43 Amendments of Aurore LALUCQ related to 2023/0320(CNS)
Amendment 42 #
Proposal for a directive
Recital 3
Recital 3
(3) The variety of ways for doing business in the internal market requires different solutions for different businesses when it comes to tackling the current challenges posed by their cross-border operations. For smaller businesses which are not part of a group, it is more difficult to expand cross-border than for larger businesses. It is thus more burdensome for those smaller businesses to grapple with complex procedures and high compliance costs. It is therefore evident that micro, small and medium-sized enterprises, at the initial stages of expansion, need a solution such as a simplified mechanism for the computation of their taxable result when they operate across the border exclusively by way of permanent establishments or a maximum of one subsidiary. Transparency is essential for the smooth functioning of the Single Market.
Amendment 44 #
Proposal for a directive
Recital 3 a (new)
Recital 3 a (new)
(3 a) Combatting fraud, tax evasion and tax avoidance are overriding political priorities, as aggressive tax planning practices are unacceptable from the point of view of the integrity of the internal market and social justice.
Amendment 47 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4 a) Equality of tax treatment for all, and in particular for all undertakings, is a sine qua non for the single market. A coordinated and harmonised approach to the implementation of national tax systems is vital for the proper functioning of the single market, and would contribute to preventing tax avoidance and profit shifting
Amendment 48 #
Proposal for a directive
Recital 4 b (new)
Recital 4 b (new)
(4 b) A fair and effective corporate tax system should respond to the urgent need for a progressive and fair global tax policy, promote the redistribution of wealth and combat inequalities.
Amendment 50 #
Proposal for a directive
Recital 5
Recital 5
(5) To prevent abusive tax practices, robust and specific anti-tax abuse rules are designed, for example to address the tax avoidance risks associated with transferring the tax residence of an SME, and thus to avoid that the location of the head office is determined on the basis of tax motives. Such anti abuse measures are based on quantitative requirements to avoid artificial transfers of profits. Accordingly, it would be necessary to monitor the evolution of the turnover attributed to the permanent establishment(s) and/or the subsidiary in order to maintain their operations as secondary to the main activity which should be carried out by the head office. In this way, the rules would not risk being misused by setting up empty head offices while the bulk of business activities takes place abroad. In the same vein, the eligibility to the tax simplification system as well as the termination and renewal of the option should be subject to strict conditions. Such conditions should be coupled with requirements relating to the turnover of the head office as compared to that of the permanent establishment(s) and/or the subsidiary. The aim would be to further underline that the business operated through the permanent establishment(s) and/or the subsidiary can merely be an extension of the main activity of the head office. Additionally, once the option is made to apply the tax simplification framework, it should have an obligatory duration, to prevent situations where the residence of the head office is frequently moved to take advantage of occasional and short-term tax beneficial situations.
Amendment 51 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5 a) Considering that the Head Office Tax system is meant to facilitate the expansion and development of the activity of firms in other Member States, such system should be made available for a limited period of time and the renewal to opt in should be limited to once. After a period of 10 years, firms would have the possibility to rely on other paneuropean tools such as the Business in Europe: Framework for Income Taxation, which provides for a common rulebook for corporate income tax across Member States.
Amendment 53 #
Proposal for a directive
Recital 6
Recital 6
(6) International shipping is a specific sector of activity subject to special tax regimes in several Member States. Those regimes mostly consist of computing the tax base on the basis of the tonnage (i.e. the carrying capacity) of the operated ships rather than on the basis of actual profits or losses incurred by the company. On this premise, SMEs that derive income from shipping activities covered by a tonnage tax regime should be excluded from opting in the SME simplification rules in respect of such income attributed to a permanent establishment or the subsidiary. This exclusion would avoid additional complication, which would be expected to arise from the interaction between the SME tax simplification framework and tonnage tax regimes. In addition, such a potential complication would appear disproportionate, considering the absence of such special tax regimes in some Member States. No other sectors of activityactivity than the one covered by the tonnage tax regime would be excluded from the scope of the Directive.
Amendment 67 #
Proposal for a directive
Article 2 – paragraph 1 – point e
Article 2 – paragraph 1 – point e
(e) they operate in other Member States exclusively through one or more permanent establishments and/or one subsidiary;
Amendment 70 #
Proposal for a directive
Article 2 – paragraph 3
Article 2 – paragraph 3
3. This Directive shall not affect the right of the Member State where a permanent establishment or the subsidiary is situated to determine the applicable tax rate, nor the applicability of bilateral conventions for the avoidance of double taxation, or the rules on the social protection of workers in the Member State of the permanent establishment.
Amendment 72 #
Proposal for a directive
Article 3 – paragraph 1 – point 1 a (new)
Article 3 – paragraph 1 – point 1 a (new)
(1 a) ‘subsidiary’ means an undertaking in another Member State which is wholly- owned and controlled by the head office of an SME;
Amendment 84 #
Proposal for a directive
Article 4 – paragraph 1 – point b
Article 4 – paragraph 1 – point b
(b) it has been resident for tax purposes in the head office Member State during the last two fiscal years or since the creation of the head office;
Amendment 88 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
2. If the head office opts to apply the head office taxation rules in accordance with paragraph 1, it shall apply those rules to all its permanent establishments and/or subsidiairy in other Member States. If it creates a new permanent establishment in another Member State, it shall apply head office taxation rules to such permanent establishment from the moment of its establishment. If it creates a first subsidiary, in another Member State, it shall apply head office taxation rules to such subsidiary from the moment of its establishment
Amendment 91 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
Where the head office derives income from shipping activities and this income is subject in the head office Member State to a tonnage tax regime, such head office shall be excluded from applying the head office taxation rules in respect of its permanent establishment(s) and/or the subsidiary in other Member States to the extent that these derive income from shipping activities.
Amendment 93 #
Proposal for a directive
Article 6 – paragraph 1
Article 6 – paragraph 1
1. The head office which opts to apply the head office taxation rules to its permanent establishment(s) and/or the subsidiary shall notify its choice to the filing authority, together with the name of the host Member State(s). The notification shall be made at least three months before the end of the fiscal year preceding the fiscal year in which that SME wishes to start applying the head office taxation rules.
Amendment 96 #
Proposal for a directive
Article 6 – paragraph 3 – subparagraph 1
Article 6 – paragraph 3 – subparagraph 1
If the eligibility requirements are met, the filing authority shall inform the tax authorities of the host Member States within two months of the notification referred to in paragraph 1 that the taxable result of the relevant permanent establishments and/or the relevant subsidiary shall be computed in accordance with the head office taxation rules as of the following fiscal year, as applied in the head office Member State. The tax authority of the host Member State(s) shall communicate to the filing Authority the applicable tax rate.
Amendment 102 #
Proposal for a directive
Article 6 – paragraph 3 – subparagraph 4
Article 6 – paragraph 3 – subparagraph 4
If the filing authority concludes that the eligibility requirements are not met, it shall inform the head office within twoone months of the notification referred to in paragraph 1 and the head office may appeal against it in accordance with the national law.
Amendment 104 #
Proposal for a directive
Article 6 – paragraph 4
Article 6 – paragraph 4
4. Where a host Member State concludes that the presence of an SME in its territory qualifies as a permanent establishment or a subsidiairy, it shall inform the filing authority. Upon that information, the filing authority shall inform the competent tax authority of the host Member State on whether the head office applies the head office taxation rules in respect of its permanent establishments or the subsidiary.
Amendment 106 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. The head office that has opted to apply head office taxation rules to its permanent establishments and/or the subsidiairy in one or more host Member States shall apply those rules for a period of five fiscal years, renewable once.
Amendment 110 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
2. At the end of the period referred to in paragraph 1, the head office taxation rules shall cease to apply in respect of the permanent establishments situated in the host Member States, unless the head office notifies to the filing authority its option to renew the application of the head office taxation rules, in accordance with the procedure set out in Article 9, for another 5 years.
Amendment 116 #
Proposal for a directive
Article 8 – paragraph 1 – point b
Article 8 – paragraph 1 – point b
(b) for the last two fiscal years, the joint turnover of its permanent establishments and/or the subsidiary exceeded an amount which is equal to tripdouble the turnover of the head office.
Amendment 125 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. If the head office wishes to renew its option for another 5 years, it shall notify the filing authority thereof at least six months before the end of the period referred to in Article 7(1) and shall list the names of the host Member States. The filing authority shall verify whether the SME continues to meet the eligibility requirements set out in Article 4.
Amendment 132 #
Proposal for a directive
Article 10 – paragraph 1 – point a
Article 10 – paragraph 1 – point a
(a) for any two fiscal years taken separately, the joint turnover of the permanent establishments and/or the subsidiairy exceeded an amount which is equal to double the turnover of the Head Office;
Amendment 134 #
Proposal for a directive
Article 10 – paragraph 1 – point b
Article 10 – paragraph 1 – point b
(b) the SME set up one or mormore that one subsidiariesy within or outside the Union;
Amendment 139 #
Proposal for a directive
Article 11 – paragraph 2 – point b
Article 11 – paragraph 2 – point b
(b) the tax liability of the SME with regard to the taxable result of each permanent establishment and/or the subsidiairy in other Member States. The tax liability shall be computed by applying the national tax rate of the respective host Member State to the taxable result, as it was computed in accordance with the head office taxation rules.
Amendment 141 #
Proposal for a directive
Article 11 – paragraph 3 – point a
Article 11 – paragraph 3 – point a
(a) assets and liabilities attributed to the permanent establishment(s) and/or the subsidiairy;
Amendment 143 #
Proposal for a directive
Article 11 – paragraph 3 – point b
Article 11 – paragraph 3 – point b
(b) profits attributable to the permanent establishment(s) and/or the subsidiairy in other Member States.
Amendment 144 #
Proposal for a directive
Article 11 – paragraph 4 – point b
Article 11 – paragraph 4 – point b
(b) a draft tax assessment notice for each permanent establishment and/or the subsidiairy.
Amendment 145 #
Proposal for a directive
Article 11 – paragraph 5 – subparagraph 1 – point b
Article 11 – paragraph 5 – subparagraph 1 – point b
(b) a draft tax assessment notice for the relevant permanent establishment(s) and/or the subsidiairy;
Amendment 146 #
Proposal for a directive
Article 11 – paragraph 8
Article 11 – paragraph 8
8. If the tax authority of the host Member State rejects the draft tax assessment notice, it shall revise this draft tax assessment in connection with the attribution of profits to the permanent establishment and/or the subsidiairy in accordance with the provisions laid down in the applicable bilateral convention for the avoidance of double taxation between the host and head office Member States. After the attribution of profits to the permanent establishment and/or the subsidiairy has been revised and communicated to the filing authority in accordance with Article 8ae of Directive 2011/16/EU, the filing authority shall re- compute the taxable result in accordance with the taxation rules of the head office Member State, and a revised tax assessment shall be issued by this Member State. The taxpayer shall be entitled to appeal against this revised tax assessment before the courts of the head office Member State. Any dispute concerning the amount of profits attributable to the permanent establishment and/or the subsidiairy shall be settled in accordance with the applicable bilateral convention for the avoidance of double taxation, or the provisions set out in Council Directive (EU) 2017/1852 of 10 October 2017 17 . _________________ 17 Council Directive (EU) 2017/1852 of 10 October 2017 on tax dispute resolution mechanisms in the European Union (OJ L 265, 14.10.2017, p. 1–14).
Amendment 147 #
Proposal for a directive
Article 11 – paragraph 9
Article 11 – paragraph 9
9. Where, under the tax rules of the host Member State, certain expenses associated with the employees of the permanent establishment and/or the subsidiairy are deductible for tax purposes insofar as the respective amounts are taxed at the level of the employee or are subject to social security charges, and there is no similar tax treatment in the head office Member State allowing for such deduction, the head office and host Member States shall -,with the guidance of the Commission, take appropriate measures to prevent possible mismatches.
Amendment 148 #
Proposal for a directive
Article 11 – paragraph 9 a (new)
Article 11 – paragraph 9 a (new)
9 a. The Commission shall, by means of implementing acts, lay down guidance on appropriate measures regarding mismatches as referred to paragraph 8. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 15.
Amendment 149 #
Proposal for a directive
Article 12 – title
Article 12 – title
Collection of tax due by the permanent establishment(s)and/or the subsidiary in the host Member State(s)
Amendment 151 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
1. The head office shall settle, through the filing authority, the income tax liabilities with regard to both its taxable result and the taxable result of its permanent establishment(s) and/or the subsidiary in the host Member State(s).
Amendment 152 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
2. The filing authority shall collect the tax corresponding to the tax liability of each permanent establishment and/or the subsidiary of the head office in the Union, apply the tax rate the respective host Member State and transfer the relevant amount to the competent authority of the respective host Member State.
Amendment 154 #
Proposal for a directive
Article 12 – paragraph 3
Article 12 – paragraph 3
3. The Commission shall, by means of implementing acts, lay down the practical arrangements necessary to ensure the collection and transfer of the tax corresponding to the tax liability of the permanent establishment(s) and/or the subsidiary from the head office Member State to the host Member State. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 15.
Amendment 159 #
Proposal for a directive
Article 13 – paragraph 2
Article 13 – paragraph 2
2. The tax authority of the host Member State may request that an audit be carried out jointly with the filing authority covering the computation of the taxable result of the permanent establishment or the subsidiairy in accordance with the head office taxation rules, the attribution of profits to the permanent establishment and/or the profits to the subsidiary and/or the applicable tax rate. Joint audits shall be conducted in accordance with Council Directive 2011/16/EU18 . Notwithstanding the provisions in the aforementioned Directive, the requested competent authority shall accept such request by the authorities of the host Member State. _________________ 18 Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC (OJ L 64, 11.3.2011, p. 1)
Amendment 161 #
Proposal for a directive
Article 14 – paragraph 1 – point 2
Article 14 – paragraph 1 – point 2
Directive 2011/16/EU
Article 8ae
Article 8ae
1. If a head office as defined in Article 3, point (2), of Directive on establishing a Head Office taxation rules for micro, small and medium sized enterprises20 , which opts to apply the head office taxation rules to its permanent establishment(s) and/or its subsidiary in accordance with Article 6 of that, meets the eligibility requirements for applying such rules, the competent authority of the Member State of the head office shall by means of automatic exchange of information communicate to the competent authority of the Member State of the permanent establishment or the subsidiary that the taxable result of the relevant permanent establishment or subsidiary is to be computed in accordance with the head office taxation rules. Such communication shall take place within two months from the notification by the Head Office of its option to apply head office taxation rules. _________________ 20 Directive…[OJ: Please insert the number, date, title and OJ reference of that Directive].
Amendment 162 #
Proposal for a directive
Article 14 – paragraph 1 – point 2
Article 14 – paragraph 1 – point 2
Directive 2011/16/EU
Article 8ae
Article 8ae
2. The competent authority of the Member State of the permanent establishment or the subsidiary shall communicate to the competent authority of the Member State of the head office the tax rate applicable for the purpose of determining the tax liability of the permanent establishment(s) or the subsidiary situated on its territory, within three months from the notification by the competent authority of the Member State of the head office of the decision on the application of the head office taxation rules.
Amendment 163 #
Proposal for a directive
Article 14 – paragraph 1 – point 2
Article 14 – paragraph 1 – point 2
Directive 2011/16/EU
Article 8ae
Article 8ae
3. The competent authority of the Member State of the head office shall by means of automatic exchange of information communicate the information specified in paragraph 2 of this Article to the competent authority(ies) of the Member State(s) of the permanent establishment(s) or the subsidiary in accordance with the practical arrangements adopted pursuant to Article 21.
Amendment 164 #
Proposal for a directive
Article 14 – paragraph 1 – point 2
Article 14 – paragraph 1 – point 2
Directive 2011/16/EU
Article 8ae
Article 8ae
(iii) a draft tax assessment notice for the relevant permanent establishment(s)/subsidiary;
Amendment 165 #
Proposal for a directive
Article 14 – paragraph 1 – point 2
Article 14 – paragraph 1 – point 2
Directive 2011/16/EU
Article 8ae
Article 8ae
6. Where the tax authority of the Member State of the permanent establishment(s) or subsidiary revises the draft tax assessment notice in connection with the attribution of profits to the permanent establishment or subsidiaryin accordance with the provisions laid down in the applicable bilateral convention for the avoidance of double taxation between the host and head office Member States, after rejection of the draft tax assessment notice issued by the head office Member State, the competent authority of the Member State of the permanent establishment(s) or subsidiairy shall communicate such revised tax assessment notice to the competent authority of the Member State of the head office, within one month from its issuance, for the purpose of re-computing the taxable result of the permanent establishment or subsidiairy, issuance of a revised tax assessment and collecting the tax.
Amendment 166 #
Proposal for a directive
Article 18 – paragraph 2
Article 18 – paragraph 2
2. Information, including personal data, processed in accordance with this Directive shall be retained only as long as necessary to achieve the purposes of this Directive, in particular, verification of eligibility requirements and determination of the tax liability of the taxpayers, in accordance with each data controller’s domestic rules on the statute of limitations, but in any case no longer than tfifteen years.
Amendment 171 #
Proposal for a directive
Article 19 – paragraph 2
Article 19 – paragraph 2
2. Member States shall communicate to the Commission relevant information for the evaluation of the Directive, in accordance with paragraph 3, including aggregated data regarding the number of eligible SMEs compared to SMEs that opted in, their turnover and compliance costs relative to turnover; data on the number of SMEs that expanded cross- border by setting up a permanent establishment and the number of SMEs that disqualified due to creating a/owning more than one subsidiary, or the compliance costs for SMEs that apply the option.