Global and EU Work on Tax Fairness
The requirement for unanimity amongst EU Member States on any legislative proposal tends to limit the amount of EU action on tax. This fact – and the global nature of the issues currently confronting tax policymakers particularly around erosion of the tax base – has helped to establish the Organisation for Economic Cooperation and Development (OECD) as the primary standard setter.
In summer 2013 the OECD, working to a mandate from the G20, published its Action Plan on Base Erosion and Profit Shifting (BEPS). The Action plan aiming to “provide countries with domestic and international instruments that will better align rights to tax with economic activity” contains provisions on preventing treaty abuse and interest deductibility, for example. The final OECD reports were released in October 2015 with certain specific areas being left open for further analysis.
Echoing the OECD project, the European Commission released an Action Plan on Corporate Taxation in June 2015 calling for the re-establishment of the link between taxation and where economic activity takes place. Further to the Commission’s Action Plan, in October the Commission launched a public consultation on the re-launch of the Common Consolidated Corporate Tax Base (CCCTB) to help identify the key measures it should cover. The CCCTB is a single set of rules that companies operating within the EU could use to calculate their taxable profits.
In January 2016, the European Commission released its Anti- Tax Avoidance Package (ATAP) consisting of both legislative and non-legislative elements designed to curb illicit tax practices, and specifically to implement 3 of the OECD BEPS standards in EU law. As part of the Package, the legislative proposal for an Anti-Tax Avoidance Directive (ATAD), also known informally as the BEPS Directive is the flagship project and addresses 6 areas: interest deductibility, controlled foreign companies, hybrid mismatch arrangements, switch-over clause, general anti-abuse rule and exit taxation.
Invest Europe position
The on-going work of the OECD has the potential to change existing tax norms for all investors, including those investing into private equity funds. Invest Europe therefore follows this work closely and has responded to the relevant OECD consultations, most notably on Treaty Abuse. Although targeted initially at the tax strategies of multinational corporations, this work has the potential to change existing tax rules more generally and thereby alter the tax environment for private equity funds as they invest internationally. Specifically, changes to the rules on treaty abuse for example may threaten private equity funds’ access to those tax treaties that are designed to prevent double taxation when a fund invests cross-border.
With regard to interest deductibility, this is important as the creation and on-going development of a business strongly depends on the fiscal environment present in that business’ jurisdiction. An important factor for financing is whether portfolio companies can deduct interest and interest related expenses (on both related and unrelated-party loans). These deductions help businesses to finance their growth and improve their competitive position, and it is crucial therefore that limits for interest deductibility are set at levels that encourage businesses to do so. Any move to limit the current practice of interest deductibility would inevitably result in higher-financing costs for businesses with a knock-on effect for providers of finance.
Joint Letter to OECD on non-CIV examples (BEPS -Action Point 6)>
3 February 2017, Invest Europe/AIC
Response to OECD Consultation on non-CIVs (BEPS -Action Point 6) >
22 April 2016, PAE-Invest Europe
March 2016, PAE-Invest Europe
Response to the consultation on the re-launch of the CCCTB >
8 January 2016, PAE-Invest Europe
Response to OECD-BEPS Consultation on Action 6 - Treaty Abuse >
June 2015, PAE-EVCA
Joint PEGCC/PAE Letter to the OECD on Interest Deductibility >
6 February 2015, PAE-PEGCC
Council Directive (EU) 2015/121 (Parent Subsidiary Directive) >
January 2015, EU Institutions
Response to OECD Consultation on Action 6 (Preventing Treaty Abuse) >
January 2015, PAE-EVCA
2nd OECD consultation on Action 6 (Preventing Treaty Abuse) >
November 2014, OECD
Response to OECD consultation on Action 2 – Neutralise the effects of Hybrid Mismatch Arrangements >
May 2014, PAE-EVCA
Response to the OECD Consultation on Action 6 - Preventing Treaty Abuse >
April 2014, PAE-EVCA
Discussion draft inviting public comments on Action 6 (Treaty Abuse) >
March 2014, OECD
BEPS Action Plan >
Summer 2013, OECD