23.8.2018 |
EN |
Official Journal of the European Union |
C 298/323 |
P8_TA(2017)0135
Hybrid mismatches with third countries *
European Parliament legislative resolution of 27 April 2017 on the proposal for a Council directive amending Directive (EU) 2016/1164 as regards hybrid mismatches with third countries (COM(2016)0687 — C8-0464/2016 — 2016/0339(CNS))
(Special legislative procedure — consultation)
(2018/C 298/47)
The European Parliament,
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having regard to the Commission proposal to the Council (COM(2016)0687), |
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having regard to Article 115 of the Treaty on the Functioning of the European Union, pursuant to which the Council consulted Parliament (C8-0464/2016), |
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having regard to the reasoned opinions submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Netherlands Senate, the Netherlands House of Representatives and the Swedish Parliament, asserting that the draft legislative act does not comply with the principle of subsidiarity, |
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having regard to the other contributions submitted by the Czech Senate, the German Bundesrat, the Spanish Parliament and the Portuguese Parliament on the draft legislative act, |
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having regard to its resolution of 25 November 2015 on tax rulings and other measures similar in nature or effect (1), |
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having regard to its resolution of 16 December 2015 with recommendations to the Commission on bringing transparency, coordination and convergence to corporate tax policies in the Union (2), |
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having regard to its resolution of 6 July 2016 on tax rulings and other measures similar in nature or effect (3), |
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having regard to the Commission’s decision of 30 August 2016 on State aid SA.38373 (2014/C) (ex 2014/NN) (ex 2014/CP) implemented by Ireland to Apple, and to the Commission’s open investigations into Luxembourg’s alleged aid to McDonald’s and Amazon, |
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having regard to the ongoing work of its Committee of Inquiry to investigate alleged contraventions and maladministration in the application of Union law in relation to money laundering, tax avoidance and tax evasion, |
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having regard to Rule 78c of its Rules of Procedure, |
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having regard to the report of the Committee on Economic and Monetary Affairs (A8-0134/2017), |
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Approves the Commission proposal as amended; |
2. |
Calls on the Commission to alter its proposal accordingly, in accordance with Article 293(2) of the Treaty on the Functioning of the European Union; |
3. |
Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament; |
4. |
Asks the Council to consult Parliament again if it intends to substantially amend the Commission proposal; |
5. |
Instructs its President to forward its position to the Council, the Commission and the national parliaments. |
Amendment 1
Proposal for a directive
Recital 4
Text proposed by the Commission |
Amendment |
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Amendment 2
Proposal for a directive
Recital 4 a (new)
Text proposed by the Commission |
Amendment |
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Amendment 3
Proposal for a directive
Recital 5
Text proposed by the Commission |
Amendment |
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Amendment 4
Proposal for a directive
Recital 5 a (new)
Text proposed by the Commission |
Amendment |
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Amendment 5
Proposal for a directive
Recital 6
Text proposed by the Commission |
Amendment |
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Amendment 6
Proposal for a directive
Recital 7
Text proposed by the Commission |
Amendment |
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Amendment 7
Proposal for a directive
Recital 7 a (new)
Text proposed by the Commission |
Amendment |
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Amendment 8
Proposal for a directive
Recital 8
Text proposed by the Commission |
Amendment |
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Amendment 9
Proposal for a directive
Recital 9
Text proposed by the Commission |
Amendment |
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Amendment 10
Proposal for a directive
Recital 9 a (new)
Text proposed by the Commission |
Amendment |
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Amendment 11
Proposal for a directive
Recital 10
Text proposed by the Commission |
Amendment |
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deleted |
Amendment 12
Proposal for a directive
Recital 11
Text proposed by the Commission |
Amendment |
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deleted |
Amendment 13
Proposal for a directive
Recital 12
Text proposed by the Commission |
Amendment |
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deleted |
Amendment 14
Proposal for a directive
Recital 15
Text proposed by the Commission |
Amendment |
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Amendment 15
Proposal for a directive
Recital 17
Text proposed by the Commission |
Amendment |
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Amendment 16
Proposal for a directive
Recital 19
Text proposed by the Commission |
Amendment |
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Amendment 17
Proposal for a directive
Recital 21
Text proposed by the Commission |
Amendment |
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Amendment 18
Proposal for a directive
Recital 21 a (new)
Text proposed by the Commission |
Amendment |
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Amendment 19
Proposal for a directive
Recital 23
Text proposed by the Commission |
Amendment |
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Amendment 20
Proposal for a directive
Recital 23 a (new)
Text proposed by the Commission |
Amendment |
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Amendment 21
Proposal for a directive
Article 1 — paragraph 1 — point - 1 (new)
Directive (EU) 2016/1164
Article 1 — paragraph 1 a (new)
Text proposed by the Commission |
Amendment |
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(-1) In Article 1, the following paragraph is added: |
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‘Article - 9a shall also apply to all entities that are treated as transparent for tax purposes by a Member State.’ |
Amendment 22
Proposal for a directive
Article 1 — paragraph 1 — point 1 — point a
Directive (EU) 2016/1164
Article 2 — point 4 — subparagraph 3
Text proposed by the Commission |
Amendment |
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deleted |
Amendment 23
Proposal for a directive
Article 1 — paragraph 1 — point 1 — point a a (new)
Directive (EU) 2016/1164
Article 2 — point 4 — subparagraph 3
Text proposed by the Commission |
Amendment |
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Amendment 24
Proposal for a directive
Article 1 — paragraph 1 — point 1 — point b
Directive (EU) 2016/1164
Article 2 — point 9 — subparagraph 1 — introductory part
Text proposed by the Commission |
Amendment |
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Amendment 25
Proposal for a directive
Article 1 — paragraph 1 — point 1 — point b
Directive (EU) 2016/1164
Article 2 — point 9 — subparagraph 1 — point b
Text proposed by the Commission |
Amendment |
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Amendment 26
Proposal for a directive
Article 1 — paragraph 1 — point 1 — point b
Directive (EU) 2016/1164
Article 2 — point 9 — subparagraph 1 — point c
Text proposed by the Commission |
Amendment |
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Amendment 27
Proposal for a directive
Article 1 — paragraph 1 — point 1 — point b
Directive (EU) 2016/1164
Article 2 — point 9 — subparagraph 1 — point c a (new)
Text proposed by the Commission |
Amendment |
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Amendment 28
Proposal for a directive
Article 1 — paragraph 1 — point 1 — point b
Directive (EU) 2016/1164
Article 2 — point 9 — subparagraph 1 — point c b (new)
Text proposed by the Commission |
Amendment |
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Amendment 29
Proposal for a directive
Article 1 — paragraph 1 — point 1 — point b
Directive (EU) 2016/1164
Article 2 — point 9 — subparagraph 2
Text proposed by the Commission |
Amendment |
A hybrid mismatch only arises to the extent that the same payment deducted, expenses incurred or losses suffered in two jurisdictions exceed the amount of income that is included in both jurisdictions and which can be attributed to the same source. |
A hybrid mismatch that is the result of differences in the recognition of payments, expenses or losses incurred by a hybrid entity or permanent establishment or is the result of differences in the recognition of a deemed payment between two parts of the same taxpayer only arises to the extent that the resulting deduction in the jurisdiction of source is set off against an item that is not included in both jurisdictions where the mismatch has arisen. However, in the event that the payment giving rise to that hybrid mismatch also gives rise to a hybrid mismatch that is attributable to differences in the legal characterisation of a financial instrument or of a payment made under it, or is the result of differences in the recognition of payments made to a hybrid entity or to a permanent establishment, the hybrid mismatch only arises to the extent that the payment gives rise to a deduction without inclusion. |
Amendment 30
Proposal for a directive
Article 1 — paragraph 1 — point 1 — point b
Directive (EU) 2016/1164
Article 2 — point 9 — subparagraph 3 — introductory part
Text proposed by the Commission |
Amendment |
A hybrid mismatch also includes the transfer of a financial instrument under a structured arrangement involving a taxpayer where the underlying return on the transferred financial instrument is treated for tax purposes as derived simultaneously by more than one of the parties to the arrangement, who are resident for tax purposes in different jurisdictions, giving rise to any of the following outcomes: |
A hybrid mismatch also includes the transfer of a financial instrument involving a taxpayer where the underlying return on the transferred financial instrument is treated for tax purposes as derived simultaneously by more than one of the parties to the arrangement, who are resident for tax purposes in different jurisdictions, giving rise to any of the following outcomes: |
Amendment 31
Proposal for a directive
Article 1 — paragraph 1 — point 1 — point b a (new)
Directive (EU) 2016/1164
Article 2 — point 9 a (new)
Text proposed by the Commission |
Amendment |
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Amendment 32
Proposal for a directive
Article 1 — paragraph 1 — point 1 — point b b (new)
Directive (EU) 2016/1164
Article 2 — point 9 b (new)
Text proposed by the Commission |
Amendment |
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Amendment 33
Proposal for a directive
Article 1 — paragraph 1 — point 1 — point c
Directive (EU) 2016/1164
Article 2 — point 11
Text proposed by the Commission |
Amendment |
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deleted |
Amendment 34
Proposal for a directive
Article 1 — paragraph 1 — point 1 — point c a (new)
Directive (EU) 2016/1164
Article 2 — point 11 a (new)
Text proposed by the Commission |
Amendment |
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Amendment 35
Proposal for a directive
Article 1 — paragraph 1 — point 3
Directive (EU) 2016/1164
Article 9 — paragraph 1
Text proposed by the Commission |
Amendment |
1. To the extent that a hybrid mismatch between Member States results in a double deduction of the same payment, expenses or losses, the deduction shall be given only in the Member State where such payment has its source, the expenses are incurred or the losses are suffered. |
1. To the extent that a hybrid mismatch results in a double deduction of the same payment, expenses or losses, the deduction shall be denied in the Member State that is the investor jurisdiction. |
To the extent that a hybrid mismatch involving a third country results in a double deduction of the same payment, expenses or losses, the Member State concerned shall deny the deduction of such payment, expenses or losses, unless the third country has already done so. |
In the event that the deduction is not denied in the investor jurisdiction, the deduction shall be denied in the payer jurisdiction. To the extent that a third country is involved, the burden of proof of demonstrating that a deduction has been denied by that third country shall be on the taxpayer. |
Amendment 36
Proposal for a directive
Article 1 — paragraph 1 — point 3
Directive (EU) 2016/1164
Article 9 — paragraph 2
Text proposed by the Commission |
Amendment |
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2. To the extent that a hybrid mismatch between Member States results in a deduction without inclusion, the Member State of the payer shall deny the deduction of such payment. |
2. To the extent that a hybrid mismatch results in a deduction without inclusion, the deduction shall be denied in the Member State that is the payer jurisdiction of such payment . Where the deduction is not denied in the payer jurisdiction, the Member State concerned shall require the taxpayer to include the amount of the payment that would otherwise give rise to a mismatch in the income in the payee jurisdiction . |
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To the extent that a hybrid mismatch involving a third country results in a deduction without inclusion: |
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Amendment 37
Proposal for a directive
Article 1 — paragraph 1 — point 3
Directive (EU) 2016/1164
Article 9 — paragraph 3
Text proposed by the Commission |
Amendment |
3. To the extent that a hybrid mismatch between Member States involving a permanent establishment results in non-taxation without inclusion , the Member State in which the taxpayer is resident for tax purposes shall require the taxpayer to include in the taxable base the income attributed to the permanent establishment. |
3. To the extent that a hybrid mismatch involves disregarded permanent establishment income which is not subject to tax in the Member State in which the taxpayer is resident for tax purposes, that Member State shall require the taxpayer to include in its taxable income the income that would otherwise be attributed to the disregarded permanent establishment. |
To the extent that a hybrid mismatch involving a permanent establishment situated in a third country results in non-taxation without inclusion, the Member State concerned shall require the taxpayer to include in the taxable base the income attributed to the permanent establishment in the third country. |
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Amendment 38
Proposal for a directive
Article 1 — paragraph 1 — point 3
Directive (EU) 2016/1164
Article 9 — paragraph 3 a (new)
Text proposed by the Commission |
Amendment |
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3a. Member States shall deny a deduction for any payment by a taxpayer to the extent that such payment directly or indirectly funds deductible expenditure giving rise to a hybrid mismatch through a transaction or a series of transactions. |
Amendment 39
Proposal for a directive
Article 1 — paragraph 1 — point 3
Directive (EU) 2016/1164
Article 9 — paragraph 4
Text proposed by the Commission |
Amendment |
4. To the extent that a payment by a taxpayer to an associated enterprise in a third country is set off directly or indirectly against a payment, expenses or losses which due to a hybrid mismatch are deductible in two different jurisdictions outside the Union, the Member State of the taxpayer shall deny the deduction of the payment by the taxpayer to an associated enterprise in a third country from the taxable base, unless one of the third countries involved has already denied the deduction of the payment, expenses or losses that would be deductible in two different jurisdictions. |
4. To the extent that a payment by a taxpayer to an entity in a third country is set off directly or indirectly against a payment, expenses or losses which due to a hybrid mismatch are deductible in two different jurisdictions outside the Union, the Member State of the taxpayer shall deny the deduction of the payment by the taxpayer in a third country from the taxable base, unless one of the third countries involved has already denied the deduction of the payment, expenses or losses that would be deductible in two different jurisdictions. |
Amendment 40
Proposal for a directive
Article 1 — paragraph 1 — point 3
Directive (EU) 2016/1164
Article 9 — paragraph 5
Text proposed by the Commission |
Amendment |
5. To the extent that the corresponding inclusion of a deductible payment by a taxpayer to an associated enterprise in a third country is set off directly or indirectly against a payment which due to a hybrid mismatch is not included by the payee in its taxable base, the Member State of the taxpayer shall deny the deduction of the payment by the taxpayer to an associated enterprise in a third country from the taxable base, unless one of the third countries involved has already denied the deduction of the non-included payment. |
5. To the extent that the corresponding inclusion of a deductible payment by a taxpayer in a third country is set off directly or indirectly against a payment which due to a hybrid mismatch is not included by the payee in its taxable base, the Member State of the taxpayer shall deny the deduction of the payment by the taxpayer in a third country from the taxable base, unless one of the third countries involved has already denied the deduction of the non-included payment. |
Amendment 41
Proposal for a directive
Article 1 — paragraph 1 — point 3 a (new)
Directive (EU) 2016/1164
Article - 9 a (new)
Text proposed by the Commission |
Amendment |
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‘Article - 9a |
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Reverse hybrid mismatches |
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Where one or more associated non-resident entities, holding a share of profit in a hybrid entity that is incorporated or established in a Member State, is located in a jurisdiction or jurisdictions that regard the hybrid entity as a taxable person, the hybrid entity shall be regarded as a resident of that Member State and taxed on its income to the extent that the income is not otherwise taxed under the laws of that Member State or any other jurisdiction.’ |
Amendment 42
Proposal for a directive
Article 1 — paragraph 1 — point 4
Directive (EU) 2016/1164
Article 9a — paragraph 1
Text proposed by the Commission |
Amendment |
To the extent that a payment, expenses or losses of a taxpayer who is resident for tax purposes in both a Member State and a third country, in accordance with the laws of that Member State and that third country, are deductible from the taxable base in both jurisdictions and that payment, those expenses or losses can be set-off in the Member State of the taxpayer against taxable income that is not included in the third country, the Member State of the taxpayer shall deny the deduction of the payment, expenses or losses, unless the third country has already done so. |
To the extent that a payment, expenses or losses of a taxpayer who is resident for tax purposes in both a Member State and a third country, in accordance with the laws of that Member State and that third country, are deductible from the taxable base in both jurisdictions and that payment, those expenses or losses can be set off in the Member State of the taxpayer against taxable income that is not included in the third country, the Member State of the taxpayer shall deny the deduction of the payment, expenses or losses, unless the third country has already done so. Such denial of deduction shall also apply to situations where a taxpayer is ‘stateless’ for tax purposes. The burden of proof of demonstrating that the third country has denied the deduction of the payment, expense or loss shall be on the taxpayer . |
(1) Texts adopted, P8_TA(2015)0408.
(2) Texts adopted, P8_TA(2015)0457.
(3) Texts adopted, P8_TA(2016)0310.