9 and 27 June 2016, the European Commission published the non-confidential versions of its respective decisions that selective tax advantages for Fiat Finance and Trade (FFT) in Luxembourg and Starbucks in the Netherlands are illegal under EU state aid rules.
In October last year the Commission decided that rulings provided to Fiat by Luxembourg and Starbucks by the Netherlands constituted unlawful state aid and that the countries would have to recover €20m to €30m from each company to claw back the benefits of the state aid received.
Formal European Commission investigations have also been launched into rulings given by Luxembourg to Amazon and McDonald’s and Ireland to Apple to see whether they give advantages not available to all companies.
21 June 2016, the European Council agreed on a draft directive addressing tax avoidance practices commonly used by large companies. The directive is part of a January 2016 package of Commission proposals to strengthen rules against corporate tax avoidance. The package builds on 2015 OECD recommendations to address tax base erosion and profit shifting (BEPS).
The directive addresses situations where corporate groups take advantage of disparities between national tax systems in order to reduce their overall tax liability. Corporate taxpayers may benefit from low tax rates or double tax deductions. Or they can ensure that categories of income remain untaxed by making it deductible in one jurisdiction whilst in the other it is not included in the tax base.
The draft directive covers all taxpayers that are subject to corporate tax in a member states, including subsidiaries of companies based in third countries. It lays down anti-tax-avoidance rules in five specific fields:
The directive will ensure that the OECD anti-BEPS measures are implemented in a coordinated manner in the EU, including by seven member states that are not OECD members. Furthermore, pending a revised proposal from the Commission for a common consolidated corporate tax base (CCCTB), it takes account of discussions since 2011 on an existing CCCTB proposal within the Council.
Three of the five areas covered by the directive – the interest limitation rules, the CFC rules and the rules on hybrid mismatches – implement OECD best practice. The other two others deal with BEPS-related aspects of the CCCTB proposal.
Member states will have until 31 December 2018 to transpose the directive into their national laws and regulations, except for the exit taxation rules, for which they will have until 31 December 2019. Member states that have targeted rules that are equally effective to the interest limitation rules may apply them until the OECD reaches agreement on a minimum standard or until 1 January 2024 at the latest.
Pierre Moscovici, Commissioner for economic and financial affairs, taxation and customs, said: “For too long, some companies have been able to take advantage of the mismatches between different Member States tax systems to avoid billions of euros in tax. I congratulate our member states who are now fighting back and working together to make the changes needed to ensure that these companies pay their fair share of tax.”
For the rest of the January 2016 anti-tax-avoidance package, on 25 May the Council approved:
Conclusions on the third country aspects of tax transparency.
8 June 2016, the European Parliament agreed to set up an inquiry committee into the “Panama Papers” revelations, of detailed information on offshore companies and their ultimate beneficiaries.
The committee is to investigate alleged contraventions and maladministration in the application by the EU Commission or member states of EU laws on money laundering, tax avoidance and tax evasion. It will have 65 members and twelve months to present its report.
The committee’s brief will cover an inquiry into the alleged failure by several member states to take appropriate measures to prevent the operation of vehicles that conceal their ultimate beneficial owners or other vehicles and intermediaries that allow the facilitation of money laundering, as well as tax evasion and tax avoidance in other member states.
In setting out the mandate, the Parliament’s president disclosed that the Panamanian revelations involved 12 heads of state (including six in activity), 128 politicians or high level civil servants and 29 members of the Forbes 500 list.
3 June 2016, the Inland Revenue (Amendment) (No.2) Ordinance 2016, which introduces a concessionary profits tax rate of 8.25% – 50% of the prevailing corporate tax rate – for qualifying corporate treasury centres (CTCs) and more generous rules for interest deductibility of intragroup financing, was gazetted.
Passed by the Legislative Council on 26 May, the new law also modifies the profits tax and stamp duty treatment in respect of regulatory capital securities issued by banks to comply with the Basel III capital adequacy requirement.
Secretary for Financial Services and the Treasury, Professor K C Chan, said the new CTC scheme, which applies as of 1 April, would provide “a conducive environment for attracting multinational and Mainland corporations to centralise their treasury functions in Hong Kong, thereby enhancing the competitiveness of our financial markets and contributing to the development of a headquarters economy.”
The changes to the rules on intragroup financing, also effective as of 1 April, remove current restrictions that limit interest deductions to cases where the interest income of the lender is chargeable to Hong Kong profits tax.
The government said it would be issuing further guidance on the operation of the new rules and on anti-avoidance provisions.
The Ordinance reflects Hong Kong’s increasing use of tax incentives to encourage the development of strategic sectors and to improve its position in respect of regional competitors, particularly Singapore. Between 2005 and 2015, the number of headquarters of global companies in Singapore increased from 3,600 to 12,600, according to Monetary Authority of Singapore and industry survey figures.
The incentive regime for CTCs is designed to complement Hong Kong’s geographic and cultural advantages as the traditional gateway to China and to capitalise on its broad pool of financial and entrepreneurial talent and expanding network of double taxation agreements. To date, 33 such agreements have been signed.
29 June 2016, the Cyprus Ministry of Finance announced that India and Cyprus had completed negotiations for a new tax treaty that allows for source-based taxation of capital gains from the alienation of shares. Under the deal, Cyprus will be removed from India’s blacklist of “notified jurisdictional areas”.
Under the existing tax treaty, India does not have the right to tax capital gains of Cypriot residents from the sale of shares of Indian companies. This provision, plus the fact that Cyprus does not impose capital gains tax, resulted in such disposals being free of tax. The renegotiated treaty will restore India’s right to tax these capital gains.
The move follows a similar provision, which was agreed to by the governments of India and Mauritius on 10 May under a new treaty protocol. From April 2000 to March 2016, India received foreign direct investment (FDI) worth Rs 42,680.76 crore (approx. US$ 91.5 billion) from Cyprus, according to data from the Department of Industrial Policy and Promotion.
As is the case in the Mauritius/India protocol, India and Cyprus have agreed to generous grandfathering provisions. For investments undertaken prior to 1 April 2017, the right to tax the disposal of such shares at any future date remains with the contracting state of residence of the vendor.
The Ministry of Finance also said India has agreed to retroactively rescind Cyprus’s placement on India’s blacklist of “notified jurisdictional areas” when the revised treaty enters into force. In November 2013, India designated Cyprus as a notified jurisdictional area because of its failure to share tax information adequately. Under Indian law, the designation resulted in enhanced reporting requirements and reduced tax deductions for transactions with Cyprus, as well as increased Indian withholding taxes on Cypriot residents.
15 June 2016, Swiss State Secretary for International Financial Matters Jacques de Watteville, and India’s Revenue Secretary Hasmukh Adhia issued a joint statement agreeing to further improve the cooperation under the Swiss-Indian Double Taxation Agreement, as revised by the Protocol of 30 August 2010. To begin with, a team of officers from India would visit Switzerland for bilateral discussions towards swift resolution of pending exchange of information requests.
On the issue of requests based on what Switzerland considers as data obtained in breach of Swiss law, Adhia welcomed the decision of the Swiss Federal Council to dispatch to the Swiss Parliament a proposal to revise the Tax Administrative Assistance Act in order to clarify, in accordance with the OECD standard, the possibility to cooperate on requests based on data obtained in breach of Swiss law.
State Secretary de Watteville said Switzerland now had the necessary legal bases to begin with the implementation of automatic exchange of information (AEOI) under common reporting standard (CRS). Recalling the commitment of both the countries to the global standard on AEOI, the secretaries initiated discussions for the implementation of AEOI between the two countries and agreed to work towards concluding the agreement within a reasonable timeframe keeping in view their national parliamentary procedures and the need of a level playing field.
They agreed that experts of both countries would convene swiftly at technical level not later than mid-September 2016 to further discuss the modalities for the reciprocal bilateral implementation of AEOI between India and Switzerland with the view to reaching an agreement at the earliest, possibly by the end of the year.
1 June 2016, Jamaica and Uruguay became the 95th and 96th jurisdictions to sign the Multilateral Convention on Mutual Administrative Assistance in Tax Matters. They were followed by Dominican Republic and Nauru on 28 June. Nauru and Brazil have also deposited their instrument of ratification, which signifies that the Convention will enter into force on 1 October 2016.
The Convention was developed jointly by the OECD and the Council of Europe in 1988 and amended in 2010 to respond to the G20’s request that it be aligned to the international standard on exchange of information and to open it to all countries.
It provides for all forms of administrative assistance in tax matters: exchange of information on request, spontaneous exchange, automatic exchange, tax examinations abroad, simultaneous tax examinations and assistance in tax collection. It guarantees extensive safeguards for the protection of taxpayers’ rights.
The Convention is now regarded as the primary instrument for swift implementation of the new Standard for Automatic Exchange of Financial Account Information in Tax Matters developed by the OECD and G20 countries, as well as automatic exchange of country-by-country reports under the OECD/G20 Base Erosion and Profit Shifting (BEPS) Project.
Nauru also signed the Multilateral Competent Authority Agreement, which implements the Automatic Exchange of Financial Account Information, which Nauru has committed to implement with first exchanges by 2018.
1 June 2016, the Inland Revenue Authority of Singapore announced that a revised tax treaty between Singapore and France, signed on 15 January 2015, had entered into force following ratification. It will be effective from 1 January 2017.
The revised treaty provisions include an increase in the time threshold for the creation of a construction permanent establishment (PE), exemption or reduction of withholding tax on dividends and interest and introduction of a “main purpose test” general anti-abuse rule.
The revised treaty provides a reduced withholding tax rate on dividends of 5% (currently 10%) if the recipient is the beneficial owner of the dividends and owns directly or indirectly at least 10% of the share capital of the company paying the dividends. In other cases, a reduced withholding tax rate of 15% continues to apply. There is currently no withholding tax on dividends in Singapore, so this provision currently applies only to dividends paid in France.
The revised treaty maintains the 10% withholding tax on interest and zero withholding on royalties. However it eliminates the “matching credit” on royalties whereby, under the existing treaty, France allows to credit against French tax an amount equal to 10% of the gross amount of the royalties which arise from sources within Singapore that qualify for treaty exemption.
The new treaty also introduces an anti-abuse rule that denies tax treaty benefits where the “main purpose” of a transaction is to secure treaty benefits contrary to the purposes of the treaty. It further includes agreement to resolve treaty disputes through a mutual agreement procedure and to exchange tax information between the tax administrations of both countries.
27 June 2016, UK chancellor George Osborne said contingency plans were in place to shore up the economy amid ongoing market volatility as he sought to reassure financial markets after Britain’s shock vote to exit the European Union. Prime Minister David Cameron resigned.
Osborne later announced plans to cut corporation tax from 20% to less than 15% as part of a five-point plan to build a “super competitive economy” with low business taxes and a global focus.
In his first interview since the UK voted to leave the EU, Osborne told the Financial Times: “We must focus on the horizon and the journey ahead and make the most of the hand we’ve been dealt.” He said Britain should “get on with it” to prove to investors that the country was still “open for business”.
Beside the tax cut, the chancellor said his five-point plan included focusing on a new push for investment from China, ensuring support for bank lending, redoubling efforts to invest in the Northern powerhouse and maintaining the UK’s fiscal credibility.
Before the referendum Osborne threatened to make £30 billion of tax rises or spending cuts in a post-Brexit emergency Budget. After the referendum he struck a more cautious note, awaiting official forecasts before announcing any new measures in the Autumn Statement.
The chancellor accepted that Britain faced a “very challenging time” and urged the Bank of England to use its powers to avoid “a contraction of credit in the economy”, reminiscent of the squeeze during the height of the financial crisis in 2008.
Osborne said Britain would aggressively seek new bilateral trade deals and that he would lead an extended visit to China this year, in an attempt to keep inward investment flowing.
On the public finances Osborne promised to “maintain the consolidation that we put in place last year” and said a review of the structural damage caused by Brexit would be conducted in the autumn. He dropped his target of a 2020 budget surplus, as the Treasury focus shifted away from austerity to policies to stop the shock of Brexit turning into a severe recession.
Longer term, the likelihood is that some key directives already approved at EU level will never be transposed into UK law, while others now in effect may be repealed. Existing EU regulations, which once adopted by Brussels have direct effect in member states, will have to be specifically enacted by the UK if they are to continue in effect.
The past two years have seen the EU adopt several controversial directives, including the Fourth Anti-Money Laundering Directive (4ML). Some aspects of this directive, such as the mandatory register of trusts, were accepted by the UK only after much debate. The 4ML directive has not yet been transposed into UK law, and the controversial clauses may now be re-examined.
Pressure by the European Commission to move towards a common consolidated corporate tax basis, on which corporate profits would be assessed, will no longer be relevant to the UK.
16 and 20 June 2016, the governments of Singapore and Hong Kong (China) respectively announced their decision to participate in the OECD/G20 Base Erosion and Profit Shifting (BEPS) Project. Both join BEPS as associates.
In becoming associates to the BEPS Project, Singapore and Hong Kong have committed to the comprehensive BEPS Package, including its four minimum standards – harmful tax practices, tax treaty abuse, country-by-country reporting and improvements in cross-border tax dispute resolution.
Singapore’s Deputy Prime Minister and Minister for Finance Tharman Shanmugaratnam said: “Singapore is committed to working with the international community to counter artificial shifting of profits, and continues to welcome substantive economic activities. We will be actively involved with the OECD and G20 in ensuring the consistent implementation of the BEPS standards across all jurisdictions, so as to ensure a level playing field.”"
Hong Kong Secretary for Financial Services and the Treasury Professor K C Chan said: "Noting that the timing of implementation may vary to reflect the level of development of countries and jurisdictions, Hong Kong's commitment to implement the BEPS package is subject to timely passage of the necessary legislative amendments. In coming up with the timelines for implementation, we will take into account relevant factors such as the characteristics of the domestic tax regime, the envisaged magnitude of legislative changes involved and the practical need to prioritise amongst the BEPS measures.”
In February, the OECD agreed a new framework to broaden participation in the BEPS Project. The new forum will provide for all interested countries and jurisdictions to participate as BEPS associates on an equal footing with the OECD and G20 members on the remaining standard setting under the BEPS Project, as well as the review and monitoring of the implementation of the BEPS package.
Representatives of more than 80 countries and jurisdictions met in Kyoto, Japan, on 30 June for the inaugural meeting of the new Forum, which operates on an equal footing with the OECD’s Committee on Fiscal Affairs. Thirty-six countries and jurisdictions have already formally joined the new inclusive framework, bringing to 82 the total number of countries and jurisdictions participating on an equal footing in the Project. The OECD said the other 21 countries and jurisdictions attending were likely to join in the coming months.
“Today we launch a new era in international tax,” said Pascal Saint-Amans, director of the OECD Centre for Tax Policy and Administration. “Through their participation in the decision-making as well as the technical working groups of the OECD's Committee on Fiscal Affairs, the members of the inclusive framework will now have a direct influence in shaping international tax rules to tackle BEPS and ensuring a level playing field.”
In Kyoto, Argentina, Curacao, Georgia, Korea, and Uruguay signed the Multilateral Competent Authority agreement for the automatic exchange of Country-by-Country reports (CbC MCAA) under the OECD’s BEPS Project, bringing the total number of signatories to 44 countries.
The CbC MCAA allows all signatories to bilaterally and automatically exchange Country-by-Country Reports with each other, as contemplated by Action 13 of the BEPS Action Plan. It will help ensure that tax administrations obtain a complete understanding of how multinational enterprises structure their operations, while also ensuring that the confidentiality of such information is safeguarded.
30 June 2016, Spanish tax inspectors raided the Madrid offices of US multinational Google looking for “possible evidence of taxation in Spain that is less than what is appropriate given [Google’s] real activity in the country” according to a source involved in the investigation.
It is the latest in a series of tax investigations throughout Europe targeting the technology company. In May, French tax investigators searched Google’s offices in Paris as part of a tax dispute in which French authorities are seeking more than €1 billion in back taxes and fines from the firm. Italy is also pursuing Google for around €300 million in back taxes.
“We comply with the tax law in Spain, as in every other country in which we operate,” Google said in a statement. “We are cooperating fully with the authorities in Madrid to answer their questions, as always.”
10 June 2016, the Swiss Federal Council adopted a dispatch on amending the Tax Administrative Assistance Act to enable it to respond to information requests if a foreign country obtains stolen data via normal administrative assistance channels or from public sources. This will not apply if a country actively acquires stolen data outside of administrative assistance proceedings.
The Federal Council had previously proposed easing administrative assistance practices in the case of stolen data in 2013 with the first revision of the Tax Administrative Assistance Act. However, the majority of the cantons, parties and business associations then rejected the proposal.
Since that time, the Council said, international practice has established that exceptions to the exchange of information will be tolerated only on a very restricted basis – requests motivated by racial, political or religious persecution. With the new proposed legislative amendment, the Federal Council said it was seeking to clarify the legal situation and take account of both international requirements and the OECD Global Forum's recommendations with regard to administrative assistance in tax matters.
The decision followed a consultation launched in September last year, which showed that most of Switzerland's cantons now support the principle. The Federal Council said it believes that the proposal is necessary to safeguard Switzerland's interests. The bill is due to be discussed by Parliament in 2016.
17 June 2016, the Swiss Parliament approved the final bill on Corporate Tax Reform III, which is designed to align the Swiss corporate tax system with the latest international standards by removing certain preferential tax regimes and introducing competitive replacement measures.
The reform would phase out all special corporate tax regimes, such as the mixed, domiciliary, holding and principal company regimes, as well as the Swiss finance branch regime. Federal and cantonal tax holidays would not be affected by the reform and would continue to be granted.
A number of measures are included to compensate for the phase out, which include:
To boost the attractiveness of Switzerland as a business location and to compensate the abolition of the cantonal tax regimes, most cantons are expected to lower their ordinary corporate tax rates. In order to compensate for the anticipated losses in revenues, the share of the cantons in the direct federal tax revenue will be increased from 17% to 21.2%.
The final bill is subject to an optional referendum. The target date for the entry into force of the reform package is currently 1 January 2019.
25 May 2016, the Swiss Federal Council set 1 July 2016 as the date for the entry into force of the Foreign Illicit Assets Act and related ordinances, which strengthens its legislative framework for the freezing, confiscation and restitution of illicitly acquired assets in cases which cannot be solved on the basis of the Act on Mutual Assistance in Criminal Matters. The Act was approved by Parliament in December 2015.
The Act aims to address situations where foreign leaders have enriched themselves by misappropriating assets through corrupt or criminal means and have then transferred those assets to financial centres in other countries.
The law also provides for measures to provide legal support or second experts to assist states where the illicitly acquired assets originated in recovering them. The approach chosen by the Swiss authorities to expedite the mutual legal assistance process is to order the preventive freezing of assets. In the event that the mutual legal assistance proceedings do not succeed, this approach also allows the Federal Council to take the measures to confiscate and return the assets provided for by the Foreign Illicit Assets Act.
Three separate ordinances implement the preventive freezing of the assets of former presidents Zine El Abidine Ben Ali of Tunisia, Hosni Mubarak of Egypt and Viktor Yanukovych of Ukraine, and their respective inner circles. These ordinances are based on the Foreign Illicit Assets Act rather than on the Federal Constitution, as was previously the case.
The assets of Tunisian, Egyptian and Ukrainian origin will be frozen until 18 January 2017, 10 February 2017 and 27 February 2017, respectively. Shortly before these deadlines the Federal Council will examine, in each case, whether or not it is appropriate to extend the period during which the assets are frozen within the limits provided for by the Foreign Illicit Assets Act.
In addition to these three ordinances, the Foreign Illicit Assets Act has also required certain technical modifications to the Ordinance on the Money Laundering Reporting Office Switzerland, which will also come into effect on 1 July 2016. These modifications result from the fact that under the Foreign Illicit Assets Act, the Money Laundering Reporting Office Switzerland is a “one-stop-shop” that is now responsible for receiving information about assets of foreign politically exposed persons when they are affected by an asset freeze ordered by the Federal Council.
Over the last 15 years, Switzerland has been able to return assets totalling almost CHF 1.8 billion – more than any other financial centre. The Foreign-Policy Strategy 2016-2019 mandates that Switzerland will continue its resolute action to recover the illicit assets of politically exposed persons.
22 June 2016, the US Justice Department announced that it had voluntarily dismissed its summons enforcement action against UBS because the Swiss bank had fully complied with an Internal Revenue Service (IRS) summons for bank records held in its Singapore office.
The IRS served an administrative summons on UBS for records pertaining to accounts held by Ching-Ye “Henry” Hsiaw. According to the petition, the IRS needed the records in order to determine Hsiaw’s federal income tax liabilities for the years 2006 through 2011. Hsiaw transferred funds from a Switzerland-based account with UBS to the UBS Singapore branch in 2002, according to the declaration of a revenue agent.
UBS resisted the summons when it was first issued in February this year, leading the US authorities to seek a court order to enforce it. However, after some negotiation, UBS agreed to comply without the need for court enforcement. It delivered up the relevant documents in two batches, on 31 May and 10 June.
UBS indicated that it handed over the data only with the permission of both the client and Singaporean authorities. “UBS confirms that it complied with the summons based on client consent in accordance with Singapore law,” the bank said in a statement.
“The Department of Justice and the IRS are committed to making sure that offshore tax evasion is detected and dealt with appropriately,” said Acting Assistant Attorney General Caroline Ciraolo of the Tax Division. “One critical component of that effort is making sure that the IRS has all of the information it needs to audit taxpayers with offshore assets. In this case, we filed a petition to enforce a summons for offshore documents, but that’s only one of the tools we have available for gathering information.”
15 June 2016, the UK government published legislation to bring into force amendments to the tax treaties between the UK and the Crown Dependencies of Guernsey, Jersey and the Isle of Man. The treaty protocols will introduce modern OECD provisions allocating the primary taxing right over income, profits and gains from land to the jurisdiction in which that land is situated.
Legislation will also be enacted to tax trading profits derived from land in the UK. Those rules will apply equally to resident and non-resident businesses, and will not depend on the existence of a "permanent establishment" in the UK.
These changes are connected with the offshore property developers’ measures announced in Budget 2016, to be legislated for in the Finance Bill. They remove a potential loophole that enabled property development companies located in the Crown dependencies to argue that the tax treaties prevent the UK from taxing them on the full amount of their profits from developing UK land.
Financial Secretary to the Treasury David Gauke told the Delegated Legislation Committee: “The Crown dependencies have agreed to the changes being effective from Budget day, 16 March 2016, which aids the effectiveness of targeted anti-avoidance rules that protect the new tax charge in the period between its announcement on 16 March 2016 and the introduction of the legislation. That demonstrates the continued co-operation between the UK and the Crown dependencies to tackle tax avoidance and evasion.”