Environmental Policy and Direct Taxation in Europe
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1 Environmental Policy and Direct Taxation in Europe Editors Peter HJ. Essers, Paul A. Flutsch and Manon A. Ultee.KLUWER LAW INTERNATIONAL THE HAGUE - LONDON - BOSTON
2 Contents Preface List of Contributors List of Abbreviations Table of Legislation xiii xvii xix xxi Country Reports 1. Belgium Prof. Dr. Frans Vanistendael 1. Introduction 1 2. Influence of commercial accounting 1 3. General tax measures which stimulate environmental protection Taxpayers Tax base General measures which may also stimulate environmental protection Rules of evidence Tax rates and credits General measures which may also stimulate environmental protection Rules of evidence Practicability and procedural rules Compatibility with European Community (EC) law Influence on competition 6 4. General rules with respect to environmental liabilities Taxbase Impact of liabilities and provisions Rules of evidence Practicability and procedural rules Compatibility with EC law 7
3 vi Environmental Policy and Direct Taxation in Europe 5. Specific tax incentives for environmental protection Taxpayers Tax base Specific provisions to stimulate environmental protection Rules of evidence Tax rates and credits Practicability and procedural rules Compatibility with EC law Impact on competition Specific tax rules with respect to environmental liabilities Taxbase Impact on environmental liabilities on tax base Rules of evidence Practicability and procedural rules Compatibility with EC law France Prof. Dr. Cyrille David and Benoit Bohnert 1. What is the environment? Different forms of regulations and/or taxation When does interaction between the environment and taxation occur? Fiscal measures to stimulate environmental protection Regulations to stimulate environmental protection Accelerated or free depreciation of investments in energy-efficient and/or environmentally-friendly assets Fiscal profits and/or tax credits with respect to investments in energy-efficient and/or environmentally-friendly assets Fiscal incentives (exemptions or tax credits) for investors who invest in environmentally-friendly projects Exemption with respect to profits out of forestry Replacement reserve/roll-over relief with respect to investments in scientific research Conclusion Do the regulations cause problems in practice? Do the regulations cause problems in practice with respect to their legal coherence? 22
4 Contents vii 5.2 Do the regulations cause problems in practice with respect to their applicability in practice? Do the regulations cause problems in practice with respect to legal protection? Are there indications that the regulations and case law in France are not compatible with EC law (Art. 87 EC Treaty)? Some information about the influence about the above mentioned regulations on the competitive regulations between companies in France Fiscal liabilities with respect to environmental legislation Introduction In what respect do liabilities with respect to environmental legislation influence the fiscal profit determination by companies in France? Debts Provisions Fiscal reserves Important questions with respect to the above mentioned liabilities Is the creation of a fiscal debt/provision/reserve only possible in the Situation where an entrepreneur is under court order to pay the costs for soil sanitation? Is the creation of a fiscal debt/provision/reserve only possible in case a legal procedure has been started? Is the creation of a fiscal debt/provision/reserve only possible in the Situation where the pollution was caused (even if no legal procedure has yet been started)? Must the possibility to create a fiscal environmental debt/ Provision have been caused by the business activities of the entrepreneur himself or herseif? Can the fiscal debt/provision cover the costs of pollution from the past? Can tax deductible provisions or debts be entered in the balance sheet by a business even if they date from costs incurred (but not deducted) a long time ago or are there limits to this possibility of deduction? What evidence should be produced by the entrepreneur to create an environmental debt/provision in his or her fiscal balance sheet? Is it possible to form an environmental debt/provision only in the fiscal balance sheet and not in the commercial balance sheet? 29
5 viii Environmental Policy and Direct Taxation in Europe 9.9 Which costs can be attributed to the environmental debt/provision? Do the above mentioned legal possibilities to form (fiscal) environmental debts/provisions/reserves cause problems in practice with respect to their legal coherence? Do the above mentioned legal possibilities to form (fiscal) environmental debts/provisions/reserves cause problems in practice with respect to their applicability in practice? Are there any indications that the regulations and case law are not compatible with EC law Germany Prof. Dr. Albert J. Rädler and Alexander Winkler Introduction The relationship between tax and commercial accounting 2.1 Introduction 2.2 Liabilities in tax computation Reserves Provisions Restrictions with respect to the possibilities to set up provisions for contingent losses Ecological aspects Debts Case study 3.1 Introduction 3.2 Cases The entrepreneur has been sentenced by a court to clean up the soil; estimated costs are XEU1 million An independent investigation has shown that the soil has been polluted by the entrepreneur Dateofmaturity Real existence of a legal future liability Amount An entrepreneur has started a gas Station and at the moment the soil is not polluted Temporal maturity Real existence of a legal future liability Amount Fiscal measures to stimulate environmental protection Introduction 37 33
6 Contents ix 4.2 Accelerated investments Environmental object (commodity/investment) - 7 d II EstG Environmental subsidies Direct subsidies for ecological investments Subsidies for investments in more environmentally-friendly power plants Subsidized loans European Recovering Programme (ERP) environmental protection and energysaving programme :2 Energy programme Italy Prof. Dr. Franco Gallo, Prof. Dr. Fabio Marchetti and Claudia Gregori 1. Introduction The relationship between fiscal and commercial accounts in Italy Fiscal measures to stimulate environmental protection General fiscal measures to stimulate environmental protection Specific fiscal measures to stimulate environmental protection Fiscal liabilities with respect to environmental legislation General fiscal liabilities with respect to environmental legislation Conclusions on direct taxation Anticipated depreciation Incentives for research and advanced technology The Netherlands Prof. Dr. Peter HJ. Essers 1. Introduction Environmental direct tax legislation with respect to enterprises Introduction The relationship between fiscal and commercial accounts in the Netherlands Fiscal versus commercial accounts Total profit and annual profit Sound business practice 51
7 x Environmental Policy and Direct Taxation in Europe Introduction Principles of sound business practice Environmental measures with respect to the total profit Forestry exemption Energy investment deduction Environmental measures with respect to the annual profits Accelerated depreciation Environmental liabilities General aspects of fiscal liabilities in the Netherlands Environmental liabilities on the fiscal balance sheet Environmental tax legislation with respect to investors in 'green projects' Other environmental tax measures Spain Prof. Dr. Tulio Rosembuj and Dr. Angel Baena 1. General The influence of commercial accounting on taxation Possibilities to create liabilities in the fiscal balance sheet in general Other fiscal measures in Spanish income tax which stimulate (or may stimulate) environmental protection Measures that indirectly stimulate environmental protection Specific fiscal measures to stimulate environmental protection Application of the general rules on fiscal liabilities on situations of entrepreneurs which carry on a business on polluted soil United Kingdom Prof. Dr. David Williams 1. The position in the United Kingdom Fiscal measures to stimulate environmental protection Abolition of tax Charge on forestry (1988) Waste disposal Scientific research Charities assisting environmental objectives Motor cars Fiscal liabilities with respect to environmental legislation 72
8 Contents xi 8. General Conclusions Prof. Dr. Peter HJ. Essers 1. The goal of the investigation Fiscal measures in income tax meant to stimulate environmental protection Inventory Practical problems Compatibility with EC law Effectiveness of the regulations General conclusions with respect to fiscal measures meant to stimulate environmental protection Fiscal liabilities with respect to environmental legislation Inventory General conclusions with respect to fiscal environmental liabilities 88 Environmental Taxes and Charges in the Single Market: A Communication from the Commission 91 Index 117
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