no further obligations and consequences under this Directive. This, however, should be without prejudice to any applicable law and the right of the administration to perform an audit, including on the basis of the supporting documentation, and possibly, arrive at a different conclusion.
Amendment 56 #
Proposal for a directive
Recital 10
Recital 10
(10) It is recognisednatural to consider that whether an undertaking is actually performing economic activities relevant for tax purposes or serves mainly tax avoidance or evasion purposes, but such evaluation is ultimately a matter of facts and circumstances. This should be assessed on a case by case basis in respect of each specific undertaking. Therefore, undertakings presumed not to have minimal substance for tax purposes should be entitled to prove the contrary, including to prove that they do not serve primarily tax objectives, and rebut such presumption. After fulfilling their reporting obligations under this Directive, they should provide additionalthe necessary information to the administration of the Member State where they reside for tax purposes, in accordance with the national legal tax framework. While they may provide any additional information that they deem appropriate, it is essential to set common requirements of what may constitute appropriate additional evidence and should thus be required in all cases. Where the Member State, based on such additional evidence, considers that an undertaking has rebutted a presumption of lack of substance in a satisfactory manner, it should be able to issue a decision to certify that the undertaking has minimal substance for tax purposes in accordance with this Directive. Such decision may remain valid for the period during which factual and legal circumstances of the undertaking remain unchanged and up to 6 years from the time the decision is issued. This will allow to limit the resources allocated to cases that have been evidenced not to be a shell for the purposes of the Directive.
Amendment 58 #
Proposal for a directive
Recital 11
Recital 11
(11) As the objective of this Directive is to prevent tax avoidance and evasion that are likely to flourish through actions by undertakings without minimal substance, and in order to ensure tax certainty and enhance the proper functioning of the internal market, it is paramount to provide for a possibility of exemptions for undertakings which meet the gateway criterion but yet whose interposition has no actual advantageous impact on the overall tax position of the undertaking’s group or of the beneficial owner(s). For that reason, such undertakings should be entitled to request the administration of the Member State, where they reside for tax purposes, to issue a decision which exempts them from complying with the proposed rules altogether and upfront. Such exemption should also be limited in time, to allow the administration to verify on a regular basis that the factual and legal circumstances justifying the exemption decision remain valid. At the same time a potential extended duration of such decision will allow to limit the resources allocated to cases that should be exempt from the scope of the Directive.
Amendment 74 #
Proposal for a directive
Recital 17
Recital 17
(17) As the proper implementation and enforcement of the proposed rules in each Member State is critical for the protection of other Member States’ tax base, such implementation and enforcement should be monitored by the Commission. Member States should therefore communicate to the Commission on a regular basis, specific information, including statistics, on the implementation and enforcement in their territory of national measures adopted pursuant to this Directive. This exchange of information must be performed with high standards of data protection.
Amendment 75 #
Proposal for a directive
Recital 19 a (new)
Recital 19 a (new)
(19a) The implementation of this Directive must pursue the goal of closing the window of opportunities for tax evasion and avoidance through the misuse of shell entities; this objective must be fulfilled in full respect for the highest standards of accessibility, simplification and transparency; the additional tax obligations to be imposed through the implementation of this Directive must be proportionate and do not lead to overreporting, increasing the administrative burden and the compliance costs for European businesses.
Amendment 82 #
Proposal for a directive
Article 6 – paragraph 1 – introductory part
Article 6 – paragraph 1 – introductory part
1. Member States shall require that undertakings meeting the following cumulative criteria to report to the competent authorities of Member States in accordance with Article 7:
Amendment 84 #
Proposal for a directive
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
(a) more than 75% of the revenues accruing to the undertaking in the preceding two tax years is relevant income, in accordance with Article 4 as from the entry into force of this Directive;
Amendment 86 #
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 as from the entry into force of this Directive;
Amendment 90 #
Proposal for a directive
Article 6 – paragraph 1 – point b – point ii
Article 6 – paragraph 1 – point b – point ii
(ii) at least 605% of the undertaking’s relevant income is earned or paid out via cross-border transactions;
Amendment 116 #
Proposal for a directive
Article 6 – paragraph 2 – point e
Article 6 – paragraph 2 – point e
(e) undertakings with at least five ownthree full-time equivalent employees or members of staff exclusively carrying out the activities generating the relevant income or day-to- day activities of the undertaking;
Amendment 123 #
Proposal for a directive
Article 7 – paragraph 1 – point a
Article 7 – paragraph 1 – point a
(a) the undertaking has own premises in the Member State, or premises for its exclusive use or premises shared with entities of the same group;
Amendment 125 #
Proposal for a directive
Article 7 – paragraph 1 – point b
Article 7 – paragraph 1 – point b
(b) the undertaking has at least one own and active bank account in the Union through which the relevant income is received;
Amendment 130 #
Proposal for a directive
Article 7 – paragraph 1 – point c – point i – point 2
Article 7 – paragraph 1 – point c – point i – point 2
(2) are qualified and authorised to take decisions in relation to the activities that generate relevant income for the undertaking or in relation to the undertaking’s assets;
Amendment 135 #
Proposal for a directive
Article 7 – paragraph 1 – point c – point ii
Article 7 – paragraph 1 – point c – point ii
(ii) the majoritymore than 33% of the full-time equivalent employees of the undertaking are resident for tax purposes in the Member State of the undertaking, or at no greater distance from that Member States insofar as such distance is compatible with the proper performance of their duties, and such employees are qualifientitled to carry out the activities that generate relevant income for the undertaking.
Amendment 150 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Member States shall take the appropriatenecessary measures to allow undertakings that are presumed not to have minimum substance under Article 8(2) to rebut this presumption, without undue delay and excessive administrative costs, by providing any additional supporting evidence of the business activities which they perform to generate relevant income.
Amendment 151 #
Proposal for a directive
Article 9 – paragraph 2 – point a
Article 9 – paragraph 2 – point a
(a) a document allowing to ascertain the commercialbusiness rationale behind the establishment of the undertaking;
Amendment 152 #
Proposal for a directive
Article 9 – paragraph 2 – point a
Article 9 – paragraph 2 – point a
(a) a document allowing to ascertain the commercial rationale behind the establishment of the undertaking; in the Member State where the activity is performed; or
Amendment 153 #
Proposal for a directive
Article 9 – paragraph 2 – point b
Article 9 – paragraph 2 – point b
(b) information about the employee profiles, includingnamely the level of their experience, their decision-making power in the overall organisation, role and position in the organisation chart, the type of their employment contract, their qualifications and duration of employment;, safeguarding high levels of data protection and privacy; or
Amendment 155 #
Proposal for a directive
Article 9 – paragraph 3 a (new)
Article 9 – paragraph 3 a (new)
3a. The Member State shall consider the request for the rebuttal of the presumption within a period of 6 months after the introduction of the request and it shall be considered as accepted in the absence of answer from the Member State after the 6-month period.
Amendment 158 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. A Member State shall take the appropriatenecessary measures to allow an undertaking that meets the criteria laid down in Article 6(1) to request, without undue delay and excessive administrative costs, an exemption from its obligations under this Directive if the existence of the undertaking does not reduce the tax liability of its beneficial owner(s) or of the group, as a whole, of which the undertaking is a member.
Amendment 161 #
Proposal for a directive
Article 10 – paragraph 3 a (new)
Article 10 – paragraph 3 a (new)
3a. The Member State shall consider the exemption request within a period of 6 months after the introduction of the request and it shall be considered as accepted in the absence of answer from the Member State after the 6-month period.
Amendment 188 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
Where the competent authority of one Member State has reason to believe that an undertaking which is resident for tax purposes in another Member State has not met its obligations under this Directive, the former Member State may, upon detailing of such reasons, request the competent authority of the latter to conduct a tax audit of the undertaking.