EU Tax Policy vs National Sovereignty of Member

EU Tax Policy vs. National Sovereignty of Member States Michal Radvan

www. law. muni. cz Aim of the Contribution n Level of tax harmonization n Taxes to be harmonized 2

www. law. muni. cz Tax harmonization n One of the most discussed issues in EU n Proponents point to the need for uniform rules in connection with the growth of international trade (increasing number and importance of multinational companies and their subsidiaries, the movement of capital and people - residents of one country working in another country). This leads to a conflict of individual tax systems that have been around for decades or even centuries built primarily with regard to national traditions, economic status, political and social developments and also taking into account the natural conditions, religion, etc. n Advocates of national interest: fiscal policy should remain the full responsibility of individual EU Member States - a loss of competitive advantage especially in CEE countries

www. law. muni. cz Tax harmonization n mechanism to remove tax provisions that either create obstacles to the functioning of the internal market or distort competition n purpose of achieving tax harmonization is not uniform tax system, but rather approach and harmonization of the various tax systems

www. law. muni. cz Phases of harmonization process n Select the tax to be harmonized, n Harmonize the tax base, or other structural components (tax subject) n Harmonize the tax rate (not always, tax rate can be a tool of competition for member states)

www. law. muni. cz Tax harmonization in EU n tool leading to the ultimate objective of creating a single market. Important obstacles to the single market are: n the tax burden on the free movement of persons and especially corporates and on the free cross-border movement of goods, services, capital and revenues, n different tax treatment of domestic and imported goods and services, n substantial differences between national tax legislation, which lead to market distortions, n difference in tax treatment between residents and non-residents, and domestic and foreign investments and incomes (in particular the double taxation of incomes from sources outside the country) n Tax harmonization is not just a goal - a final state, but the process itself.

www. law. muni. cz Tax harmonization as a process n Positive harmonization - the process of approximation of national tax systems through the implementation of the EU directives, regulations and other legislative instruments; the result (assuming the proper implementation of the directives into national legislation) is where all states have the same rules n Negative harmonization - the result of the activities of the European Court of Justice, where national jurisdictions - tax systems taking steps based on the tax case law of the Court; does not create the same rules for all Member States, as the case law is focused only on Member State which is a party in proceedings; ECJ case law, however, may be a good interpretive guide

www. law. muni. cz Negatives of harmonization n Higher tax rates n Slower economic growth n Does not prevent the excessive expansion of the public sector n It interferes with national sovereignty of member countries n May jeopardize the revenue of public budgets n The loss of fiscal autonomy of member states

www. law. muni. cz Income tax harmonization n n Stagnation of the harmonization process Exchange of information Avoidance of double taxation The fight against tax havens

www. law. muni. cz Start n Good conditions - in all countries, there were personal income tax and corporate income tax (excluding Italy) n Emphasis on corporate taxes (remove barriers of the common market functioning, mobility of capital, labor immobility)

www. law. muni. cz Sad facts n Limiting fiscal sovereignty - the unwillingness n The unanimous adoption of directives n Differences in accounting systems (tax vs. Anglo. Saxon) n Differences in structural components - social aspects (children, disability - from tax base or tax), rate (bands, progressivity), application of losses, investment incentives, depreciation n Luxembourg - 17 zones n The only rate - BLR, LAT, LTH, ROM, SVK n Denmark - up to 59% n Romania - 10%

www. law. muni. cz 4 possibilities n Taxation in the home country - optional taxation in each country or just in home country n Common Consolidated Tax Base - based on choice (CCCTB) n European corporate tax - for large multinational companies, at EU level, uniform rate n Mandatory harmonized tax base - mandatory, even for companies operating in only one Member State

www. law. muni. cz Common Consolidated Tax Base n The only rules within the EU for the determination of the tax base, which would subsequently be divided into subsidiaries and the national tax rate is to be applied n n n Transparent effective rate and fair tax competition Removing obstacles to cross-border mergers Reduce costs Elimination of problems with transfer pricing Losses in one country and gain in another country - tax neutrality n Not for non-european small companies

www. law. muni. cz Taxation in the home country n The tax base of all companies in the group would be set as a consolidated tax base under the laws of the State of management, then divided by the subsidiaries and the national tax rate should be applied n For small companies n Effective and cheap n It is not harmonization, but rather the possibility for competition

www. law. muni. cz The Merge Directive n The main consequence is the possibility of deferral of tax liability that arises from capital gains in case of merger or division of a company, transfer of assets or exchange of shares n The aim is to prevent the taxation of profit, which may arise during the merger because of the difference between the value of the transferred assets and liabilities and their accountings amounts

www. law. muni. cz The Parent-Subsidiary Directive n The aim of the Directive is to eliminate the double taxation of corporate profits paid by group companies resident in a Member State to the parent company located in another Member State. At least, parent company can deduct the tax paid by the daughter in another country from the tax base.

www. law. muni. cz The Savings Directive n The aim is to prevent tax evasion to individuals who derive interest income from other Member States n Not applicable to payment of dividend

www. law. muni. cz The Interest and Royalties Directive n It introduces a unified system of taxation of interest income and royalties between related parties, if they are paid over national borders

www. law. muni. cz Conclusion n It is very likely that there will not be any deepen fiscal harmonization in the field of direct taxation in the near future n Member States have no will to give up more of their sovereign power n There must be unanimous agreement of all Member States in case of adoption of tax issues

www. law. muni. cz VAT harmonization n Almost finished with the exemption of tax rates

www. law. muni. cz Start n 2 systems of indirect taxation n France: VAT - a general consumption tax, imposed on the added value n Other countries: cumulative cascade system of turnover tax - a tax imposed on the gross value of production; the number of production stages affects the size of the resulting tax; this system causes distortion of the market environment, as the tax burden is increased in proportion to the length of the production / distribution chain; it is necessary for manufacturers to integrate; does not cover services (lawnmower vs. gardening services)

www. law. muni. cz VAT n VAT is the only way n The principle of the country of destination, as the principle of the country of origin assumes a uniform rate

www. law. muni. cz Directive no. 77/388/EEC (6 th Directive) n n n Basic rules Rules for tax base Territory Subjects Rates – basic 15%, reduces 5% n Amended by directive no. 2006/112/EC (7 th. Dir. )

www. law. muni. cz Conclusion n Structural harmonization is completed, there is a single system of indirect taxation n Incomplete issue of tax rates harmonization (interference with national interests, instrument of fiscal policy, the budget revenue, unwillingness to enforce the implementation of the EC Directives, national traditions) n US various sales tax in each country, do not cause market distortions n The minimum amount of the reduced rate is not respected n It maintains the principle of the country of destination, as the country of origin principle would require tax rate unification, but this has proven very effective

www. law. muni. cz Excise taxes harmonization n fiscal plans, political aspects, regulation of consumption, permanent consumption, luxury, harmfulness n Harmonized: tobacco and tobacco products, alcoholic beverages (spirits, beer, wine), mineral oils, energy n Non-harmonized: cars, fur products, guns, playing cards, roulette, etc.

www. law. muni. cz Harmonization process n Very advanced n Efforts to unify rates (favoring domestic producers is limited, resp. impossible) resulted in at least minimum rates n It relies on spontaneous harmonization process - a country with high rates will have to reduce rates to the level in other countries n The principle of the country of destination (country of origin is impossible with respect to different rates)

www. law. muni. cz Directive 72/43/EEC n System od excise taxes (mineral oils, tobacco, spirit, beer, wine) n abolish other excise taxes, except taxes that do not need border controls or additional costs of international trade

www. law. muni. cz Directive 92/12/EEC n Horizontal directive n Single Customs Tariff to identify the product n admits other indirect taxes such as for environmental reasons - eg taxation of waste (Sweden, Denmark), emissions (Italy, Lithuania), fertilizers (Sweden, Denmark) and air transport (UK, France) n Replaced by Directive 2008/118/EC

www. law. muni. cz Structural directives n Tax bases

www. law. muni. cz Directive on the rates approximation n Minimal rates

www. law. muni. cz Conclusion n Structural harmonization is completed, there is a single system of indirect taxation n Incomplete issue of harmonization of tax rates (national interests, instrument of fiscal policy, the budget revenue, unwillingness to enforce the implementation of the EC Directives, national traditions) n The principle of the country of destination maintains, as the country of origin principle would require tax rates unification (hard to determine where purchased goods was made), but this has proven very effective

www. law. muni. cz Taxes on motor vehicles n Not in USA n Europe, Japan n n Registration tax (to be abolished) Regular tax – ones in EU, eco tax? Fuel tax, Vignettes, Toll systems

www. law. muni. cz „Eurovignette“ Directive n For all vehicles above 3, 5 tons n modifies somewhat broader than only toll (performance fee) and the user (time) fee n generally controls the regular tax on motor vehicles n requirement to collect tax only in the Member State in which the vehicle is registered n minimum tax rate n tolls and time-based charges may be levied only for the use of multi-lane highways or roads for motor vehicles for the use of bridges, tunnels and mountain passes n maximum rates for tolls and time-based charges

www. law. muni. cz Interoperability Directive n the obligation to use in the implementation of toll systems only satellite technology, GSM, or microwave n Preferred mobile technology GSM and GPS satellite due to their intended use within the system Galileo

www. law. muni. cz Other taxes n Tax on Air tickets? n Property tax (tax on immovables) – is there any need to unify? n Transfer taxes (on sales, gift tax, inheritance tax)

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