Table of Contents. Preface. Abbreviations and Terms

Transcription

1 Preface Abbreviations and Terms v ix Chapter 1 Concepts and Basic Principles of EU Tax Law Concepts Relation to other legislation Sovereignty and subsidiarity Separateness and interaction The primacy of EU law The principle of the most lenient provision Direct effect and application Primary law The founding treaties and the accession treaties Fundamental rights Legal principles of EU law Secondary law Concept Directives Authorization to issue directives Impact of the directives Directives on direct taxes Recommendations and other measures International conventions Connection to EU law Tax treaties between EU Member States Right to conclude tax treaties Primacy of EU law Most favoured nation Tax treaties with third countries Right to conclude tax treaties Primacy of EU law Other treaties with non-member States EEA Agreement Other conventions Harmful tax competition and forbidden state aid Harmful tax competition Concept 35 ix

2 Measures against harmful tax competition Prevention of tax evasion Prohibition of state aid Elimination of international double taxation Legal basis Tax treaties and directives Obligation to take into account taxes levied in another Member State Interpretation of EU law EU law method of interpretation EU law-consistent interpretation of domestic law 54 Chapter 2 Non-Discrimination and Basic Freedoms Discrimination based on nationality General conditions for application Concept of discrimination Comparable situation or different situation Different situation Comparable situation Resident companies of different states Basic freedoms General conditions for application Free movement of goods Applicable norms Relevance to direct taxation Free movement of EU citizens Free movement of workers General conditions for application Different tax treatment on the basis of residence Employment in several states Most income from employment state Small part of income from employment state Social security contributions Freedom of establishment Relevance and scope of application Undertakings in a comparable situation Permanent establishments No permanent establishment Dividend taxation systems 94 x

3 Permanent establishment Foreign-source dividends Non-resident dividend recipient Thin capitalization Group taxation systems Need for cross-border balancing of profits and losses Permanent establishments No permanent establishment Free movement of capital and payments Primary rule Exceptions Relations to non-member States Right to capital in companies Freedom to provide services Scope of application Cases on direct taxes Overlapping scope of application Freedom of establishment or free movement of capital? Free movement of capital or services? Freedom of establishment/free movement of capital or free movement of workers? Free movement of capital or goods? Simultaneous application Justifications for discrimination or restrictions Rule of reason Effectiveness of fiscal supervision and the recovery of tax debt Anti-avoidance purpose Tax planning versus tax avoidance CFC regimes as an example Balanced allocation of taxing rights Need to prevent double use of losses Coherence of the national tax system Territoriality Treatment in the other state Non-EU and non-eea States 152 xi

4 Chapter 3 Corporate Tax Directives EU Parent-Subsidiary Directive Background Scope of application Profit distributions between subsidiary and parent companies residing in different Member States Profit distributions connected with a permanent establishment Company of a Member State Permanent establishment Parent and subsidiary company Profit distribution Other requirements EEA and other non-member States Tax treatment Tax treatment in the dividend recipient s state Elimination of double taxation in the parent company state Exemption or credit in the parent company state or in the permanent establishment state Treatment of hybrid subsi diaries in the parent company state Treatment of subsidiary-related costs in the parent company state Tax treatment in the subsidiary state No withholding tax Withholding tax Tax-avoidance situations EU Interest-Royalty Directive Background and force Tax treatment Tax consequences Administrative prerequisites Repayment of a tax levied in conflict with the directive Intra-EU cross-border payment Qualifying companies 193 xii

5 Company of a Member State Permanent establishment Associated companies Beneficial owner Source state The concepts of interest and royalty Interest Royalty Payments outside the scope of the directive Tax-avoidance situations EU Merger Directive Background and force Force Relevance of the directive Scope of application Reorganizations covered Company from a Member State Merger Division Transfer of assets Exchange of shares Tax treatment of mergers, divisions and transfers of assets Applicable provisions Deferral of capital gains taxation Carry-over of provisions and reserves Takeover of losses Holdings of the receiving company in the transferring company Tax exemption of the shareholders Situations covered Situations not covered by the tax exemption Transfer of a permanent establishment Transfer of registered office of a European Company or European Cooperative Society Background and relevance Transfer of registered office Tax consequences Tax avoidance Artificial tax-avoidance arrangements 240 xiii

6 Other situations Employee representation 243 Chapter 4 EU Company Forms and the Future of Corporate Taxation Introduction European Company and European Cooperative Society Formation Company law Tax treatment Tax treatment of a European Company or a European Cooperative Society Relevance of the SE Regulation and the SCE Regulation National tax laws Tax treaties Founding treaties and directives Tax-related problems European Economic Interest Grouping Company law Tax treatment Future of corporate taxation in the European Union Need for development CCCTB Alternatives 264 Chapter 5 Transfer Pricing Relevance Code of Conduct on transfer pricing documentation Background and purpose General principles Rights and obligations of enterprises Rights and obligations of Member States Content of documentation General principles Master file Country-specific documentation Advance pricing agreements Background and purpose Binding effect Prerequisites for an advance pricing agreement Conduct of the advance pricing agreement process 281 xiv

7 Preliminary negotiations and informal application Formal application Evaluation and negotiations Formal advance pricing agreement Arbitration Convention Relevance, force and interpretation Relevance Force Interpretation Scope of application Elimination of double taxation Double taxation caused by a transfer pricing adjustment Enterprise of a contracting state Serious penalty Taxes covered by the Arbitration Convention Competent authority Territorial scope of application Arm s length principle and transfer pricing adjustment Notification of a transfer pricing adjustment Mutual agreement procedure Institution of proceedings Notifications and information request Starting the negotiations Negotiations Agreement and implementation Arbitration procedure Starting the procedure Advisory commission Rights and obligations within the arbitration procedure Opinion of the advisory commission Costs Correction of tax assessment Abolition of international double taxation Suspension of tax collection 315 xv

8 Chapter 6 Mutual Assistance and Recovery of Tax Claims Directive on Administrative Cooperation Background and relevance Scope of application Types of information exchange Automatic exchange of information Exchange on request Spontaneous exchange of information The exchanging authority Limits for exchange of information Disclosure of information Presence in the requested state Notification of tax decisions Simultaneous controls Consultations Recovery Directive The norms and scope of application Norms Taxes on income and capital Competent authorities Types of assistance Exchange of information Notification of documents Recovery Precautionary measures Limits to the obligation to assist Periods of limitation Use of languages Disclosure of information and documents Costs linked to recovery Savings Directive Background and relevance Scope of application States applying the Savings Directive Intra-EU cross-border interest payments to individuals Beneficial owner Paying agent Competent authority Interest payment Exchange of information Reporting by the paying agent 377 xvi

9 Automatic exchange of information Relation to Directive on Administrative Cooperation Withholding tax under transitional period Withholding tax Withholding tax base Avoiding the withholding tax Elimination of double taxation 384 Chapter 7 Legal Remedies National legal remedies Tax treaties Mutual agreement procedure Arbitration Convention EU Court Tasks of the EU Court Preliminary rulings Actions Actions against a Member State Infringement procedure Actions of Member States Costs Effects of EU Court judgments Repayment of taxes paid in conflict with EU law Liability for damages Consequences of the failure to comply with an EU Court judgment 406 References 407 Bibliography 407 EU Court cases (listed chronologically) 472 European Court of Human Rights 482 EFTA Cour 483 EU Court cases (listed alphabetically 483 Index 495 xvii

10 xviii