40 Amendments of Andreas SCHWAB related to 2016/0338(CNS)
Amendment 32 #
Draft legislative resolution
Paragraph 5 a (new)
Paragraph 5 a (new)
5a. Calls on the Council to consider the possibility of progressively abrogating the Union Convention on the elimination of double taxation in connection with the adjustment of profits of associated enterprises (90/436/EEC) after the adoption of this Directive and thereby to strengthen a coordinated Union approach to dispute resolution through this Directive.
Amendment 35 #
Proposal for a directive
Recital -1 (new)
Recital -1 (new)
-1. On the basis of the principle of fair and effective taxation, all enterprises should pay their taxes where profits and gains are generated. However, they should not be subject to double or multiple taxation on the same profits. This can be effectively achieved in a single market only through joint and coordinated measures.
Amendment 37 #
Proposal for a directive
Recital 1
Recital 1
(1) 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 and thus have a negative impact on the proper functioning of the internal market. They create an excessive tax burden, a lack of legal certainty and unnecessary costs for businesses and are likely to cause economic distortions and inefficiencies, as well as t; they also have a negative impact on cross -border investment and growth.
Amendment 48 #
Proposal for a directive
Recital 2
Recital 2
(2) For this reason, it is necessary that efficient and enforceable mechanisms available in the Union ensure the resolution of double taxation disputes and the effective elimination of the double taxation at stake.
Amendment 50 #
Proposal for a directive
Recital 3
Recital 3
(3) The currently existing mechanisms provided for in bilateral taxdouble taxation treaties do not achieve the provision of a full relief from double taxation in a timely manner in all cases. The mechanisms provided for in these treaties are in many cases long, costly, difficult to access and do not always lead to agreement. The existing Convention on the elimination of double taxation in connection with the adjustments of profits of associated enterprises (90/436/EEC)7 ('the Union Arbitration Convention') has a limited scope as it is only applicable to transfer pricing disputes and attribution of profits to permanent establishments. The monitoring exercise carried out as part of the implementation of the Union Arbitration Convention has revealed some important shortcomings, in particular as regards access to the procedure, a lack of legal remedies against the interpretation of the provisions and the length and the effective conclusion of the procedure. _________________ 7 OJ L 225, 20.8.1990, p. 10.
Amendment 59 #
Proposal for a directive
Recital 4
Recital 4
(4) With a view to create a fairer tax environment for enterprises active in the EU, rules on transparency need to be enhanced and anti-avoidance measures need to be strengthened. At the same time in the spirit of a fair taxation system, it is necessary to ensure that taxpayers are not taxed twice on the same income and that mechanisms on dispute resolution are comprehensive, effective and sustainable. Improvements to double taxation dispute resolution mechanisms are also necessary to respond to a risk of increased number of double or multiple taxation disputes with potentially high amounts being at stake due to more regular and focused audit practices established by tax administrations.
Amendment 67 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) An effective and efficient framework should include the possibility for Member States of proposing alternative dispute resolution mechanisms that take better account of the specific characteristics of SMEs and can result in lower costs, less bureaucracy, more efficiency and the faster elimination of double taxation.
Amendment 70 #
Proposal for a directive
Recital 6
Recital 6
(6) The elimination of double taxation should be achieved through a procedure under which, as a first step, the case is submitted to the tax authorities of the Member States concerned with a view to settling the dispute by Mutual Agreement Procedure. In the absence of such agreement within a certain time frame, the case should be submitted to an Standing Advisory Commission or an Alternative Dispute Resolution Commission, consisting both of representatives of the tax authorities concerned and of independent persons of standing. The tax authorities should take a final binding decision by reference to the opinion of anthe Standing Advisory Commission or Alternative Dispute Resolution Commission.
Amendment 75 #
Proposal for a directive
Recital 7 a (new)
Recital 7 a (new)
(7a) The procedure for the settlement of double taxation disputes provided for in this Directive consists, among other options, in dispute resolution for the taxpayer. These include mutual agreement procedures under bilateral double tax conventions or under the Union Convention on the Elimination of Double Taxation. The present dispute resolution procedure should be prioritised against the other options, as it provides for a coordinated, Union-wide approach to dispute resolution, which includes clear and enforceable rules, a duty to eliminate double taxation and a fixed timeframe.
Amendment 89 #
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 submit the complaint to both competent authorities of the Member States concerned at the same time and indicate in its complaint to each respective competent authority which other Member States are concerned.
Amendment 93 #
Proposal for a directive
Article 3 – paragraph 2
Article 3 – paragraph 2
2. TheEach competent authoritiesy shall acknowledge receipt of the complaint within one month from the receipt of the complaint. They shall also informand notify the competent authorities of the other Member States concerned onwithin one month of the receipt of the complaint.
Amendment 105 #
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 shallof the complaint and inform theat taxpayers and the competent authoritiesy of the other Member States of their decision.
Amendment 112 #
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 year18 months starting from the last notification of one of the Member States’ decision on the acceptance of the complaint.
Amendment 115 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2
Article 4 – paragraph 1 – subparagraph 2
The period of two year18 months referred to in the first subparagraph may be extended by up to six 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 118 #
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 within five days transmit this agreement to the taxpayer 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 immediately implemented irrespective of any time limits prescribed by the national law of the Member States concerned.
Amendment 122 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. The competent authorities of the Member States concerned may decide to reject the complaint where the complaint is inadmissible or there is no double taxation or the three-year period set forth in Article 3(1) is not respected. The competent authorities shall inform the taxpayer of the reasons for the rejection.
Amendment 124 #
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.
Amendment 127 #
Proposal for a directive
Article 6 – title
Article 6 – title
Dispute resolution by Standing Advisory Commission
Amendment 128 #
Proposal for a directive
Article 6 – paragraph 1
Article 6 – paragraph 1
Amendment 129 #
Proposal for a directive
Article 6 – paragraph 2 – subparagraph 1
Article 6 – paragraph 2 – subparagraph 1
Amendment 134 #
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 year18 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 135 #
Proposal for a directive
Article 6 – paragraph 3 – subparagraph 1
Article 6 – paragraph 3 – subparagraph 1
Amendment 136 #
Proposal for a directive
Article 6 – paragraph 3 – subparagraph 2
Article 6 – paragraph 3 – subparagraph 2
Amendment 137 #
Proposal for a directive
Article 6 – paragraph 4
Article 6 – paragraph 4
Amendment 140 #
Proposal for a directive
Article 7
Article 7
Amendment 144 #
Proposal for a directive
Article 8 – title
Article 8 – title
The Standing Advisory Commission
Amendment 145 #
Proposal for a directive
Article 8 – paragraph 1 – subparagraph 1 – introductory part
Article 8 – paragraph 1 – subparagraph 1 – introductory part
The Standing Advisory Commission referred to in Article 6 shall have the following composition:
Amendment 146 #
Proposal for a directive
Article 8 – paragraph 1 – subparagraph 1 – point b
Article 8 – paragraph 1 – subparagraph 1 – point b
(b) two permanent representatives of each competent authority concerned, appointed by the Member States;
Amendment 148 #
Proposal for a directive
Article 8 – paragraph 1 – subparagraph 1 – point c
Article 8 – paragraph 1 – subparagraph 1 – point c
(c) one or two independent persons of standing who shall be appointed by each competent authoritythe Commission from the list of persons referred to in paragraph 4.
Amendment 151 #
Proposal for a directive
Article 8 – paragraph 1 – subparagraph 2
Article 8 – paragraph 1 – subparagraph 2
Amendment 152 #
Proposal for a directive
Article 8 – paragraph 1 – subparagraph 3
Article 8 – paragraph 1 – subparagraph 3
Amendment 153 #
Proposal for a directive
Article 8 – paragraph 3
Article 8 – paragraph 3
Amendment 166 #
Proposal for a directive
Article 10 – paragraph 1 – subparagraph 1 – introductory part
Article 10 – paragraph 1 – subparagraph 1 – introductory part
Member States shall provide that within the period of fifty30 calendar days as provided for in Article 6(4), each competent authority of the Member States concerned notifies the taxpayers on the following:
Amendment 168 #
Proposal for a directive
Article 10 – paragraph 1 – subparagraph 2
Article 10 – paragraph 1 – subparagraph 2
The date referred to in point (b) of the first subparagraph shall be set no later than 6three months after the setting up of the Advisory Commission or Alternative Dispute Resolution Commission.
Amendment 179 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. The Advisory Commission or Alternative Dispute Resolution Commission shall deliver its opinion no later than sixthree months after the date it was set up to the competent authorities of the Member States concerned.
Amendment 184 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. The competent authorities shall agree within sixthree months of the notification of the opinion of the Advisory Commission or Alternative Dispute Resolution Commission on the elimination of the double taxation.
Amendment 188 #
Proposal for a directive
Article 15 – paragraph 3 – point a
Article 15 – paragraph 3 – point a
(a) sixthree months referred to in Article 3(5);
Amendment 191 #
Proposal for a directive
Article 15 – paragraph 3 – point b
Article 15 – paragraph 3 – point b
(b) two year18 months referred to in Article 4(1).
Amendment 192 #
Proposal for a directive
Article 15 – paragraph 6
Article 15 – paragraph 6
6. By way of derogation from Article 6, Member States concerned may deny access to the dispute resolution procedure in cases of tax fraud established by a legally valid judgement in criminal or administrative proceedings, wilful default and gross negligence in the same matter.
Amendment 208 #
Proposal for a directive
Annex I – paragraph 16 a (new)
Annex I – paragraph 16 a (new)
Trade tax