kom (2015) 0302 - Ingen titel

Skatteudvalget 2015
KOM (2015) 0302
Offentligt

EUROPEAN

COMMISSION

Brussels, 17.6.2015

SWD(2015) 121 final

COMMISSION STAFF WORKING DOCUMENT

Corporate Income Taxation in the European Union

Accompanying the document

Communication from the Commission to the European Parliament and the Council

on a Fair and Efficient Corporate Tax System in the European Union: 5 Key Areas for

Action

{COM(2015) 302 final}

kom (2015) 0302 - Ingen titel

Contents

3.1.

3.1.1.

3.1.2.

3.1.3.

3.2.

3.2.1.

3.2.2.

3.2.3.

NTRODUCTION

............................................................................................................ 3

ONSULTATION OF

NTERESTED

ARTIES

.................................................................. 6

OMPETITION IN THE

UROPEAN

NION

........................................................... 7

OOT OF THE

ROBLEM

: W

HERE ARE

ROFITS TAXED

? ......................................... 7

ASIC

ECHANISM

................................................................................................ 7

HALLENGES DUE TO

LOBALIZATION

.................................................................. 8

OLICY

EACTION

......................................................................................... 9

MPIRICAL

VIDENCE

................................................................................................. 15

EVELOPMENT OF

ORPORATE

NCOME TAXATION

.................................................... 15

OBILITY OF CAPITAL

................................................................................................. 20

ROFIT

HIFTING

......................................................................................................... 22

PTIONS

..................................................................................................................... 27

EFERENCES

............................................................................................................................ 29

NNEX

1: S

TYLIZED FACTS ABOUT THE

CIT

IN THE

UROPEAN

NION

1995-2015

NNEX

2: A

PPLICATION OF THE

OMMISSION

ECOMMENDATION ON AGGRESSIVE

LANNING AND ON

EASURES TO

NCOURAGE

HIRD

OUNTRIES TO

PPLY

INIMUM

TANDARDS OF

OOD

OVERNANCE IN

ATTERS

NNEX

3: P

LATFORM FOR

OOD

OVERNANCE

NNEX

4: R

ELATIONS

ACTIONS AND

BEPS

INITIATIVE

kom (2015) 0302 - Ingen titel

NTRODUCTION

The taxation of multinational companies has come under scrutiny by tax

administrations, tax experts and the general public in recent years. More and more

evidence suggests that considerable amounts of corporate income from cross-border

activities can avoid taxation.

The business models of multinational companies have become

more complex, intra-group transactions have multiplied and multinationals' integrated value

chains make it difficult to determine where profits are created. Governments struggle to

determine within the current set of international tax rules which country should tax a

multinational's income.

Shifting income and capital across borders can lead to a loss of corporate income tax

revenues.

Many companies manipulate their internal prices and shift profits to low tax

jurisdictions. Digitalisation has made it easier for multinational companies to organise their

activities through off-shore financial centres, and to create sophisticated structures for tax

planning purposes. While differences in the statutory corporate income rates are one

important driver of profit shifting, also the effective tax rates companies face play a crucial

role since these rates also reflect preferential regimes and loopholes in national tax bases.

The existence of profit shifting practises is demonstrated in many academic and

empirical studies. Although the impact on total tax revenues is hard to measure, it might

be considerable.

Estimates for the United States find revenue losses of up to 25 per cent of

CIT revenue, while research by the IMF (2014) comprising 51 countries concludes that "the

(unweighted) average revenue loss is about 5 % of current CIT revenue – but almost 13 per

cent in non-OECD countries".

These observations have led to a more general debate on fairness, equity and efficiency

in taxation in the light of fiscal adjustment needs.

Base erosion has become even more

relevant in the context of rising concerns on fiscal sustainability following the financial crisis:

public debt levels have increased substantially in the EU from around 58% of GDP (EA 65%)

in 2007 to a forecasted value of 88% of GDP (EA 94%) in 2015. As a result of the crisis,

many governments cut expenditures while increasing taxes, notably on consumption, to

consolidate public budgets

. The use of several tax planning strategies by multinational

corporations has created a debate about their fair contribution to government budgets.

At the global level, the challenges related to the taxation of multinational companies

have increased the political pressure to strengthen the international rules of co-

operation in corporate tax matters.

Following the crisis and the increased revenue needs,

the OECD proposed an action plan against base erosion and profit shifting to reinforce the

current international tax rules and stabilize national tax bases. The OECD project focuses on

the interaction of different (national) tax rules and tries to detect and close loopholes in the

For a review of existing indicators and the associated challenges, see OECD (2015).

See IMF (2014) for further details. Zucman (2014) estimates the loss for the US at 20% of total CIT

revenue while the IMF (2014) quotes 25% as a maximum for the US.

According to Eurobarometer (2012) 88% of Europeans (EU-27) supported tighter rules on tax

avoidance and tax havens

http://ec.europa.eu/public_opinion/archives/eb/eb78/eb78_cri_en.pdf.

For example, the average standard VAT rate has increased by 2 percentage points over the period 2007-

2014 in the EU. For a detailed description of tax reforms in Member States , see the Taxation Trends in

the European Union 2014 and the Report Tax Reforms in EU Member States 2014.

The OECD base erosion and profit shifting project (BEPS) was endorsed by the G20. See the G20

leader's declaration after their meeting in Los Cabos on 18-19 June 2012, p. 8, paragraph 48:

https://g20.org/wp-content/uploads/2014/12/G20_Leaders_Declaration_Final_Los_Cabos.pdf.

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current setup.

The EU fully supports the on-going OECD work in this area and many of the

issues addressed by the OECD are of relevance also within the EU and are important for the

international competiveness of the EU enterprises as well.

Also, the EU plays an important

role in addressing these questions as it is one of the largest economic players in the world.

At the same time, the problems faced by the EU go beyond the issue of closing loopholes

in the existing international setup.

Tax avoidance and aggressive tax planning by

multinational companies distort price signals in the single market and thereby the allocation of

resources. Companies which use tax avoidance are more profitable and face lower capital

costs compared to domestic companies. This issue has to be addressed at the EU level to

ensure a level playing field for different types of companies.

While introducing unilateral anti-abuse measures by Member States might be a

valuable short term solution to fix the most pressing issues, the EU has to make sure that

an increase in national anti-abuse measures does not hamper the overarching goals of

the single market, the creation of a capital markets union and the overall attractiveness

of Europe at the global level.

Therefore, the issue has to be discussed from a wider

perspective in the EU. With its single market and a common currency in the Euro area, the EU

offers unique advantages to citizens and business. The economic integration within the EU

has increased welfare of citizens by lowering prices, increasing choices and removing

borders. Also, it has helped businesses to access larger markets, tap new sources of finance

and allocate their activities according to economic determinants rather than being limited by

national borders. This has led to an increased mobility of goods and services and production

factors within the EU which is most notably the case for capital. This mobility has improved

the allocation of resources. While the integration of markets has made progress, the taxation

of income from activities across the EU remains largely a national task. This can lead to

frictions in the single market due to tax obstacles. In addition, unilateral action to safeguard

national tax bases as currently discussed at the international level could in some cases

increase the number of obstacles if not properly coordinated.

The international debate has also renewed the interest in tax competition issues.

Some

people claim tax competition could be beneficial by creating more efficient corporate income

tax regimes and incentivize governments to offer attractive tax and public good bundles. Also,

some argue that limiting the power of governments to tax and thereby limiting excessive tax

burdens and excessive public spending is beneficial.

Critics argue that it is unclear why

competition for a mobile base in corporate income taxation should be justified by the idea of

'disciplining' overall government spending. They argue that democratic institutions like courts

of auditors and national parliaments are better placed to control governments' expenditures

than competition in one specific tax. Others state that the idea of benefit taxation seems at

odds with the reality that multinational companies are able to decrease their tax payments

irrespective of what tax and public good bundles being offered. This document does not

conclude which level of tax competition is desirable since this is largely a political

consideration. It notes however at a purely factual level that the recent developments have

changed perceptions of the costs tax competition might create for the common good at the

This debate is by no means new. These issues are discussed at the international level since more than a

century. An overview of the early development of the international system in the 1920s can be found in

Jogarajan (2013).

Annex 4 lists the EU initiative and their relation to the different actions in the OECD's base erosion and

profit shifting work.

See box 1 for an overview of the arguments and the literature on this idea.

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national as well as at the EU level. These considerations include the more indirect effect the

tax avoidance of a few companies could have on the tax morale of all taxpayers.

While the EU has been active to find solutions to the issues of profit shifting, more

remains to be done.

Proposals for reforming corporate taxation have been discussed in

Europe since at least 1962 with the call from the Neumark Committee to gradually harmonize

tax systems in Europe. In the EU, the debate around corporate taxation began to emerge as

economic and political integration led to more cross-border activity. The primary focus was

on preventing problems which could hamper the development of the single market, such as

double taxation and tax discrimination. The Commission has highlighted the issues and

challenges of corporate tax systems in an economic union as well as their role for

competitiveness vis-à-vis third countries for many years starting with the 1962 Neumark

report followed by the 1970 van den Tempel report and the 1992 Ruding report.

In 1998 the

Code of Conduct for business taxation was established to limit harmful tax competition and

identify specific tax regimes considered harmful. In this context, also rules on the application

of the State Aid rules to measures relating to direct business taxation were published by the

Commission in 1998. In 2001, the Commission presented a Communication identifying

concrete steps to eliminate tax obstacles to cross-border trade in the EU. This was followed by

10 years of technical preparation, culminating in the Commission's 2011 proposal for a

Common Consolidated Corporate Tax Base (CCCTB). More recently, the fight against tax

fraud and tax evasion moved to the centre of European efforts, being at the focus of the 2012

Action Plan against fraud which among others led to an amendment of the Parent Subsidiary

Directive to allow Member States the use of unilateral measures against profit participating

loans as well as to the establishment of the Platform for Tax Good Governance.

The

transparency package proposed in March 2015 contains a number of proposals to improve

transparency and information flows between tax administrations, notably on tax rulings. Some

of the policy options put forward to deal with profit shifting could also potentially address the

debt bias in corporate taxation stemming from the asymmetric treatment of debt and equity.

This issue has indeed become particularly relevant following the financial crisis because it

may lead to an excessive leverage and it may prevent the creation of a single integrated

European capital market.

While corporate income taxation and capital taxation more generally have become de

facto international taxes due to the mobility of the tax base, tax policy and

administration remain primarily a national responsibility.

All decisions on taxation in the

Evidence from behavioural economics shows that fairness (e.g. that the tax administration or the

government treat tax payers in a consistent and transparent way) is an important determinant of tax

morale. If anecdotal evidence in the public opinion suggests that some taxpayers receive a different

treatment or can easily avoid taxes, this might deteriorate the willingness to contribute to public

revenues via taxes in general. Alm and Torgler (2006) analyse in an empirical study a number of tax

morale determinants.

It is beyond the scope of this document to give a full overview of all contributions to the debate about

tax harmonization at the EU level. The main papers after the Neumark report are the Van den Tempel

Committee (1970) which called for a classical tax system for all Member States. The Werner Report

(1970) proposed tax harmonisation in the context of a monetary union. The 1971 and 1972 Council

resolutions called for fiscal harmonisation and in 1975 a proposal from the European Commission

suggested to harmonise corporate tax rates in a band between 45% and 55%. The Nyborg report (1979)

asked to harmonise tax bases prior to rates. Finally, the Ruding report proposed in 1992 some minimum

standards in corporate tax bases and a band for tax rates between 30% and 40%.

On the application of Recommendations C(2012)8805 and C(2012)8806, please see Annexes 2 and 3

which provide information on the work of the Platform on Tax Good Governance.

See de Moiij (2011) and European Commission (2015).

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EU are taken unanimously in the Council. This has in practice limited the degree of co-

ordination and harmonization in this policy field in the EU as a whole as well as in the Euro

area. With the growing number of Member States, the unanimity rule in the tax area has

effectively reduced the chances of progress in legislation to safeguard national tax bases while

ensuring a smooth functioning of the single market.

This staff working document gives an overview of the reasons underlying tax

competition and its economic consequences in the EU while pointing at options to

mitigate the extent of tax avoidance activities.

At the root of the problem are the current

international rules for the distribution of taxable profits, the increase of capital mobility over

the last two decades and the lack of information and transparency on tax policies and

enforcement at the international level. The interplay of these factors creates incentives for

governments to compete for highly mobile tax bases, notably accounting profits as well as

income related to intangible assets, either by creating specific regimes with lower tax rates for

some types of income or via a decrease of the headline statutory tax rates. At the same time,

multinational companies use these structures as well as unintended mismatches between

countries tax systems to decrease their overall tax payments. The discussion of these issues in

this document is organised as follows: After this introduction, section 2 presents the results of

the stakeholder consultation held in April. Section 3 discusses the empirical evidence and the

theoretical arguments concerning the development of corporate income taxes in the EU in the

context of international tax competition. Section 4 presents possible options to deal with tax

avoidance activities.

In the light of the evidence for tax competition and profit shifting presented, the analysis

concludes that three areas of action could be envisaged to tackle the current problems in

the taxation of (large) multinational enterprises:

1. The first is an

integrated EU approach to the taxation of corporate income by

implementing a common consolidated corporate tax base (CCCTB)

at EU level

which would not only replace the current mechanism of taxing corporate profits with a

system based on attributing income where the real economic activity takes place as

measured by different factors (e.g. the number of employees, the sales and the capital

stock), but also eliminate the costly transfer pricing procedures since the tax base

would be consolidated at EU level.

2. The second are

measures focusing on the short term goal of stabilizing tax bases

aimed at closing existing loopholes and improve transfer pricing procedures. These

measures would also comprise ways to ensure a minimum level of taxation for specific

types of income as well as additional transparency measures such as an EU list of tax

havens.

3. The third area covers a broader topic and aims at

reforming the EU governance

structures in tax matters

to address taxation in a more transparent and effective way.

ONSULTATION OF

NTERESTED

ARTIES

A stakeholder meeting was held on 13 April 2015 to discuss possible actions for inclusion

in the Action Plan. All stakeholders agreed that EU action on corporate taxation was

necessary and welcomed the Commission initiative.

Large business representatives and

professional services bodies stated that they strongly supported the existing CCCTB proposal,

and emphasised that it was important for them to retain optionality and consolidation. NGOs

and Small and Medium Enterprise (SME) business groups stated that although they would

largely prefer to retain consolidation, they were happy for this element to be postponed in the

kom (2015) 0302 - Ingen titel

interests of moving the proposal along. Both SMEs and NGOs were firm that the CCCTB be

made mandatory to prevent profit shifting. The discussion otherwise centred on Country by

Country Reporting (CbCR), with NGOs and SME groups arguing for swift progress on

adopting public CbCR, while larger businesses and professional services groups supported the

need for a full Impact Assessment to be conducted. NGOs also asked for the commission to

assess the impact on developing countries of tax avoidance by MNEs based in the EU,

including undertaking a "spill-over analysis".

Those Member States which spoke at the event supported making the CCCTB

mandatory and supported postponing consolidation.

The majority were in favour of

focussing discussions in the short term on international aspects on the CCCTB. Several

Member States voiced their support for agreeing a minimum effective tax rate, in particular in

the context of EU directives. Others reflected that tax rates were an important tool for some

countries, and their needs to be taken into account. On CbCR, the Member States which

spoke supported the need for an Impact Assessment on the costs and benefits of the various

options. Member States stressed that the Action Plan should also reflect the need to build on

the advantages of the Internal Market and provide incentives for businesses to grow. In

particular, many Member States were interested in improving the Arbitration Convention.

3.1.

OMPETITION IN THE

UROPEAN

NION

The Root of the Problem: Where are Profits taxed?

Tax competition

–

broadly defined as the uncooperative setting of taxes where a country

is constrained by the tax setting behaviour of other countries

–

is mainly discussed in

corporate income taxation.

The reason is that governments consider that they are

competing with this tax for internationally mobile resources often connected to multinational

companies and these are usually taxed as corporations. The two mobile resources are (1) real

investments (foreign direct investment) and (2) book profits (taxable profits attributed to a

country according to the current system of separate accounting and arm's length pricing).

3.1.1.

The Basic Mechanism

In an ideal world, the profits derived from the investment of a multinational company in

a specific country could be clearly observable and attributable to real activity in that

country.

In reality, the distribution of taxable profits poses considerable problems. When the

economic activity of a company or a group is taking place in two countries the question arises

how to divide the taxable profits from the activity between two jurisdictions while at the same

time assuring that there is no double taxation (or double non-taxation).

See Devereux and Loretz (2013).

There are other examples of tax competition for example in the area of the income taxation of very high

incomes (e.g. sports stars as analysed in Kleven et al. (2013)) or in cross-border shopping (for example

differences in consumption taxes as analysed in Nielsen (2001)). However, it is usually considered to be

limited to relatively small groups of employees or consumers compared to the extent of tax avoidance

observed in corporate taxation.

The separation between real investment and book profits also seems to serve as rough benchmark in

what is considered to be harmful tax competition. Generally, preferential regimes are in their nature

more related to attraction of book profits. In practice it is however difficult to draw an exact line

between these types of competition.

For a discussion of the current issues with the international tax rules see Devereux and Vella (2014).

The basic problems are by no means new. Seligman (1895) describes this problem by saying that „We

live in an age of industrial complexity and differentiation. In former times property rights were simple,

and the little capital that existed was largely owned by the producer. To-day not only does the same

kom (2015) 0302 - Ingen titel

The system of international coordination of taxation assigns taxable profits based on the

idea that economic activity should serve as the measure for distribution.

To determine the

economic activity in a tax jurisdiction the subsidiary of a multinational firm is for tax

purposes treated as a single company. This company uses separate accounting with arm's-

length pricing for intra-firm transactions. A system of bilateral tax agreements is in place to

avoid double taxation. The current system builds on the work of the League of Nations in the

1920s and that of the OECD after the Second World War.

The bases for the current distribution of taxable profits are the source and the residence

concepts.

The basic idea is that the country of source – the country where an international

company (a subsidiary of a multinational) produces and exchanges goods and services with

national companies and households – has the right to tax the profits from these activities. The

country of residence – where the owner of the company resides (either individual shareholders

or another company) – has in contrast the right to tax the world income of its resident namely

income in the form of dividends or interest.

3.1.2.

The Challenges due to Globalization

The distribution mechanism has come under pressure due to the changes in the

economic and business environment over the last decades.

For source countries, notably

when they are highly integrated internationally as is the case for EU Member States, the

activities of hosted companies are not limited to national borders. Inputs are imported from

other countries and not limited to national suppliers. Products and services produced are

exported and not only serve the market where a company is a tax resident. The same holds

true for the payments to owners which are spread over different countries. These payments

can either be transformed into interest or dividends or be diverted across countries to

minimize tax burdens. On top of this, source and residence based taxation also overlap and the

same company can have both source and residence characteristics in one country. Graph 1

illustrates the increased importance of cross border activities using data on foreign direct

investment stocks between the EU, the Euro Area and the rest of the world between 1995 and

2013. The steep increase in stocks since 1995 and during the first decade of the 2000s

underlines the increased importance of multinational company activities.

The growing importance of intangible assets and the digital economy has further

increased the pressure on national tax systems.

The growing share of intangibles assets

(patents, brands, firm-specific knowledge and technologies) in the value creation of

multinational companies has increased tax competition. While the (re)location of these assets

is easier than for tangible (e.g. machinery, factories) assets, estimating their true economic

values and the real values of payments for their use is very complicated and sometimes even

impossible given the lack of comparable third party transactions. Despite the fact that the

digital economy or more precisely the overall development of the internet and communication

technologies plays an important role in this, the view of most experts is that the problem is not

capitalist invest in different enterprises, not only is the producer often dependent for a part of his

capital on sums that belong to others, but the old geographical unity has been dissolved, and there is no

necessary connection between the residence of the capitalist and the place where his capital is

employed. A system of taxation, therefore, which may have been perfectly just under the older and

simpler conditions, may now be entirely inadequate because of the failure of government to take

account of these new complications in property rights.“

Jogarajan (2013) notes based on this quote that

the basic issues remain essentially the same in today's global discussions about the taxation of

multinational companies.

For a more detailed discussion on the limits of the current system see Schön (2009). For a description of

the current system see the OECD Model Tax Convention.

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limited to one sector but is of a more general nature. Solving the overall problems will

therefore also address the concerns regarding the digital sector.

Graph 1: FDI stocks relative to the rest of the world, EU-28 and Euro area, 1995–2013

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

EU28 (Outbound)

EU28 (Inbound)

Euro area (Outbound)

Euro Area (Inbound)

Source: UNCTAD (2014)

3.1.3.

The Tax Policy Reaction

As a consequence, Member States struggle to tax profits, which derive from economic

activity carried out by international companies on their territory.

To put it differently, the

international taxation rules struggle with distributing taxable profits based on the notion of

economic activity since it has become more and more difficult to trace the value creation

process with a territorial approach. Countries compete with each other by creating regimes

that attract mobile tax bases. The basic problem is that jurisdictions that compete for capital

via their tax system do not take into account the fiscal externalities their actions create in

other countries. Although the results of the literature are not conclusive, this lack of

coordination might ultimately lead to welfare losses. Box 1 provides a brief review of the

theoretical arguments.

The developments have led to a typical tax reform described as

tax-rate-cut-cum-base-

broadening

where governments have decreased corporate tax rates while broadening the

base to mitigate revenue losses.

Since profit shifting is largely driven by tax rate

differentials (see Box 2 for a more detailed explanation), this policy is from a national

perspective a reasonable policy response to the lack of coordination at the international

level.

Graph 5 shows the strong decrease of statutory rates since 1995 in the EU and third

For a detailed account of the role of taxation and the digital economy for tax competition see the report

of the Commission Expert Group on Taxation of the Digital Economy (2014). The report states that

"there should not be a special tax regime for digital companies. Rather the general rules should be

applied or adapted so that “digital” companies are treated in the same way as others."

http://ec.europa.eu/taxation_customs/resources/documents/taxation/gen_info/good_governance_matters

/digital/report_digital_economy.pdf.

Nevertheless, base broadening has been less common than rate reduction. See the Annex to this SWD.

The basic theoretical model for the observation that profits shifting is driven by tax rate differentials can

be found in Haufler and Schjelderup (2000). Empirical evidence for this profit shifting via transfer

prices is reported in section 3.2.3.

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countries and evidence for base broadening policies is presented in Annex 1. It should be

noted that base broadening as such is not harmful. Quite to the contrary, in some areas tax

policies promoting broad bases and lower rates are in fact recommended since they tend to

minimize the distortionary effects of taxation.

For example, the Commission argues in favour of such policies in the annual growth survey with a

focus on reducing exemptions and loopholes. A case in point are exemptions in value-added taxation

and tax expenditures in personal income taxes and corporate taxes.

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Box 1: Tax competition and welfare

This Box gives an overview why the differential treatment of some forms of companies and capital might be a concern

from a welfare point of view and why it could be even beneficial in some cases.

Tax competition can lead to an undersupply of public goods.

In general, if countries engage in tax competition to

attract perfectly mobile capital, a source-based tax on capital may trigger a capital outflow and the burden of the tax

would be then entirely shifted onto the local production factors. Ultimately, this would lead to an under-provision of

public goods. In this case, tax harmonization would be always beneficial. A coordinated increase of the taxation of

capital would indeed determine an increase of public spending towards the efficient levels leading to an

unambiguously positive effect on welfare.

Tax competition may also tilt the choice of the tax mix with a higher burden borne by the immobile production

factor.

This theoretical prediction that capital mobility leads to a situation where the economic incidence of taxes on

mobile production factors will ultimately fall on the immobile factor is supported by the empirical evidence presented

below. An interesting question in this context is whether the new international rules for information exchange will

have an impact on the mobility of the capital tax base.

Tax competition may distort the allocation of capital between countries of different size.

Where countries differ in

size as measured by the number of inhabitants - not because these individuals differ in income or preferences – large

countries tend to have higher rates than smaller countries. The reason is that large countries can affect the after-tax

return to capital while small countries cannot. The result will be an inefficient allocation of capital between large and

small countries. This reinforces the case for coordination or harmonization, but it also makes coordination more

difficult from a political point of view because small countries benefit relatively more from tax competition in terms of

capital inflows and higher service and public spending than large countries.

Another welfare cost of tax competition is related to its effects on public redistributive policies.

These policies could

be characterized as insurance against specific risks such as unemployment or illness. If tax competition undermines the

ability of governments to provide such insurance this will have social costs.

The strong predictions of the standard models of tax competition have been refined by numerous other

contributions in the literature.

Overall, the effects of tax competition on the provision of public goods and the size of

public sector, the tax system, and ultimately on welfare are complex and depend on many elements.

Relaxing the assumption of a fixed capital stock introduces into the picture the links between a certain economic

area and the Rest of the World.

In the standard models of tax competition, the capital stock is assumed to be fixed. In

reality, the supply of capital is elastic. Therefore, a reduction of capital taxation will not only attract capital from other

jurisdictions in an economic area, but also from the Rest of the World. This implies that the aggregate efficiency costs

of tax competition will be in general reduced with respect to the standard models. These considerations are directly

relevant for the European Union. The most obvious implication is that in tackling the "internal" tax competition

process, it is important to keep in mind the "external" dimension as well, in order to avoid hampering the

attractiveness of the EU for investment from the rest of the world.

Important refinements of the standard models consider the case of imperfect competition and the possibility of

economic rents, both firm- and location-specific.

In general, standard results discussed above still hold if these rents

are firm-specific. Indeed, in this case there will be the incentive for the governments to engage in tax competition to

attract the firms generating these rents. This is not the case anymore for location-specific rents. Following this line of

reasoning, smaller countries could be more active in tax competition if they have a little potential for location-specific

rents.

In the new geography models, location specific rents derive from agglomeration economies.

These models provide a

very different view of tax competition. The reduction of production costs due to agglomeration leads to spatial

concentration of production facilities in "core countries" whose residents demand high levels of public services. This

allows higher tax rates on capital income because agglomeration economies generate rents that can be taxed.

Therefore, in these models tax harmonization is in general not desirable. For instance, core countries would have to

reduce public services to inefficiently low levels.

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Box 1: Tax competition and welfare (continued)

Profit shifting may have different effects on tax competition for investment.

Profit shifting may strengthen tax

competition, since countries will be concerned about the revenue losses that may derive from it. But it may also reduce

tax competition by decreasing the sensitivity of FDI to corporate taxation (see Sec. 3.2.2). Policymakers may therefore

face a trade-off in dealing with tax avoidance and profit shifting. On the one hand, they may want to secure tax

revenues as much as possible by setting in place anti-avoidance tools. On the other hand, they may want to keep or

increase the attraction of the country for multinationals. One obvious way to deal with this trade-off could be

differentiating the taxation of multinationals and domestic firms, recognizing the former are more mobile that the

latter. This could be achieved not only directly, but also indirectly if tax planning devices are available

de facto

only to

multinationals via for instance issuing specific regulations, rulings, or lax enforcement.

In some cases tax competition could even have welfare-improving effects.

The most important early contribution is

Brennan and Buchanan (1980). Their basic idea is that without tax competition the size of the public sector would be

excessive. Tax competition would be then beneficial because it would limit the tendency of governments to the

overexpansion. The incentive to an overprovision of public goods could derive specifically from the fact that capital is

not perfectly mobile for the simple reason that once it is installed it is costly to be moved. Therefore, government may

try to tax it. Tax competition may limit this incentive.

The competition for mobile capital has also created strong incentives to create

preferential regimes where governments tax specific mobile bases at a lower rate than

domestic bases.

The reason is that in order to limit revenue losses it is attractive to tax mobile

bases lighter than immobile (domestic) ones. In economic terms, a government sets the tax

rate in response to the elasticity of the tax base.

The easier the tax base moves out of the

country, the lower the tax rate in the preferential regime will be. The existence of preferential

regimes was limited by international policies aiming at reducing this type of regimes

generally considered as being harmful forms of tax competition.

One should note though

that removing these regimes increases the pressure to compete for tax bases with the statutory

rate. The reasons is that the government loses one policy tool when these regimes are

abolished and will need to readjust its overall system leading to an overall lower taxation of

corporate profits irrelevant whether they are mobile or not.

The basic theoretical argument for this observation was made in a very clear way by Keen (2001). He

concludes,

"preferential regimes may serve a useful strategic purpose in enabling countries to confine

their most aggressive tax competition to particular parts of the tax system."

The prominent example at the EU-level is the Code of Conduct for business taxation.

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Box 2: Profit shifting

Multinational companies can exploit differences in tax rates by shifting profits from a high tax to a low tax country. The

gain from shifting profit is the tax rate differential. If the tax rate in country A is 30% and the tax rate in country B is 5%,

the gain for each Euro taxable profit shifted is 25 cents. There are different ways of shifting profits. The most common

are transfer price manipulation, intra-firm debt shifting and intellectual property location.

Transfer price manipulation occurs by manipulating the price of cross-border deliveries, services and other transactions

between related companies. The transfer price is a cost to the company receiving the delivery or service and reduces

the profit of that company. On the other hand, it is an income to the providing company and it increases the profits of

that company. Therefore a high transfer price leads to low profits in the receiving company and high profits in the

providing company. If profits are taxed at a lower rate in the country of the receiving company, a low transfer price can

reduce the total amount of payable tax without changing total pre-tax profits. Although transactions between related

companies should be priced as if they were concerning a third party (arm's length principle), there is some flexibility in

the methods and imprecision in the data used for determining transfer prices. Also there is some room for related

companies to structure their transactions. This flexibility can be used by multinational companies to reduce the amount

of payable tax. The mechanism is illustrated in the following table:

Base

Parent

(country B)

Turnover

Costs

Profit (before tax)

Tax rate

Payable tax

100

1.5

Subsidiary

(country A)

30%

7.5

Total

Parent

(country B)

100

Alternative A

Subsidiary

(country A)

30%

Total

170

120

160

110

In the base scenario, a parent company in country B sells finished products for 100 units. It buys intermediary products

from a subsidiary in country A for 70 units. This is the arm's length price, consisting of a cost of 50 and a profit mark-up

of 20. The parent has no other costs. Now, the total pre-tax profit of the multinational is the sum of the profits of the

parent, 30 and those of the subsidiary, 20. In total, the pre-tax profits are 50. 30 is taxed at 5% and 20 is taxed at 30%,

leading to a total payable tax of 7.5. If there are no easy comparable goods to determine the arm's length price of the

intermediary product, the company could change the conditions of delivery or argue for a lower mark-up reduce the

price of the intermediate product to 60 (Alternative A). While total pre-tax profits remain unchanged, the profits of the

parent are increased to 40 and the profits of the subsidiary are reduced to 10. A profit of 10 has been shifted from the

subsidiary to the parent and, as a consequence, from high-tax country A to low-tax country B. As a result, the total

payable tax is reduced by 2.5 to 5.

Another mechanism for cross-border profit shifting is debt shifting. Multinational companies have large freedom in

establishing intragroup financial relations. By using internal loans instead of internal equity, they can convert income

streams from dividends to interest. As dividends are usually taxed in the source country and interests in the residence

country this leads to a shift of profits. This is illustrated in the table overleaf.

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Box 2: Profit shifting (continued)

Assume the same base scenario as in the table above. The parent company fully owns the subsidiary company. The

subsidiary is fully financed by equity provided by the parent company. Net profits from the subsidiary are repatriated

to the parent. According to the DTC between country A and country B dividends from country A are exempt from

additional taxation in country B (participation exemption).

Base

Parent

(country B)

Earnings (before

interest and taxes)

Interest

Taxable Profit

Tax rate

Payable tax

Net profit

Repatriated

dividend

Net profit after

repatriation

Subsidiary

(country A)

Total

Parent

(country B)

Alternative B

Subsidiary

(country A)

Total

1.5

28.5

30%

-14

-15

30%

1.5

3.5

-3.5

7.5

42.5

2.25

42.75

3.5

3.75

46.25

42.5

46.25

In this case the payable taxes are identical to the ones in the previous example: 1.5 in country A and 6 in country B.

Now consider an alternative situation (Alternative B) in which the subsidiary still is fully financed by the parent

company, but part of this financing has taken the form of a loan. Assume that the value of the loan is 150 and the

yearly interest to be paid 15. Note that this internal loan does not have to have consequences for the external

financing of the multinational company. Now, the transfer of income from the subsidiary to the parent takes two

forms: interest and dividends. The interest paid from the subsidiary is deductible in country A and taxed in country B.

The dividend is taxed in country A and exempt in country B. So, by increasing the debt of the subsidiary, the

multinational has shifted 15 units of profits from country A to country B. This leads to a reduction of payable tax from

7.5 to 3.75.

The mechanism of profit shifting through the use of royalties is very similar. If the subsidiary company is using

intangible assets of which the property rights are in the hand of the parent, a stream of royalties from the subsidiary to

the parent will emerge. This stream will reduce profits in the source country (country A) and increase them in the

residence country. An arm's length price of these royalties is almost impossible to assess.

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3.2.

3.2.1.

Empirical Evidence

Development of Corporate Income taxation

The dynamics of the statutory and effective tax rates provide insights about the tax

competition process.

The decision of a multinational company to engage in profit shifting

depends on the difference between the statutory tax rates between countries.

This difference

is the gain that can be obtained by shifting profits from a high to a low tax jurisdiction. By

contrast, other tax rate measures such as the effective average tax rate (EATR) impact the

decision where to locate an investment, while the size of an existing investment depends on

the effective marginal tax rate (EMTR) in a country. In line with the

tax-rate cut-cum-base-

broadening policy

described above, Devereux and Sørensen (2006) find a clear downward

trend in the statutory tax rates for the EU-15 and G-7 countries. They also find a decline of the

EATR since the 1980s and a certain stability of the EMTR for the period 1982-2001, followed

by a reduction in the 2000s. These developments are consistent with two explanations for tax

competition which are not mutually exclusive. First, the decrease of the statutory rate is due to

the existence of tax competition for mobile book profits and countries reduce rates to be less

exposed to profits shifting. Second, the decrease in the EATR is a result of tax competition for

mobile firms (investments) since the decision on where to locate is based on the average tax

payment on all profits generated by the project. Graph 2 shows the development of the

statutory tax rate for more recent years and confirms this downward trend until the beginning

of the crisis when statutory tax rates levelled off. Table 1 gives the values for other tax rate

measures which show again the same pattern as identified by Devereux and Sørensen (2006).

Graph 2: Statutory CIT rates, 1995-2014

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

EU-28

EA-18

OECD-7

BRIC

Source: Taxation Trends in the European Union (2014)

There exists a large empirical literature focusing on tax competition. According to the survey by

Devereux and Loretz (2012), the studies can be classified in three groups. Some papers look at the

dynamic of tax rates and tax revenues; other papers analyse the tax rates and tax revenues of a country

based only on factors from that country; finally, some studies try to assess the extent to which the

choices of tax rates in a country depend on the choices in other countries.

It should be noted that while the difference in statutory tax rates are one piece of evidence for tax

competition, differences in the effective rates are equally important. Effective rates capture not only the

existence of varying tax rates but also – and in some cases even more importantly – the existence of

loopholes and preferential regimes.

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Graph 3: Statutory CIT rates, maximum EU-28, unweighted averages EU-28, EA-18, EU-15

and NMS, minimum EU-28, 1995-2014

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

max

EU-15

EA-18

EU-28

NMS

min

Source: Taxation Trends in the European Union (2014)

The development of the average statutory rates in the EU masks the fact that there are

considerable differences between Member States.

Graph 3 shows the average rate in the

EU as well as the lowest and the highest statutory rates. It shows that the discrepancies in

terms of rates are substantial. In 2014, the highest rate is 38 % in France and the lowest rate is

10 % in Bulgaria. The graph also shows that while there was some convergence in rates at the

beginning of the millennium, this process seems to have come to an end and rates are even

diverging. It should be noted that low statutory rates are not an issue as such. To the contrary,

lower rates can also be considered as being investment and growth friendly. The point of the

analysis here is to show that a lowering of rates has occurred in many countries. In this

document there is no evaluation or consideration on what statutory tax rate level is optimal.

Table 1: Change of average CIT rate, effective average tax rate, effective marginal tax rate,

1998 – 2014 in percentage points

1998-2000

CIT rate

EATR

EMTR

-2.0

-1.7

-1.9

2000-2005

-6.1

-4.3

-1.4

2005-2010

-2.1

-2.0

-2.5

2010-2014

-0.3

0.1

0.8

Total 1998-2014

-10.4

-8.0

-4.9

Source: ZEW(2014) and Commission services

The relative stability of statutory and effective tax rates in Europe over the last five

years does not necessarily imply reduced tax competition.

Recent data in table 1 show a

slower decrease of tax rate indicators and a certain stability of the average statutory tax rates

and forward-looking effective tax rates at the EU-level after the crisis.

Although the

stabilization of rates might be interpreted as less intense tax competition, this development

can also be explained by other factors. Indeed, the decrease of the CIT statutory tax rates has

some limits for several reasons related to the (domestic) functions of CIT as described in box

To keep the table consistent, in this table CIT rate data from ZEW are being used. These differ slightly

from those published in Taxation Trends in EU-Member States.

See also Annex 1 to this Staff Working Document.

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3. First, if the corporate tax is considered as a backstop for personal income tax and a

withholding tax for capital income, by decreasing the CIT rate the tax avoidance incentives to

re-characterize personal income as corporate income are strengthened with possible negative

consequences on total tax revenues. Graph 4 illustrates the correlation between the two rates.

Second, the CIT covers not only mobile firms and their profits, but also immobile (domestic)

firms and profits. For this reason there is an incentive for governments to create preferential

regimes with lower rates for mobile profits while applying the higher headline rate to

domestic profits. However, this policy can only be applied within the limits of the Code of

Conduct and the State Aid rules. As a consequence, tax competition via the headline rate may

increase, if preferential regimes are not allowed. Finally, there could be political constraints

for the reduction of the tax rate on corporations, especially given the strong political argument

that corporations ought to pay their fair share of tax.

Graph 4: Correlation between top CIT and PIT rates in 2014

CIT rate

PIT rate

AT NL DK

HR FI

Source: Taxation Trends in the European Union (2014)

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Box 3: Why corporate income is taxed.

Why do governments generally tax corporations if the corporate income tax creates numerous problems?

Corporate taxes have to be paid by real people meaning either by shareholders via lower returns, by employees and

managers via lower wages or by consumers via higher prices. Who in fact bears the burden (the economic incidence) of

the tax is the subject of extensive research, and evidence suggests that - in line with tax competition theory predictions -

immobile factors such as labour carry the economic burden at least partly. The question then arises why not to tax

directly the different stakeholders in a company instead of levying a distorting tax on a legal entity?

There are a number of political and economic explanations for the use of corporate income taxes as a revenue

raiser, notably its function as a backstop to the personal income tax.

The most important reason is related to a purely

domestic function of the corporate income tax, namely that it serves as a backstop to the personal income tax.

Governments have not only an incentive to keep the corporate income tax, but also to make sure that the difference

between the corporate tax rate and the personal income tax rate is not too large. The reason is that there is otherwise an

incentive to reclassify labour income as capital income to reduce the tax burden. Slemrod (2004) shows empirically that

the backstop function is an important driver of the corporate income tax rate. Graph 4 shows the correlation between

corporate and personal income tax rates for the EU member states for 2014 that is in line with the empirical findings in

the literature.

Another important reason for corporate taxation is based on an administrative argument where the corporate tax

serves as a withholding tax on capital income at source.

The taxation of capital income at source (i.e. at the level of

the company) is an effective way to ensure that shareholders pay capital taxes. It should be noted that this does imply

anything about the economic incidence of the tax. The idea is rather that in a tax system with a comprehensive tax base a

withholding tax at the corporate level might be easier to enforce than taxing the capital income at the shareholder level.

A related argument is the popular view that corporate income taxes should be part of a progressive tax system.

While the relation between the corporate income tax and the overall progressiveness of the tax system is not clear (from

an economic perspective progressivity should be implemented in the personal income tax which also comprises capital

income), this idea is popular and also politically appealing. Here again the issue of who bears the burden of the corporate

income tax is important. One could argue that the low taxation of some corporate profits can increase gains for specific

groups for example via higher capital gains and therefore higher assets. While clear evidence on this particular link is

missing, the fact that high wealth households hold the largest share of financial assets might raise distributional concerns.

The tax payments of corporations have the character of a benefits tax.

This argument states that companies benefit

from the provision of public goods by the governments such as public infrastructure, a legal system and the provision of

a specific legal form for companies as well as the availability of skilled labour. Since company use these resources, the

argument goes, they should also contribute to its financing. While the argument is very compelling, it is less clear why

companies should contribute based on profits since also a loss making company uses these public goods. Nevertheless,

the benefit tax is usually considered one reason for taxing corporates.

The corporate tax falls at least partly on economic rents.

Taxing pure profits (only) is economically efficient since a

pure profit tax collects revenues without taxing an investment at the margin. In reality, corporate income tax systems do

not meet this objective, unless the tax base is calculated based on cash flows. While most CIT systems also burden

marginal investment, they do at least partly also fall on pure economic rents.

Limits to a decrease of the headline statutory tax rates may reinforce the incentives for

countries to enact preferential tax regimes at the boundaries of what is and what is not

allowed under rules of the Code of Conduct and to attract profits and multinationals by

issuing specific regulations and by rulings, allowing

de facto

mobile firms the reduction

of the tax burden.

The

standard

forward-looking effective tax rates do not reflect

preferential tax regimes, specific regulations and rulings. This may explain the stability of the

average statutory tax rates and forward-looking effective tax rates. Graph 5 shows with the

example of patent boxes that the levelling off of tax rates since 2007 has been accompanied

by an increase of the regimes providing lower tax rates for profits from these sources.

A patent box is a company tax regime which offers a lower tax rate for income from various types of

intangible property (IP), such as royalties from patents. The reference to a 'box' comes from the idea of

royalties being separated from the rest of the corporate income of the company and given preferential

treatment.

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Graph 5: Number of Member States offering IP boxes and average reduction of rates

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

120%

100%

80%

60%

40%

20%

number of Member States

average reduction (right hand scale)

Source: Joint Research Centre - TAXUD

Empirical studies focusing on the determinants of corporate tax systems such as

globalization, capital mobility and strategic interaction between governments show

evidence of tax competition.

The main theoretical prediction here is that increasing

globalization and capital mobility should put a downward pressure on source-based taxes on

corporate income. In line with this prediction, there appears to be a statistical significant

negative relationship between forward looking effective tax rates and statutory tax rates and

measures of openness.

A more direct way to test for tax competition is to look directly at the

strategic interaction between tax variables set by different countries. Also these studies

generally confirm the existence of tax competition. For instance, Devereux et al. (2008) focus

on OECD countries over the period 1982 – 1999 and find evidence of strategic behaviour both

for statutory tax rates and effective marginal tax rates. Interesting empirical evidence does

exist for the strategic interactions between European countries highlighting the role of the

small countries located in the centre of Europe and of the new Member States.

At first sight, it is therefore surprising that the revenue contribution of CIT at the

aggregate level has not changed significantly in recent years. In 2012, on average 6.5%

of tax revenue was collected from corporations in the EU-27 (2.6% of GDP).

Graph 6

shows the development of this share for the EU-27 and illustrates that movements in revenues

are due to the pro-cyclicality of the tax. However, this stability should not be misinterpreted

as if tax competition had no revenue impacts. The negative impact on revenues has been

reduced by a number of other factors. First, the base broadening has partly offset the impact

of lower rates.

Second, incorporation has increased and this increased the overall base.

See for instance Bretschger and Hettich (2005), Schwarz (2007) and Loretz (2007).

See Redoano (2007), Chatelais and Peryat (2008), Crabbé and Vandenbussche (2008) and Cassette and

Paty (2008).

Base broadening may have been the result of both deliberate policies (e.g. reduced investment tax

credits and depreciation) and the increase of profitability in the corporate sector due for instance to

globalization (see Becker and Fuest, 2007) and to the rising share of the financial sector in the economy

kom (2015) 0302 - Ingen titel

Third, the share of capital in income has increased since the beginning of the 1980s.

Lastly,

relatively low interest rates in recent years had limited the interest deductibility from the

corporate tax base which also had a base broadening effect. These effects do not only explain

the stability of tax revenues, they indeed raise the question why the share of corporate taxes in

total revenue has not increased over time.

Graph 6: CIT revenues to GDP, GDP growth, EU-27, EU-18, 1995-2012

4,0

3,0

2,0

1,0

0,0

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

GDP Growth EU-28 (rhs)

GDP growth EA-18

Source: Taxation Trends in the European Union (2014)

-1

-6

Tax competition will have an impact on the allocation of capital and profits across

jurisdictions.

These effects will depend on the sensitivity of these variables to tax

differentials across countries. Empirical evidence provides insights about the magnitude of

these effects. This empirical evidence will be discussed in the following paragraphs. Section

3.2.2 will discuss the relation between the allocation of physical capital and corporate tax

rates. Section 3.2.3 will go into profit shifting and its responsiveness to these rates.

3.2.2.

Mobility of capital

It is commonly agreed that capital has become more mobile over time and notably with

the introduction of the Euro.

Capital flows have increased substantially over time. In the

EU, on average outbound foreign direct investment (FDI) as a percentage of GDP was equal

to 0.64% in the 1970s, 1% in the 1980s, 2.6% in the 1990s, 4.9% in the period 2000-2007; it

has decreased to 2.8% in the period 2008-2013 as a consequence of the crisis.

There are

moreover clear market signals pointing to a high degree of capital mobility; for instance the

equalization across markets of the interest rates on deposits with similar features is a clear

indication in this sense. As regards the effect of the monetary union, Petroulas (2007)

provides econometric evidence that the introduction of the Euro increased inward FDI within

(see Devereux et al., 2004; Auerbach, 2007). Restricting the deductibility of interest payments is one

example for base broadening.

See De Mooij and Nicodeme (2008) for empirical evidence of the effects of income shifting from the

personal to the corporate tax base.

The development of the capital share and the labour share in income is analysed in Karabarbounis and

Neiman (2013). They find that the global labour share of income has decreased while the capital share

has increased. Among other reasons, notably changes in technology and relative prices of investment

goods have induced firms to shift from labour to capital use.

Source: UNCTAD (2014).

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the Euro area by about 16%, from Euro Area members to other member states by 11% and

from non-Euro member states to Euro Area members by 8%.

The correlation between domestic savings and investment indicates increasing capital

mobility.

The "saving retention coefficient" – the part of domestic savings which is invested

domestically – seems to be decreasing over time, consistent with increased capital mobility.

For European countries these coefficients are much lower that the non-OECD countries and

have declined over time more rapidly.

Econometric evidence shows that FDI is sensitive to corporate taxation and that the

sensitivity may have increased over time.

This is in line with increased capital mobility. De

Mooij and Ederveen (2006) find that decreasing the host country's tax rate by one percentage

point would increase FDI by between 2 and 3.9% depending on the study characteristics. Feld

and Heckemeyer (2011) find lower effects, although still statistically significant.

Furthermore, also the location decision of multinational companies' investments is affected by

taxation.

Empirical evidence also suggests that a large share of the burden of corporate taxes is

shifted to immobile factors.

Again, this is in line with increased capital mobility. Indeed, the

theoretical literature provides clear predictions for the incidence of a source-based tax on

capital: the more mobile the capital is, the lower the tax burden on capital will be, since this

burden will be shifted onto other production factors.

Measuring the incidence of taxation is

however difficult and the results should be interpreted with caution. However, the existing

studies provide indication that capital is indeed very mobile. Arulampalam et al. (2008) find

for the period between 1993-2003 that in France, Italy, Spain and the UK about 60% of the

burden of the corporate income tax is borne by labour in the short-run and that labour bears all

the burden of the tax in the long-run. This means that for each additional Euro of corporate

tax, wages decrease by 60 cents. Fuest et al. (2013) find an incidence of 77% over the period

1998-2008 for Germany. Lower estimates for Germany are provided by Dwenger at al.

(2011). They find an incidence of between 19% and 29% relying on data for the period 1998

and 2006.

Note that the possibility of income shifting by multinationals tends to reduce the

mobility of real capital (FDI).

Tax avoidance could make FDI less sensitive to tax factors

since the burden of high tax rates could be avoided, affecting the mobility of "real" capital or

"real" profits as opposed to book profits.

Schiavo (2007) confirms these results in a different research setup.

See Feldstein and Bacchetta (1991), Obstfeld and Rogoff (2000) and Zodrow (2010).

Both studies are so called meta-studies. This means they summarize the results of numerous empirical

studies using statistical tools to derive a single estimate out of from all the estimates considered in the

meta approach.

See Barrios et al. (2012) for an analysis of the impact of withholding taxes on the investment location

decision. The authors also found that the complexity and multiplicity of bilateral country-tax rules

magnifies the tax savings international corporations can make through FDI decisions. A similar result

was found by van´t Riet and Lejour (2015).

This concern was also raised by Mario Monti in the report "A new Strategy for the single market"

which was prepared upon request of the European Commission. The report was published in 2010.

Monti stresses that the immobile factor labour is carrying some of the burden from competition.

See for instance Overesch (2009).

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3.2.3.

Profit Shifting

Profit shifting is by its very nature difficult to measure. Estimates are subject to large

uncertainty and should be interpreted with caution.

The presence of affiliates in low-tax

countries by multinationals and the relatively lower tax rates based on accounting figures for

these affiliates may at best signal the possible existence of an issue, but they cannot be used to

infer the extent of the problem. Several reasons other than taxation can induce a multinational

to have a presence in some low-tax countries. Effective tax rates based on accounting figures

have received considerable attention in the media over the last years with the emergence of

the financial crisis. Very low effective tax rates on foreign profits were reported for well-

known corporations, especially of the digital economy, and were often compared with the

effective tax rate on domestic income

. However, conceptually the comparison of the

effective tax rates on foreign profits should be made with the unobservable effective tax rate

on foreign profits in the absence of profit shifting, rather than with the actual effective tax rate

on domestic income. More generally, these effective tax rates vary for several reasons and

depend for instance on the investment policy of a company – with the related depreciation

provisions - and tax loss carry forward.

Other concerns can be raised for those tax avoidance

aggregate measures based on the computation of "tax gaps" that do not distinguish between

international and domestic tax avoidance and for those measures that compute "theoretical"

tax liabilities without recognizing all those tax provisions entailing a reduction of taxation

such as R&D incentives and again capital allowances.

More robust evidence of profit shifting has to be necessarily indirect and builds on

different empirical estimation strategies,

such as comparing pre-tax profits of low and high-

tax affiliates, tracing the effects of an increase of profits in high-tax countries' affiliates on the

profits of low-tax countries' affiliates, and comparing in a proper way the tax payments of

multinationals and domestic companies. In the following paragraphs the results of the

different empirical approaches are presented.

Indirect evidence of profit shifting can be obtained by comparing the pre-tax

profitability of high- and low-tax affiliates and studies suggest that an increase of the

host country CIT rate of ten percentage points would lower affiliates pre-tax profits in

that country by 8%.

Theory predicts that tax avoidance will typically entail a decrease of

(pre-tax) profitability in the high tax country and a corresponding increase in the low tax

country. In fact, econometric studies confirm the existence of such a negative correlation

between corporate income tax and reported pre-tax profits. Heckemeyer and Overesch (2013)

For a recent survey see Riedel (2014). This section mainly draws on her paper. For another review of

the literature see also Dharmapala (2014). See also OECD (2013a). In the context of the OECD BEPS

Action Plan (Action 11), work has been carried out on indicators of scale and economic impact of

BEPS (OECD, 2013b).

The final report of the Expert Group on Taxation of the Digital Economy reports effective tax rates

based on accounting figures for the largest corporations of the digital economy and for the major non-

digital companies by market capitalization. Overall, it emerges that these effective tax rates are lower

for non-US income and that this pattern is more pronounced for the digital companies. For instance, for

Google (Apple) the effective tax rates on foreign profits are equal to 3.2% (2.5%), 5.3% (1.9%) and

8.6% (3.7%) for 2011, 2012 and 2013 respectively; the effective tax rates on US income are instead

equal to 49.9% (75.3%), 40.8% (70.2%) and 26.4% (61%) for the same years (see Expert Group on

Taxation of the Digital Economy, 2014, Report: 54-55).

Yahoo is an example of the difficulties in the interpretation of the accounting figures as measures of

effective taxation. Given some non-ordinary transactions in 2012 and 2013, the pattern found for the

other digital economy companies (with the effective tax rates on foreign profits considerably lower than

the rate on domestic profits) is for Yahoo completely reversed (see Expert Group on Taxation of the

Digital Economy, 2014, Report, page 54).

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summarize the results of 238 estimates of the effects of corporate tax rates on reported profits

found in 25 empirical papers. They obtain a consensus figure for the tax semi-elasticity equal

to 0.8: An increase of the CIT rate of 10 percentage points (p.p.) lowers affiliates' pre-tax

profits by 8%.

These estimates of the sensitivity of profits to corporate tax rate differentials can in

principle be used to estimate the revenue losses due to profit shifting, but they have to be

interpreted with caution.

There could be reasons other than tax avoidance that generate a

(positive or negative) correlation between pre-tax profits and corporate income taxation. For

instance, a higher taxation in a country requires a higher pre-tax profitability in order to invest

in that country, and this generates a positive correlation between pre-tax profits and corporate

income taxation. As another example, a higher taxation in a country may determine a lower

effort provision by affiliates' managers in that country because less earned income could be

kept or "extracted" when taxation increases and this tends to generate a negative correlation

between pre-tax profits and corporate income taxation.

Econometric evidence on profit shifting can also be derived identifying unexpected

changes of profits in high-tax locations (shocks) and estimating how these are

transmitted to low-tax countries' affiliates.

This approach is used by Dharmapala and

Riedel (2013) who estimate that about 2% of the additional profits arising in a high-tax

country are transmitted to low-tax countries affiliates. The authors argue however that this is

likely to be only a lower bound of the profit shifting for issues related to their dataset and their

identification strategy.

Another estimation technique used to measure the size of profit shifting is to compare

the tax payments of multinational and similar domestic companies. Studies suggest that

this difference is about 30%.

Since these two categories of companies are different for

several reasons, the comparison of the tax payments is made only for those companies that are

identified through a statistical process of matching, and therefore that are "similar" from a

statistical point of view. In this way, the different tax payment can be attributed to the

different profit shifting possibilities related to the status of being a multinational or a domestic

company. Egger et al. (2010) use this estimation strategy and find that multinationals in

European high-tax countries pay about 32% less CIT than "matched" domestic companies.

This estimate is of the same order of magnitude of the 27% found by Finke (2013) for

Germany using the same econometric model. A word of caution is necessary however for

these studies as well. There could be unobservable aspects explaining the difference between

these two classes of companies and biasing therefore the results. For instance, to the extent

that governments deliberately try to attract multinationals granting them specific tax benefits,

the estimated gap would be partly attributable to factors other than tax avoidance.

A part of the empirical literature focuses on the importance of specific channels of profit

shifting. Overall, pricing of intra-firm transactions and strategic IP location seem to

explain about 70% of profit shifting.

The policy relevance of this empirical literature is

straightforward: by providing statistical information on the relative importance of the different

tax avoidance channels, it is possible to design correctly the anti-avoidance measures to

maximize their effectiveness, while at the same time minimizing the downside effects in

terms of compliance and administrative costs. The pricing of intra-group transactions, the

strategic location of IP, and the debt-shifting channel are all statistically important, although

See Riedel (2014).

kom (2015) 0302 - Ingen titel

in relative terms the first two channels account for more than two thirds of the overall profit

shifting activities (see graph 8).

Graph 8. The relative importance of the different profit shifting channels

28%

Transfer Pricing and

IP Location Channels

Debt-Shifting

Channel

72%

Source: Commission Services

a. Profit shifting via transfer pricing

Empirical analyses of tax-motivated transfer pricing show a significant impact of

corporate taxation on internal import and export prices.

The empirical evidence is

available for the US and some European countries. According to the estimates by Davies

et al.

(2014) for France, large multinationals and some tax havens play a crucial role in these profit

shifting activities. For European multinationals, Lohse and Riedel (2013) find robust evidence

of profit shifting. They also find that transfer pricing documentation and special transfer

pricing penalties are very effective in tackling the issue. Table 2 gives an overview of the

most important studies on the impact of transfer price manipulation and their results.

See Heckemeyer and Overesch (2013).

kom (2015) 0302 - Ingen titel

Table 2: Overview of studies analysing transfer price manipulation

Transfer pricing studies

Clausing

(2003)

Bernard et

al. (2006)

Cristea and

Nguyen

(2013)

Davies et al.

(2014)

Lohse and

Riedel

(2013)

(1997-1999)

(1993-2000)

Denmark

(1999-2006)

France

(1999)

Export prices

Wedge between arm's

length and intra-firm

prices

Export prices

Wedge between arm's

length and intra-firm

prices

Earnings Before

Interest and Taxes

-1 percentage point of CIT rate in the

destination country reduces export prices

by 1.8%

- 1 percentage point of CIT rate increases

the wedge by between 1.6 and 4.2%

Owning an affiliate in a low-tax country

reduces export prices by between 5.7% and

9.1%.

For exports in tax havens, intra-firm prices

are estimated to be 11% lower than arm's

length prices.

+ 10 p.p. of CIT rate decreases reported pre-

tax profits by 3.94%. Transfer pricing

documentation and special transfer pricing

penalties reduce profit shifting by around

50%.

+ 10 p.p. tax rate differential between

France and its trade partners reduces intra-

firm export prices by 2.2% and increases

intra-firm import prices by 2.4%.

Europe (1999-2009)

Vicard

(2014)

France

(2000-2012)

Intra-firm export and

import prices

Source: Commission Services

b. Profit shifting via the location of Intellectual Property

Recent econometric evidence shows the importance of profit shifting through the

strategic location of Intellectual Property (IP).

The corporate tax seems to affect IP in the

balance sheets, the patent applications, as well as the sensitivity of pre-tax profits to changes

of the CIT rate. As regards the location of IP, for instance, Karkinski and Riedel (2012) find

that an increase of 1 percentage point of the corporate tax rate reduces the number of patent

holdings by about 3.5%. The estimates in Böhm et al. (2012) for Europe indicate that the

probability of patent relocation to a tax haven is increasing with the value of the patent and

that controlled foreign company (CFC) - legislation may be effective in reducing this form of

profit shifting. Beer and Loeprick (2014) find that mandatory documentation requirements are

effective in reducing profit shifting by transfer pricing; this result does not hold for those

subsidiaries with large intangible assets. Table 3 summarizes the findings of recent studies on

the use of intangibles for profits shifting purposes.

kom (2015) 0302 - Ingen titel

Table 3: Overview of studies analysing intellectual property location

Intangible assets

Dischinger and

Riedel (2011)

Karkinski and

Riedel (2012)

Griffith et al.

(2014)

Europe

(1995-2005)

Europe

(1978-2007)

Europe

(1985-2005)

Intangible property in the

balance sheets

- 1 p.p. in the average tax difference to

all other group affiliates increases the

subsidiary's IP in the balance sheet by

about 1.7%

+1 p.p. of CIT rate decreases patent

applications by about 3.5%-3.8%

(depending on the empirical model)

+1 p.p. of CIT rate decreases patent

applications by about 0.5%-3.9%

(depending on the location)

Tax sensitivity of reported profits to 1

p.p. increase of the CIT rate increases

from 0.76% to 1.2% for subsidiaries

with an above median intangible

assets endowment.

An increase of 1 standard deviation of

patent value increases the probability

of patent relocation in a tax haven by

about 16%. This probability of patent

relocation in a tax haven is reduced by

about 1/3 by CFC legislation.

+ 1 p.p. of CIT rate decreases patent

applications by about 13.1%

(pharmaceutical), 1.5% (ICT sector)

and 5.4% (car sector). The presence of

patent boxes has a strong and

significant effect on patent

applications.

Patent holdings

Beer and

Loprick (2014)

World (ORBIS)

(2003-2011)

Tax sensitivity of reported

profits and endowment of

intangible assets

Böhm et al.

(2012)

Europe

(1978-2007)

Probability of patent

relocation to tax haven and

effectiveness of CFC

legislation

Joint Research

Centre - TAXUD

(2015)

World (2000-

2011) top 2,000

corporate R&D

investors

Patent holdings

Source: Commission Services

c. Profit shifting via intra-firm debt

Multinational companies also shift profits by locating equity in low tax countries while

financing subsidiaries in high tax countries with intra-firm debt to benefit from the

deductibility of interest from the tax base.

The most recent evidence for Europe shows that

foreign-owned plants have a higher debt-asset ratio than domestically owned plants. This gap

increases with the CIT rate of the host country as shown by Egger et al. (2010). For German

multinationals, Schindler et al. (2013) find that in a group with two affiliates, a 10 p.p.

increase of the CIT rate in the high-tax country increases the debt-asset ratio by 4.6% in that

country and lowers it by 1.4% in the other country. 40% of the increases of the debt asset ratio

are due external debt, the rest to internal debt according to this study. Riedel (2014) finds that

the tax elasticities in the literature imply that on average an increase of 10 percentage points

of the CIT rate is associated with an increase of about 10% of the affiliated internal debt-ratio.

Table 4 gives and overview of empirical studies analysing the debt-shifting channel.

In conclusion, there is clear evidence of profit shifting activities by multinational

companies. The most important channels are transfer pricing manipulations and the use

of intangible asset location.

Debt shifting is a third channel but less important compared to

the other two. From a policy perspective this means that solutions to tackle the profit shifting

problem should concentrate in improving the consistency of transfer pricing and by reducing

incentives to shift income related to intangible assets.

kom (2015) 0302 - Ingen titel

Table 4: Overview of studies analysing intra-firm debt shifting

Debt-Shifting Channel

Desai et al.

(2004)

Huizinga et al.

(2008)

(1982-1994)

Europe

(1994-2003)

Debt/Asset

(internal and

external)

Debt/Asset

Ratio of

domestically

and foreign-

owned plants

Internal Debt

Ratio

Internal and

External

debt/asset

ratio

+10 p.p of CIT rate increases the affiliates' debt/asset

ratio by about 2.8% (about 1.9% for external debt and

3.5% for internal debt).

For a multinational with two affiliates, a 10 p.p. increase

of the CIT rate in one country increases the debt/asset

ratio by 2.4% in that country and lowers it by 0.6% in

the other country.

Foreign-owned plants exhibit a debt/asset ratio higher

than domestically owned plants by 1.7 p.p. This gap

increases with the CIT rate of the host country. + 1 p.p.

of CIT rate in the host country is associated with an

increase of the debt/asset ratio by 0.7 p.p.

+10 p.p. of tax rate difference with respect to the

lowest-tax affiliate increases internal debt ratio by

about 0.73%.

For a multinational with two affiliates, a 10 p.p. increase

of the CIT rate in the high-tax country increases the

debt/asset ratio by 4.6% in that country and lowers it by

1.4% in the other country. 40% of the increases of the

debt asset ratio are due external debt, the rest to

internal debt.

Egger et al.

(2010)

Europe

(1996-2004)

Büttner and

Wamser (2013)

Germany

(1996-2005)

Schindler et al.

(2013)

Germany

(1996-2006)

Source: Commission Services

PTIONS

The interplay of the current distribution of taxable profits, higher capital mobility due

to globalization and digitalisation and the lack of a similar international integration of

tax policies can lead to tax competition and profit shifting.

The question is how the three

main roots of the problem (1) distribution of taxable profits, (2) increased capital mobility and

(3) insufficient co-ordination of tax policies at the international level can be addressed to

reach the objective to tax profits there where the economic activity takes place. Three areas of

action can be identified and are described in more detail in the action plan accompanying the

Communication and this Staff Working Document:

The first action area would seek to replace the current system of distributing

taxable profits and create a more stable allocation rule.

The most obvious

candidate for this is the CCCTB. In economic tax research also the possibility of new

systems such as destination based cash-flow taxes are discussed.

The second set of actions comprises measures which try to reform the current

international tax rules by closing loopholes and fixing issues in the current system

of separate accounting, arm's length pricing and bilateral tax agreements.

In this

area measures related to BEPS are covered as well as actions to improve transfer

pricing and the income flows related to intangible assets. The discussion about an

effective level of taxation would also fall in this category. The reason is that effective

tax levels would not generally change the distribution of taxable profits among

countries but - depending on the base chosen – they would rather impact the current

revenue allocation for specific income types.

The last area is to improve the current way of working together at the EU level

on tax issues by reforming the governance structure and improve the overall

exchange of information.

This would not only increase the overall transparency of

kom (2015) 0302 - Ingen titel

tax discussions at the EU level and reduce possible information asymmetries between

tax administrations. A stronger overall information exchange on capital income (at the

corporate but also at the private level) could act as a break or even reduce the impact

of capital mobility.

kom (2015) 0302 - Ingen titel

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NNEX

A1.1

TYLIZED FACTS ABOUT THE

CIT

IN THE

UROPEAN

NION

1995-2015

NTRODUCTION

This annex describes the evolution of the Corporate Income Tax in the 28 current

Member States of the European Union. It relates this evolution to earlier descriptions in

the economic literature.

The evolution of statutory corporate income taxes since the 1980's

has been described in many studies

. Devereux, Griffiths and Klemm identified in their 2002

paper a number of stylized facts. These were updated in 2004 by Devereux and Sorensen.

Their database ends in 2004 and describes some non-EU countries, but does not describe all

current EU Members. This annex focuses on the EU over the period 1995-2014. It partly

describes the same indicators as the aforementioned studies.

A1.2

COUNTRIES

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

BRIC

2013

2014

EVOLUTION OF THE STATUTORY RATE IN THE

COMPARED TO OTHER

Graph 1: Statutory CIT rates, 1995-2014

EU-28

EA-18

OECD-7

Source: Taxation Trends in the European Union (2014)

The worldwide reduction of statutory corporate income tax rates since the 1980s has

continued at least until 2007. After that year, the pace of reduction in Europe levelled

off.

Devereux and Sorensen established that 'statutory tax rates have fallen substantially since

the early 1980s; while the pace of reductions has varied over time, it appears to be continuing

(in 2004)'. Graph 1 shows that this decline has continued in the period 1995-2014, notably up

to 2007. In the EU, the reduction of the average CIT rate was stronger than in the other

regions under consideration. These are the OECD-7 (Australia, Canada, Japan, Switzerland,

Iceland, Norway and the USA) and the BRIC-countries (Brazil, Russia, India, and China).

The fact that rates have decreased more in Europe than in the other regions contributes to the

For an overview, see Devereux and Loretz (2012).

kom (2015) 0302 - Ingen titel

image

that the EU is the driving force of the competition behind these reductions. The

difference between the EU and notably the OECD-7 grew mainly in the period 2000 – 2005.

In that period, the decline in the OECD-7 and the BRIC-countries subsided, while the

decrease in the EU continued. After the crisis, the pace of the reductions in the EU receded,

while Canada and Japan introduced new reductions. The USA was one of the few countries

that did not change its rate over the considered period.

A1.3

HE EVOLUTION OF

ORPORATE

NCOME

AX REVENUES

The revenues of the Corporate Income Tax (CIT) show a volatile trajectory around 3

per cent of GDP and 8.5% of total tax revenues. Despite the reductions of the rates, the

structural level seems to be relatively stable.

Over the years, the development of the share

of CIT can be divided into five stages. The averages show a strong increase in the period 1995

– 2000, a moderate reduction in the period 2000 – 2003, a strong increase in the run-up to the

crisis in the period 2003 – 2007 and a steep decline during 2007-2009. After this decline the

share of CIT more or less stabilised at a level close to that of 1995. This indicates that the

share of CIT revenues is more or less stable. The volatility of CIT revenues is strongly related

to fluctuations of economic growth. Not only are profits very responsive to economic growth,

also the carry back of losses to earlier years can increase the reduction of CIT revenues during

periods of lower economic growth.

Graph 2: Average share of CIT revenues to GDP, GDP growth, EU-27, 1995-2012

4,0

3,5

3,0

2,5

2,0

1,5

1,0

0,5

0,0

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

-2

-4

-6

GDP Growth (rhs)

EU-27

EA-18

Source: Taxation Trends in the European Union (2014), Eurostat

In 2014, the share of CIT revenues to GDP is highest in Luxemburg (5.3 % GDP),

Cyprus and Malta (both 6.3 % of GDP), while Greece, Slovenia and Lithuania receive

1.3 % or less of GDP from corporate income tax. Malta and Cyprus show the highest

increase of the revenue share. Slovakia, Bulgaria and Romania experienced a

considerable decline over the considered period.

This is shown in graph 3, which ranks the

Member State in descending order of their CIT to GDP rate in 2012. In 1995 this order looked

different. Slovakia had the highest share of Corporate Income Tax to GDP (6.6 %), followed

In their study Devereux and Loretz state that 'most of the newer contributions (to the tax competition

debate) see the European Union as driving force of tax competition'. (p.20).

kom (2015) 0302 - Ingen titel

by Luxemburg, Bulgaria, Czech Republic and Cyprus. Austria and Slovenia (0.5 % of GDP)

displayed the lowest share. Although the average share increased in the following period,

many New Member States watched the share of corporate income tax decline. In 2000,

Luxemburg (7.0 %) and Cyprus (6.2 %) had the highest share and the Baltic States (between

0.7 % and 1.6 %) and Slovenia (1.2 %) the lowest. In 2007, as the shares of corporate

revenues were at an all-time high, Luxemburg (5.3 %), Cyprus (6.8 %) and Malta (6.2 %) had

the highest shares and Estonia

(1.6 %), Lithuania (2.6 %) and Greece (2.6 %) the lowest.

This has not changed much after the crisis: the same three countries have the highest shares

while Slovenia, Greece and Lithuania are on the lower end of the ranking.

Graph 3: CIT revenues to GDP, EU-Member States, 1995, 2000, 2007, 2012

8,0

7,0

6,0

5,0

4,0

3,0

2,0

1,0

0,0

Malta

Cyprus

Luxemburg

Czech Republic

Belgium

Denmark

Sweden

Italy

Portugal

Germany

Slovakia

Ireland

Austria

France

Finland

Romania

Spain

Poland

Netherlands

Bulgaria

Croatia

Latvia

Estonia

Hungary

Lithuania

Slovenia

Greece

1995

2000

2007

2012

Source: Taxation Trends in the European Union (2014)

A1.4

CLOSER LOOK ON THE DEVELOPMENTS IN THE

EU.

The reduction of the average rate was accompanied by a decrease of both the lowest and

the highest rate in the EU.

Graph 4 plots the statutory rates across the EU in 1995, 2000,

2007 and 2015. Member states are ranked by their statutory CIT rate in 2014. Graph 5 shows,

apart from the EU-28 average, the evolution of the highest and the lowest statutory rates that

were observed in the current EU, as well as those of the averages for other subgroups of the

EU. Over the period 1995-2014, the EU-28 average rate declined by 12 percentage points

from 35 % to 23 %. The highest rate was reduced from 56.8%

in Germany in 1995 to 38.0

% in France in 2014. The lowest headline rate, 19.6 % in Hungary in 1995, decreased to 10 %

in Bulgaria in 2014. Germany held the highest rate until the corporate tax reform of 2001, in

which year the German rate undercut the Italian one, which was at 40.3%. After a reduction in

Italy in 2003, the German rate again was highest until the reform of 2008. In that year,

In 2000, Estonia limited the Corporate Income Tax to distributed profits.

Including the local trade tax.

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statutory rates in all other Member States had been lowered below the Maltese level of 35 %.

Only in 2012 the increase of the surcharge in France took the combined rate above the

Maltese level

. For the period 1995 – 2001 the lowest corporate tax rate, national rate plus

local taxes, was to be found in Hungary at a level of 19.6%. In 2002 Lithuania reduced its rate

to 15%, which was the lowest in that year. One year later, Ireland

reduced the headline rate

to 12.5 %, which became the lowest. Since 2005 the lowest rate available is 10%. This rate

was available in Cyprus (2005-2012) and is in force in Bulgaria since 2006. All in all, the

maximum rate was reduced by 18.8 percentage points and the minimum rate by 9.6%.

Graph 4: Statutory CIT rates, EU-Member States, 1995, 2000, 2007, 2014

France

Malta

Belgium

Portugal

Italy

Germany

Spain

Luxemburg

Greece

Netherlands

Austria

Denmark

Slovakia

Sweden

Estonia

Hungary

Croatia

Finland

Czech Republic

Poland

Slovenia

Romania

Latvia

Lithuania

Ireland

Cyprus

Bulgaria

1995

2000

2007

2014

Source: Taxation Trends in the European Union (2014)

Please note that the highest rate in France only applies to enterprises with a turnover of more than EUR

250 million and that the Maltese system of imputation and refunds is not taken into account.

Until 2003, Ireland applied a 10 % CIT rate to qualifying manufacturing and services companies.

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Graph 5: Statutory CIT rates, maximum EU-28, unweighted averages EU-28, EA-18, EU-15

and NMS, minimum EU-28, 1995-2014

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

max

EU-28

EU-15

NMS

EA-18

min

Source: Taxation Trends in the European Union (2014)

Headline rates of different Member States have come closer to each other.

In the period

1995 – 2001 the spread, the difference between the highest and the lowest corporate tax rate

was reduced from 37 percentage points to 20 percentage points, mainly by the reductions in

Germany. In later years reductions of the lowest rates increased the spread between minimum

and maximum again. In the years 2007 – 2011 it stabilised at 25 percentage points. After that

year, due to the increases in France, it rose again to 28 percentage points. This is plotted in

graph 4. This graph also contains the standard deviation of the rates. This measure for the

spread is less sensitive to the behaviour of the highest and the lowest rate. Its trajectory

corroborates the image that the spread has been reduced until 2001, but rebounded to a level

below that of 1995.

Graph 4: Measures of the spread of CIT-rates, EU-28

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

maximum-minimum

standard deviation (right hand scale)

Source: Taxation Trends in the European Union (2014) and Commission services

The reduction of the average corporate income tax rate in the period 1995-2014 was

supported by almost all Member States. The fastest reduction took place in the period

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2000-2005, when 23 countries reduced their rates. In the period 2005-2010, the number

of Member States reducing the rate decreased, to decrease even further after the crisis.

This is one of the causes of the levelling off of the reduction of the average rate. This is

shown in table 1 and graph 5. Only in two Member States (France and Hungary), the rate was

higher in 2014 than in 1995. In Malta, the rate didn't change over the period under

consideration. Looking at five year periods, we see that in the period 2000-2005 both the

number of countries reducing the rate and the average reduction were high. Only the UK,

Sweden, Slovenia, Malta and Spain did not change the rate in that period. After the crisis still

six Member States reduced the rate (the UK, Sweden, Finland, Slovenia, Netherlands and

Denmark), but that was balanced by the same number of countries increasing the rate (Greece,

France, Cyprus, Luxembourg, Portugal and Slovakia).

Table 1: Number of Member States increasing and decreasing the statutory CIT rate

1995-2000

Number reducing the rate

Number increasing the rate

Change of (unweighted)

average rate

-2.9

2000-2005

-6.8

2005-2010

-2.1

2010-2014

-0.3

Total 1995-2014

-12.0

Source: Commission services

Graph 5: Change of average CIT-rate and number of Member States increasing or

decreasing rates

-2

-4

-6

-8

-10

-12

-14

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

-2,0

-0,5

-1,0

-1,5

0,0

1,0

0,5

# reducing rate

# increasing rate

change of average rate (rhs)

Source: Commission Services

E.g. Chatelin and Peyrat: Are small countries leaders of the European tax competition?, Documents de

travail du Centre d'Economie de la Sorbonne 2008.58

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Reductions in the new member states were larger and started earlier than in the old

member states.

In the literature on this subject, it is stipulated that tax competition is related

to the openness of individual economies and the integration of the different economies. In this

respect, the enlargement of the EU in 2004 could have caused an increase of the tax

competition as the economies of the existing EU-15 states and the New Member States have

become more open to each other and more integrated. We have already seen in graph 5 that

the strongest reductions of CIT rates took place before the enlargement. In table 2 the

evolution of the average CIT rate has been decomposed between the 'old' EU-15 and the New

Member States. Overall, the New Member States reduced their rates stronger than the EU-15.

They also started earlier. In the period 2000-2005 the reduction in the NMS was larger than

that in the EU-15. In 2005-2010 the reductions in the EU-15 were larger than in the new

member states.

Table 2: Change of (unweighted) average statutory CIT rate, 1995-2014

1995-2000

EU-15

NMS

EU-28

-2.7

-3.3

-2.9

2000-2005

-5.3

-8.4

-6.8

2005-2010

-2.7

-1.3

-2.1

2010-2014

-0.6

0.2

-0.3

Total 1995-2014

-11.3

-12.8

-12.0

Source: Taxation Trends in the European Union (2014)

A1.5.

BASE BROADENING

CHANGES IN CAPITAL ALLOWANCES

Base broadening has been less ubiquitous than rate reduction: Thirteen Member States

have broadened the corporate tax base by reducing depreciation allowances, seven

narrowed the base by increasing them and one reduced allowances for one type of

investments and increased them for the other two types. The number of Member States

increasing allowances for investments in intangibles exceeds the number reducing these

allowances.

Countries reducing the statutory Corporate Income Tax rate sometimes increase

the tax base to partly compensate the revenues foregone. Devereux et al. use the development

of depreciation allowances for machinery as an indicator for the broadening or narrowing of

the corporate tax base. For the EU data on these allowances can be found in the yearly ZEW

publication

on effective tax corporate tax levels. Table 3 shows the number of Member State

changing depreciation allowance rules and the average change of the depreciation

allowance

. A reduction of the allowance means a broadening of the tax base. Reduction of

the depreciation allowance has been used by roughly half of the Member States: thirteen

Member States reduced the allowance for at least one type of investment: Denmark, Germany,

Ireland, Greece, Spain, France, Italy, Malta, Austria, Poland, Romania, Slovenia and the UK.

On the other hand, seven Member States increased the generosity of the allowance regime:

Bulgaria, Czech Republic, Croatia, Cyprus, Lithuania, Hungary, Slovakia and Finland.

Hungary allowed more depreciation of machinery and intangibles, but reduced depreciation of

buildings. Estonia limited the corporate income tax to distributed profits in 2000. Until 2010,

the number of Member States increasing allowances roughly balanced the number of Member

States decreasing them. After 2010, base broadening became more popular. The desire of

administrations to attract investments in intangibles is reflected by the fact that more Member

States increased allowances for this type of investment.

ZEW (2014): Effective Tax Levels Using the Devereux/Griffiths Methodology, Final Report 2014,

Project for the EU Commission TAXUD/ 2013/ CC/120.

The value of the allowances is calculated as the Net Present Value of the allowed depreciation for tax

purposes.

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Some Member States used accelerated depreciation to try to increase investments after

the crisis.

Germany, the Netherlands, Austria and Finland introduced accelerated depreciation

for machinery in 2009 to counter the reduction of investments in the crisis. After two or three

years these measures were withdrawn.

Base broadening is more common in large economies than in smaller ones. Reduction of

allowances is the strongest for buildings, less strong for machinery and the weakest for

intangibles.

On average, the depreciation allowances for buildings have been reduced,

indicating base broadening.. The trend for the other types of capital depends on the way the

average is being calculated. For machinery, the unweighted average of the allowance has

remained almost stable, and the weighted

average has declined. The unweighted average

allowance for intangibles even increased, while the weighted average has declined. All this

indicates that base broadening has been stronger in countries with a higher GDP than in

countries with a lower one.

Table 3: Number of Member States changing capital allowances and the change of the

allowances

1998-

2000

Industrial buildings

Number reducing the allowance (base broadening)

Number increasing the allowance (base narrowing)

Change of unweighted average allowance

Change of weighted average allowance

Machinery

Number reducing the allowance (base broadening)

Number increasing the allowance (base narrowing)

Change of unweighted average allowance

Change of weighted average allowance

Intangible assets

Number reducing the allowance (base broadening)

Number increasing the allowance (base narrowing)

Change of unweighted average allowance

Change of weighted average allowance

One of the above

Number reducing allowances (base broadening)

Number increasing allowances (base narrowing)

Number increasing allowances for one type and

reducing for other types

1.8

0.0

1.0

-2.1

0.0

0.4

0.6

-0.4

3.4

-2.0

0.2

-0.1

1.6

-1.4

0.4

-0.7

-1.8

-3.5

0.4

-5.7

0.7

-4.0

-2.0

-1.6

-4.4

-0.1

-1.9

-3.0

-12.3

2000-

2005

2005-

2010

2010-

2014

Total

1998-2014

Source: Commission services, based on ZEW

GDP-weighted.

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A1.6

HE EVOLUTION OF EFFECTIVE TAX RATES

Due to the reduction of the statutory rate, the effective average tax rate and the effective

marginal tax rate fell, but to a lesser extent than the statutory rates.

Looking at the

taxation of return on investments, the statutory rate and depreciation allowances are not the

only determinants of the amount of payable tax. For instance, the way in which investment is

financed - by retained earnings, new equity or debt – can influence the amount of payable tax.

To grasp some of these differences, measures for the effective average tax rate (EATR) and

the effective marginal tax rate (EMTR) have been constructed. The EATR is the share of

taxes to be paid in the return on an investment with a

return

exceeding the cost of capital. The

EMTR signifies the share of taxes on the marginal investment, which generates no net return

over the cost of capital. Data for these two indicators for all EU Member States and a number

of other countries are published yearly by ZEW.

In the literature it is assessed that the statutory rate mainly influences profit shifting, while

discrete investment decisions depend on the effective average tax rate and capital flows

depend on the effective marginal tax rate. In 1998

, the average EATR was 5.1 percentage

points lower than the average

statutory

rate (29.1 % and 34.2 %, respectively) and the EMTR

13.5 % (at a rate of 20.7 %) In table 3 it is shown that as statutory rates declined, also the

effective tax rates have been reduced, but to a lesser extent than the statutory rate. The

difference between the statutory rate and the effective average rate has been reduced by 3.1

percentage points and the difference between the effective marginal tax rate and the statutory

rate by 6.2 percentage points. Not in all Member States the difference between statutory and

effective rates fell. In Belgium, Estonia, Hungary and Portugal, it increased and in Malta it did

not change.

It is in the line of expectations that effective rates will fall when statutory rates do and that the

absolute reduction will be less for the effective rates. It is, however, not immediately clear if

the different trajectories are an indication of base broadening. The statutory rate is clearly part

of the effective rates. As the indicators used are averaged across types of investment

(buildings, machinery, intangibles) and ways of financing (retained earnings, new equity,

debt), the evolution of the effective rates in absence of any change of the base is not clear-cut.

Table 3: Change of average CIT rate, effective average tax rate, effective marginal tax rate, 1998 –

2014 in percentage points, EU-28

1998-2000

CIT rate

EATR

EMTR

-2.0

-1.7

-1.9

2000-2005

-6.1

-4.3

-1.4

2005-2010

-2.1

-2.0

-2.5

2010-2014

-0.3

0.1

0.8

Total 1998-2014

-10.4

-8.0

-4.9

Source: ZEW and Commission services

A1.7

REFERENTIAL REGIMES

The number of Member States with an IP box started to increase in 2007. In 2014 ten

Member States offer a special CIT rate for the proceeds of R&D.

Apart from changing the

tax rate and base, countries can compete by many other means. A common measure taken by

Member States is the introduction of a preferential regime for profits originating from the

1998 is the first year of the ZEW publications

To keep the table consistent, in this table CIT rate data from ZEW are being used. These differ slightly

from those published in Taxation Trends in EU-Member States

kom (2015) 0302 - Ingen titel

development or the purchase of intellectual property (IP). Although modalities differ

, the

common feature is that profits derived from the use of intellectual property (IP) are being

taxed at a reduced rate. This type of system existed in France and Ireland in 1998. Hungary

introduced an IP-box in 2003 followed by Netherlands and Belgium in 2007 and by

Luxemburg and Spain in 2008. Finally, Malta, Cyprus, the UK and Portugal took likewise

measures in 2010, 2012, 2013 and 2014, respectively, while Ireland abolished its rule in 2010.

The so-called IP box offers a rate with a reduction

with respect to the headline CIT rate. The

lowest reduction is 50 % in Hungary and Portugal, while Malta offers a reduction of 100 %.

The rise in the number of IP-boxes occurred when the reduction of corporate tax rates

decelerated. It should be noted that these boxes are under scrutiny of the European

Commission. In Graph 7 the number of countries involved and the average discount is

reproduced.

Graph 6: Number of Member States offering IP boxes and average reduction of rates

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

120%

100%

80%

60%

40%

20%

number of Member States

average reduction (right hand scale)

Source: Commission Services

A1.8

HE RELATION BETWEEN

GDP

AND STATUTORY RATES

According to economic theory, larger countries are less vulnerable to tax competition

than smaller countries.

Several authors

point at a relation between size and tax

competition. For large economies the necessity to compete for foreign investments would be

less and the loss from rate reductions would be higher than in smaller countries. Therefore,

rates in larger countries would be higher than in smaller countries. To shed some light on this

hypothesis, graph 8 plots the level of the corporate tax rate against GDP in 1995.

In 1995 Germany and Italy dominate the image.

Looking at the picture for 1995, the high

rates in Italy and Germany immediately meet the eye. For the rest, the image is mixed. A

number of (future) Member States with low GDP have high statutory corporate tax rates.

Data based on the information in JRC/TAXUD (2015)

For instance, the rate of the Dutch 'innovation box' is 5 %. Compared to the headline rate of 25 %, this

is a reduction of 80%.

E.g. Slemrod (2004) and Chatelais and Peyrat (2008)

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Graph 8: Relation of GDP and statutory CIT rate, 1995

Graph 9: Relation of GDP and statutory CIT rate, 2013

Source: Commission services

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In 2013, smaller countries seem to have lower rates than larger countries.

Especially the

New Member States have decreased their ranking

. Graph 9 shows the situation for 2013. A

line has been drawn around the New Member States. The 2013 situation shows another

outlier. Malta, that did not change its rate, appears among the countries with the highest

corporate rates. For the rest, New Member States that had relatively high rates in 1995 now

are below the average (e.g. Czech Republic and Poland) or at the lower end (Bulgaria) of the

distribution.

With the exception of Malta.

kom (2015) 0302 - Ingen titel

NNEX

PPLICATION OF THE

OMMISSION

ECOMMENDATION ON AGGRESSIVE

LANNING AND ON

EASURES TO

NCOURAGE

HIRD

OUNTRIES TO

PPLY

INIMUM

TANDARDS OF

OOD

OVERNANCE IN

ATTERS

The purpose this paper is to provide factual information relating to the application of the

Recommendations on aggressive tax planning and on measures intended to encourage

third countries to apply minimum standards of good governance in tax matters, which

contributed to the Commission Action Plan in 2012

In response to the Recommendations, the Council invited Member States to consider the

appropriateness of incorporating a General Anti Abuse Rule, such as that suggested in the

Recommendation on aggressive tax planning, in their national legislation and invited

consideration of whether developing a European list of third country non-cooperative

jurisdictions is appropriate (ECOFIN conclusions of 14 May 2013 and European Council

conclusions of 22 May 2013).

The application of the Recommendations has been discussed in the Platform for Tax good

Governance, which is composed of representatives of the 28 Member States and of 15

organisations representing business, civil society and tax practitioners. One of the

purposes of the Platform of good tax governance is to assist the Commission in preparing

its report on the application of the Recommendations. This was one amongst the priorities

in the agreed work programme of the Platform. Accordingly, the Platform held

discussions on both Recommendations at its meetings on 16 October 2013, 6 February

2014, 10th June 214, 19

December 2014 and 2

March 2015.

The detailed work of the Platform and all related documents are available on the dedicated

webpage

of DG Taxation and Customs Union.

The purpose of the

Recommendation regarding measures intended to encourage third

countries to apply minimum standards of good governance in tax matters

is to

increase the overall effectiveness of the measures taken by each Member State in relation

to third countries not meeting the minimum standards of good governance in tax matters

(transparency, exchange of information, and fair tax competition). To this effect, the

Recommendation provides criteria making it possible to identify third countries not

meeting these minimum standards, and lists a series of actions that Member States may

take in relation to such countries.

The work programme of the Platform for tax good governance provides that '

The Platform

will discuss and suggest a mechanism or process to ensure consistency in the establishment

and monitoring of the black lists. Where appropriate, the Platform can suggest follow-up or

complementary steps to the current Recommendation, both regulatory and organisational,

with a view to contributing to its essential goal: global promotion of the EU standards of

good governance in tax matters

The purpose of the

Recommendation on Aggressive Tax Planning

is to better enable

Member States to address aggressive tax planning by reducing double non-taxation and

An Action Plan to strengthen the fight against tax fraud and tax evasion (COM(2012)722),

Recommendation regarding measures intended to encourage third countries to apply minimum

standards of good governance in tax matters (C(2012) 8805) and Recommendation on aggressive tax

planning (C(2012) 8806).

kom (2015) 0302 - Ingen titel

ensuring a minimum level of protection across the EU MS by the adoption of a general

anti-abuse rule (GAAR) taking into account the limits imposed by Union law.

The work programme of the Platform provides that 'The

Platform will discuss how a

common interpretation of the GAAR recommended by the Commission can best be

ensured. Where needed, the Platform will discuss how the application of the GAAR relates

to tax incentives introduced by individual Member States.

The Platform will discuss possible ways to implement a tax treaty clause which ensures

that treaty provisions aimed at avoiding double taxation do not enable double non-

taxation. It will also discuss best-practices that could assist Member States in the

practical application of such clauses'.

The outcome of the work of the Platform so far is reflected in the discussion paper

Platform/13/2014/EN/rev2

(see annex 3). Based on factual elements, discussions held in

the Platform, and conclusions discussed within the Platform, this paper reviews how the

Recommendations have been followed-up by Member States and mentions some possible

further steps.

_________________________

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NNEX

LATFORM FOR

OOD

OVERNANCE

PLATFORM FOR TAX GOOD GOVERNANCE

Discussion paper on the follow-up of the Commission

Recommendations of 6 December 2012

Building blocks

Meeting of 2

March 2015

Disclaimer:

This annex 3 is a Commission services working paper prepared by DG TAXUD for discussion

purposes. It does not represent a formal Commission or Commission services position or

policy. The paper is therefore without prejudice to any position which may be taken by the

Commission in the future.

Contact:

Secretariat Platform, Telephone (32-2) 29.55.762

E-mail:

[email protected]

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NTRODUCTION

When adopting its Action plan and two Recommendations

, the Commission committed

to report within three years on the application of the Recommendations.

In response to the Recommendations, the Council invited Member States to consider the

appropriateness of incorporating a General Anti Abuse Rule, such as that suggested in the

Recommendation on aggressive tax planning, in their national legislation and invited

consideration of whether developing a European list of third country non-cooperative

jurisdictions is appropriate (ECOFIN conclusions of 14 May 2013 and European Council

conclusions of 22 May 2013).

One of the purposes of the Platform of good tax governance is to assist the Commission in

preparing its report

on the application of the Recommendations. This was one amongst

the priorities in the agreed work programme of the Platform. Accordingly, the Platform

held discussions on both Recommendations at its meetings on 16 October 2013, 6

February 2014, 10th June 214 and 19th December 2014.

All Member States support tackling tax avoidance and tax evasion, but there are

differences of opinion on how that can be achieved.

The present document aims at preparing the field for this Commission report on the

application of the two Recommendations. The paper is structured around building blocks

and contains some suggestions for the way forward. Members of the Platform are invited

to provide comments at the meeting. Written comments are also welcome.

OF THE

ECOMMENDATION REGARDING MEASURES INTENDED TO

ENCOURAGE THIRD COUNTRIES TO APPLY MINIMUM STANDARDS OF GOOD

GOVERNANCE IN TAX MATTERS

PPLICATION

The purpose of the Recommendation is to increase the overall effectiveness of the

measures taken by each Member State in relation to third counties not meeting the

minimum standards of good governance in tax matters (transparency, exchange of

information, and fair tax competition). To this effect, the Recommendation provides

criteria making it possible to identify third countries not meeting these minimum

standards, and lists a series of actions that Member States may take in relation to such

countries.

The Commission services intend to report on the basis of:

- the factual elements contained in the discussion paper presented to the Platform for its

meeting on 19 December (Platform/11/2014/EN),

- the discussions held in the Platform,

An Action Plan to strengthen the fight against tax fraud and tax evasion (COM(2012)722),

Recommendation regarding measures intended to encourage third countries to apply minimum

standards of good governance in tax matters (C(2012) 8805) and Recommendation on aggressive tax

planning (C(2012) 8806).

Formally, DG Taxation and Customs Union (TAXUD) will prepare a draft in consultation with other

Commission services, for consideration by the College.

kom (2015) 0302 - Ingen titel

- and to draw possible conclusions on how the Recommendations have been followed-up

by MS. Such conclusions may in fact go further, and outline ways of making the content

of the Recommendations more easy to apply.

This structure is the one followed under each section (criteria used, lists, etc.).

It should be noted that no Member State has so far reported having fully followed the

Recommendation.

The Recommendation regarding measures intended to encourage third countries to apply

minimum standards of good governance in tax matters ('tax havens' Recommendation)

was discussed at the Platform meetings of 16 October 2013, 6 February 2014, 10 June

2014 and 19 December 2014. A questionnaire, to which all MS replied, was circulated to

allow a comparison across Member States (MS) on criteria applied and measures

triggered.

4.1

Criteria used

2.1.1. Factual elements

Information based on document Platform/11/2014/EN

Member States have reported using various types of criteria, sometimes in combination,

for assessing the tax systems of other countries. However these criteria may be used for

other purposes than establishing lists.

Criteria provided for by the Recommendation



Compliance with transparency and exchange of information standards

: this

criterion is used by 18 MS (BE, BG, CY, CZ, DE, EE, EL, ES, FR, HR, IE, IT,

LT, LV, PL, PT, SE, UK), out of which 13 MS use it for blacklisting purposes

only one MS (DE) uses it as sole criterion for blacklisting purposes, and one MS

(UK) uses it for a different listing system.



Absence of harmful tax measures

: this criterion is used by 12 MS (BE, BG, CY,

EE, EL, HR, IT, LT, LV, PL, PT, SE), but not all for blacklisting purposes. All 12

MS use the "absence of harmful tax measures" criterion in combination with the

"transparency and exchange of information" criterion.

Additional or different criteria



Tax level: 8 MS (BE, BG, EL, FI, LT, LV, PT, SI) report using the level of

taxation for blacklisting purposes

. Out of these 8 MS, 6 (BE, BG, EL, LT, LV,

PT) combine it with the two criteria of the Recommendation, and 2 MS (FI and

Type of criterion recommended in Commission Recommendation C(2012) 8805 point 3a

Out of these, 3 MS have no list system (CY, CZ, IE), one use it for white list (SE) and one has another

listing system (UK)

Type of criterion recommended in Commission Recommendation C(2012) 8805 point 3b

4 other MS (AT, CY, HU, SE) refer to the level of taxation for other purposes than blacklisting.

kom (2015) 0302 - Ingen titel



SI) use the level of taxation as sole criterion. The tax rate/level threshold varies

from 4%

(BG) to 15%

(FI); it is expressed either as a fixed percentage or by

reference to the tax rate of the MS concerned.

Other criteria: existence of a double tax convention, an exchange of information

agreement or a convention on mutual assistance (13 MS: BG, EE, EL, ES, FI,

FR, HR, HU, LV, PL, SI, SK, UK), non-EU or non-EEA countries (8 MS: BG,

CZ, EL, FI, HU, LV, SI, SK), artificiality of transactions (RO), automatic

exchange of information and least developed countries (UK). These criteria are

used for blacklisting, whitelisting or for other purposes.

2.1.2. Discussions in the Platform



Transparency and exchange of information

(TEOI). Platform members agreed that

the work of the Global Forum should form part of any assessment of the Transparency

and Exchange of Information criteria under the Recommendation, and Platform

members foresee no major practical or administrative difficulties in applying this

approach in practice. Several MS take the Global Forum rating into account,

complemented by their own evaluation based on their experience of effective

exchange of Information with the jurisdiction concerned.

Harmful tax measures

Platform members recognised the usefulness of this criterion;

they agreed that the Code criteria and existing Code assessments should be used as a

benchmark for the purpose of applying the fair tax competition criterion of the

Recommendation. This is also used in relation to discussions with some third

countries (CH, LI). However, assessing this criterion appears onerous in terms of

workload, especially for small Member States, and some suggested that this could be

solved by providing or sharing reliable information.

Possible additional criteria

Platform members agreed that existing intra-EU tax standards and regulations

are important as benchmarks prior to promoting tax standards and regulations

towards third countries, and reviewing internal standards is needed to raising

the bar in the context of recent international developments;

Various views were expressed on the tax rate/effective level of taxation

criterion used by some Member States. Some consider it should not be taken

into account in relation to third countries since it is not currently applied within

the EU, some others suggest that this should be further considered, in the light

of recent OECD and EU developments.



40% of BG corporate tax rate (10%)= 4%

3/4 of FI corporate tax rate (20%) = 15%. The FI domestic tax law includes a regime on special

controlled foreign corporations (CFC) by virtue of which a “grey list” is established over countries, in

which the tax burden is deemed to significantly differ from the corporate tax paid by Finnish

companies. The level of tax actually paid in a non-EU tax treaty country is deemed substantially lower

as compared to the corresponding Finnish tax on the income if the foreign tax is,

on average,

lower

than 3/4 of the corresponding Finnish tax. However, an entity in a grey list country cannot be

considered to be a CFC as long as the entity itself pays taxes which are 3/5 or more of the taxes that

would have been paid in Finland.

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2.1.3. Possible conclusions on criteria

For comments by Platform members



Recommendation C(2012) 8805 contains 2 sets of criteria. Ten MS (out of 18)

already comply with these two criteria, since for listing purposes they use the

presence of harmful tax measures criterion in combination with the one on

transparency and exchange of information. The other MS apply other criteria like

the tax level, either alone, or in combination with one or both criteria of the

Recommendation.

The 2 criteria provided by the Recommendation (transparency and exchange of

information; fair tax competition) are the most relevant for assessing the good

governance criteria. They may be supplemented by criteria on effective

cooperation (i.e bilateral/multilateral instruments).

The Commission services might also suggest to give further consideration, in the

light of OECD and EU developments, to the relevance of other criteria, such as

the level of taxation, in particular towards those jurisdictions having no taxation

at all. In addition, since the adoption of the Recommendation, automatic

exchange of information has become the norm, it would be logical to use this also

as a criterion.



4.2

Lists

2.2.1. Factual elements

Information based on document Platform/11/2014/EN

Out of 28 replies received, 18 MS have a (black/white/other) listing system, 10 MS

having no list at all.

ONTENT OF LISTS

1 - Blacklisted jurisdictions

The number of black listed jurisdictions ranges from 0 in DE to 85 in PT. The use

of the criteria mentioned under point 1.1

supra

gives the following results.



Transparency and exchange of information

The 13 MS (BE, BG, DE, EE, EL, ES, FR, HR, IT, LT, LV, PL, PT)) using this

criterion (solely or in combination with others) list between 0 (DE) and 85(PT)

jurisdictions (see

table 1).

Only DE uses solely this criterion.



Harmful tax measures

The 10 MS (BE, BG, EE, EL, HR, IT, LT, LV, PL, PT) using this criterion in

combination with the first one result in listing between 24 (BE) and 85 (PT)

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jurisdictions. However these are not always the same (see

table 2).

Amongst the 4 MS (EE, HR, IT, PL) using only the 2 criteria of the

Recommendation (see

table 3),

there are some discrepancies: 31 jurisdictions are

blacklisted by these 4 MS, 7 by 3 of them, 20 jurisdictions are blacklisted by 2 MS,

and 27 by only one (not always the same MS). In total, EE has blacklisted 55

jurisdictions, HR 50, IT 68 and PL 39. If we compare the 4 MS (EE, HR, IT, PL)

that use only both criteria from the Recommendation, to the 2 MS (FI, SI) using

the tax level criterion only, the first group (Recommendation criteria) lists between

39 (PL) and 68 (IT) jurisdictions, while FI and SI list 15 and 19 jurisdictions

respectively. 10 jurisdictions blacklisted by FI and/or SI had not been blacklisted

by any of the 4 MS using both Recommendation criteria only.



Level of taxation

The 6 MS (BE, BG, EL, LT, LV, PT) using this criterion in combination with those

of the Recommendation result in listing together 10 jurisdictions (see

table 4).

However, 22 jurisdictions are listed by 5 of them, 12 jurisdictions are listed

together by 4 of them, 13 by 3 MS, 18 jurisdictions are blacklisted by 2 MS, and 41

by only one (not always the same MS). In total, BE has blacklisted 24 jurisdictions,

BG 45, EL 58, LT 60, LV 62 and PT 85.

The 2 MS (FI, SI) using solely the level of taxation for blacklisting purposes list 15

and 19 jurisdictions (see

table 5).

These various points show a wide range of differences between MS' evaluations

when using a comparable set of criteria.

2 - White lists

There are 5 MS having whitelists (IT, EE, LT, SE, SK).

However, the IT is used for withholding tax exemptions on interest payments on

bonds issued by the state banks or quoted companies and not for anti-avoidance

issues. It is therefore not suggested to be considered for the purpose of this process.

Estonia (EE) has a white list of countries not considered as low tax jurisdictions as

well as a blacklist. They are both used for CFC and non-deductibility of cost

purposes. It is worth to note that EE white lists countries such as Bahrain

(blacklisted by 8 MS), FYROM (blacklisted by 2 MS), the Isle of Man (blacklisted

by 9 MS), Jersey (blacklisted by 6 MS), Singapore (blacklisted by 4 MS),

Switzerland (blacklisted by 2 MS) or the United Arab Emirates (blacklisted by 8

MS).

SE has reported having a white list linked to CFC rules: in case a CFC is

established in a white listed country, it is not necessary for the tax administration to

perform the CFC-rules tests.

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3 - Other listing system

The UK categories for offshore penalties considers the efficiency with which tax

information is received from third countries.

Category 1 includes those countries

from which information is received automatically, Category 2 includes those from

which information is received on request whilst Category 3 includes countries

which are not compliant with EOI on Request as well as those where exchange of

information arrangements are not in place.

ANAGEMENT OF

MS'

LISTS



The 18 MS having lists indicated they were publicly available and provided

links to their websites;

Very few MS have a periodical review of their list, which takes place each

year (EL, FR) or every 2 years (BE). The other 15 MS review their lists on

an ad hoc basis. However, several updating issues have been identified.

2.2.2. Discussion in the Platform



Non-MS members were in favour of a single EU blacklist given the difficulty in

their view to achieve coherence between 28 MS blacklists, and in order to have a

level playing field for all companies in all MS. One MS suggested that the

Commission should assess the compatibility of Member States lists with EU law.

However, Platform members welcomed the comparison of various lists from MS

and the Commission services' suggestion to publish a consolidated version on the

Platform website. They also recognised the need to improve consistency of

assessments made under similar criteria.

On transparency, Platform members recognised the usefulness of keeping lists up-

to-date on a regular (i.e. at least annual) basis. They noted that this could be

resource-intensive for some MS, and called for an appropriate procedure.



2.2.3. Possible conclusions

For comments by Platform members



Those MS having no listing process have not reported they are considering

adopting one.

The Commission services might suggest solutions to improve the consistency of

The UK does not consider its differentiated penalty regime to be a black list since it only applies higher

penalties to individuals who are found to have been non-compliant in their activities in particular

countries rather triggering any measures of general application (e.g. withholding taxes).

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assessments of similar criteria.

This could include sharing information on:

- effectiveness of exchange of information mechanisms with the jurisdiction

concerned, in particular for those jurisdictions not having yet passed the phase 2

review of the Global Forum;

- the presence of potentially harmful tax measures detected by MS or by the

Commission services.

Possible mechanisms could range from informal/multilateral ones (between MS

and with Commission services), or/and with some monitoring by the Platform or

by an institutionalised instance (such as an appropriate Council group).



The Commission services might also suggest that such monitoring mechanisms

could also cover the updating of MS lists, to ensure that any update from a MS

would be reflected in due time in the list consolidated for publication on the

TAXUD webpage.

4.3

Measures applied towards third countries

2.3.1. Factual elements



The Recommendation contains a series of positive and negative measures (de-

listing/listing with a reference to the Recommendation, initiation/termination of

double tax conventions, technical assistance…) that MS may apply towards third

countries, depending on whether they comply with or are committed to the minimum

standards of good governance.

Member States have not reported using two of the measures (treaty renegotiation or

incentives). They have however reported using on an individual basis a number of

other tax measures, such as non-deductibility of costs (11 MS), CFC rules (8 MS), and

measures related to withholding taxes (10 MS).

2.3.2. Discussion in the Platform



Platform members recognised the general relevance of the measures provided in the

Recommendation as a mean to convince third countries to adopt minimum standards

of good governance. However, some Platform members expressed reservations on

granting incentives to jurisdictions not yet complying with minimum requirements,

while other members stressed the need to strengthen EU assistance to developing

countries on policy making, administrative support and capacity development.

Platform members noted the variety of measures currently applied by MS, with 3 main

categories (non-deductibility of costs, CFC, withholding taxes).

Platform members recognised that the threat of being collectively blacklisted in

combination with positive measures should often suffice to convince most third

countries to comply with such standards. It was understood that practical application



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of the measures needs to be proportionate and to allow flexibility based on a case by

case assessment of both the seriousness of the non-compliance and of interests other

than tax good governance. In this respect, some Platform members expressed concerns

on the difficulty to apply on an individual basis negative measures against a big

powerful jurisdiction because of the risk of countermeasures, or that countermeasures

should not undermine progress on Automatic Exchange of Information.



The Recommendation does not require coordinated actions but some discussions in the

Platform underlined that collective/coordinated actions would be more effective than

individual actions in relation to third countries. A coordinated action could bring some

of the most problematic jurisdictions to amend certain practices.

2.3.3. Possible conclusions

For comments by Platform members



MS have not reported having taken additional actions as a follow-up to the

Recommendation. However, incidentally and as a result of their existing

rules, some MS comply

de facto

with some of the criteria and a few

measures contained in the Recommendation.

The Commission services note that, while aiming at the same goals as those

of the Recommendation, the fact that MS do not follow the same approach

leads to additional work. They should at least cooperate to convince third

countries to comply with the minimum standards of good governance in tax

matters. The lack of appetite from MS to act collectively against non-

compliant countries seems to be justified by 3 main reasons: the lack of

resources to assess third countries' tax regimes, the lack of willingness of

some MS to take action against non-compliant countries, and the wish of

MS to keep a margin of manoeuver and to decide what appropriate

measures to apply to third countries.

The Commission services note that a variety of MS measures apply to third

countries without an overall consistency in relation to the minimum

standards of good governance, and that some non-targeted third countries

operate harmful tax measures. Based on experience shared with Platform

members, the Commission services consider that limited collective action

could be sufficient to convince these third countries to comply with the

minimum of good governance. Efficiency of such collective action also

relies on its visibility.

The Commission services may therefore suggest an initiative for further

action, aiming at third countries' effective compliance with minimum

standards of good governance in tax matters (and further standards if

necessary) in their relations with EU MS. This initiative would provide for

further practical assistance on how to apply the content of the

Recommendation. For instance, the Joint Transfer Pricing Forum

successfully agrees on Codes and guidance on how to apply OECD transfer

pricing rules; the Platform could contribute in a similar way. In practical



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terms such (soft or hard law) initiative could:

Provide for an assessment mechanism that could be relied upon by

MS;

Propose that MS would promote compliance with the minimum

standards in their relationship with the third countries concerned, so

that collective action may not always be necessary;

Foresee minimum measures to be applied collectively, building on

those of the Recommendation;

Foresee that MS could individually adopt additional criteria and take

further actions towards the third countries concerned.

4.4

Conclusion

The Commission services will take into consideration the discussion held in the Platform

and written comments from Platform members when moving to the next stage of

preparing a report for consideration by the Commission.

PPLICATION OF THE

ECOMMENDATION ON

GGRESSIVE

LANNING

The purpose of the Recommendation is to better enable Member States to address

aggressive tax planning by reducing double non-taxation and ensuring a minimum level

of protection across the EU MS by the adoption of a general anti-abuse rule taking into

account the limits imposed by Union law.

The Recommendation was discussed at the Platform meetings of 16 October 2013,

6 February 2014, 10 June 2014 and 19 December 2014.

4.1

Limitation to the application of rules intended to avoid double taxation

3.1.1. Discussion in the Platform

Concerning the clause to prevent double non-taxation in double tax conventions (DTC),

some MS expressed reservations on the scope, which by being too broad in their view

could be used by other contracting parties to tax items that the MS concerned wanted to

exempt. Some suggested that this could be prevented with a more specific (tax or

jurisdiction) scope. Some members mentioned that the systematic inclusion of this clause

would require the renegotiation of all Double Tax Conventions (DTC).

One MS indicated it would introduce a subject to tax clause only on a case by case basis.

Several MS and non-MS members mentioned the parallel OECD work anti-abuse rules in

the DTC; and suggested to wait for the outcome of the OECD work before taking a final

stance.

It seems from the discussion that no MS intends to include the recommended clause in a

foreseeable future.

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Several members support the CCCTB as part of the solution.

3.1.2. Possible conclusions

For comments by Platform members



Since no MS seems to support the right to tax clause as included in the

Recommendation, the Commission services intend to report that no MS has

decided to follow-up the Recommendation on this point, and that there is a

need to find other ways of treating this issue, having due regard to the

outcome of the OECD on BEPS (notably Actions 6 (Prevent Treaty Abuse)

and 15 (Multilateral Instrument text)).

General Anti Abuse Rule (GAAR)

4.2

A GAAR is a powerful means of protection against novel tax planning schemes and the

common GAAR proposed in the Commission Recommendation takes account of primary

and secondary EU legislation and European Court of Justice (ECJ) rulings.

The Platform agreed to collect more information from MS concerning the GAARs

currently operated at national level. The replies received from MS on the questionnaire

have been summarised in the Discussion Paper

Platform/12/2014/EN

for the 19 December

2014 meeting. It contains useful information on MS having (or not) a GAAR, when

GAARs have been introduced and amended and on the operation of the various GAARs.

A significant new development is the agreement at ECOFIN on 9 December 2014, on a

common anti-abuse rule in the parent-subsidiary directive (PSD).

3.2.1. Factual elements

Information based on document Platform/12/2014/EN



6 MS

have indicated to support the Commission Recommendation concerning

the GAAR. Three of them –

EL, RO

and

declare having introduced a

GAAR that has been drafted following the Recommendation on Aggressive Tax

Planning. The other three – HR, IT and PL – are still in the process of following

up on the Recommendation



replied to have the intention to review their existing GAAR, using the

template of the Recommendation.

IT,

the Government has been officially charged by the Parliament to

proceed with a general fiscal reform, which will be comprehensive of new

anti-avoidance rule. Article 5 of the law, specifies that this new rule must be

consistent with the EC Recommendation n. 2012/772/UE of 6th December

2012.

has launched a legislative initiative to introduce a GAAR in 2016 that



This concerns EL, HR, IT, PL, RO and SK.

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will take into account the Recommendation.



4 MS are as of yet undecided

. They report to still consider the question of

implementing the Commission Recommendation. Some explicitly state that

more clarity would be needed on the working of the Commission

Recommendation and how that interacts with international developments.



The remaining 18 MS report not to see the added value of introducing or

revising their GAAR on the basis of the 2012 Commission Recommendation

Most of these MS consider that the GAAR or GAAR-equivalent provision that

they currently have works well and/or is very similar in effect to the GAAR

proposed in the Commission Recommendation. Some, such as IE, express

concerns over increased uncertainty in relation to the effectiveness of their tried

and tested provision if it were to be revised. Others, such as LT, are concerned

that MS could interpret the Commission Recommendation differently in the

absence of EU guidance.

3.2.2. Discussion in the Platform

Platform members support improving anti abuse rules support although it is important to

leave some flexibility to MS.

Several Platform members expressed concerns over the GAAR recommended by the

Commission, amongst others: on the manageability of a GAAR by the tax administrations

(complex to use) and by taxpayers (legal uncertainty). Some guidance would be needed on

the application of a GAAR. It was also observed that even if all MS adopt the same

GAAR, different interpretations by different courts may still occur.

3.2.3. Possible conclusions

For comments by Platform members



The follow-up of the recommended GAAR has to be seen in the light of the

agreement on the Parent-Subsidiary directive anti-abuse rule (AAR) and as a

minimum level of protection that should be adopted by all MS.

The Commission services intend to report that MS not having taken additional action

after the Recommendation consider that they already have anti-abuse rules that meet

the objectives of the Commission Recommendation in tackling Aggressive Tax

Planning. This might lead to further consideration and assessment on possible action

to be taken.

_________________________

This concerns DK, FI, LU and SI.

This concerns AT, BE, BG, CY, CZ, DE, EE, ES, FR, HU, IE, LT, LV, MT, NL, PT, SE and the UK.

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NNEX

ELATIONS

ACTIONS AND

BEPS

INITIATIVE

BEPS action

Areas for EU action

1. CCCTB: A Holistic Solution to Profit Shifting

Relaunching the CCCTB as a means to address the

current challenges in corporate taxation. A

mandatory CCCTB would include rules in relation

to Controlled Foreign Companies (CFC), interest

deductibility, and permanent establishment (PE).

In the absence of consolidation (first step), the

proposal would also include transfer pricing rules.

Action 3 on Strengthening CFC Rules

Action 4 on Limiting Base Erosion via Interest

Deductions and Other Financial Payments

[Action 6 on Preventing Treaty Abuse]

Action 7 on Preventing the Artificial Avoidance

of PE Status

Action 8-10 on Assuring that Transfer Pricing

Outcomes are in line with Value Creation

Action 1 on Addressing the Tax Challenges of

the Digital Economy is covered by the Action

Plan as a whole.

2. Ensuring Effective Taxation Where Profits are Generated.

2.1 Bringing taxation closer to where profits are

generated and ensuring effective taxation of

profits. Work must continue on elements in the

common base which are linked to the OECD BEPS

project. This would include adjusting PE rules so

that companies cannot artificially avoid having a

taxation presence in Member States in which

they have economic activity, or improving the

CFC rules. The Commission will also consider how

to ensure that EU corporate tax legislation aimed

at preventing double taxation (i.e. the Interest

and Royalties Directive and Parent-Subsidiary

Directive) does not inadvertently lead to double

non-taxation.

Action 7 on Preventing the Artificial Avoidance

of PE Status

Action 3 on Strengthening CFC Rules

Action 2 on Neutralising the Effects of Hybrid

Mismatch Arrangements.

2.2. Improving the Transfer Pricing framework in

Action 8-10 on Assuring that Transfer Pricing

the EU.

Outcomes are in line with Value Creation.

2.3. Linking Preferential Regimes to Where Value Action 5 on Countering Harmful Tax Practices.

is Generated (modified nexus approach as agreed The first work stream of Action 5 relates to

by the Code of Conduct Group). The Commission the review of patent box regimes.

will continue to provide guidance to Member

States on how to implement patent box regimes

in line with the new approach, and carefully

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monitor implementation.

3. Additional Measures for a Better Tax Environment for Business.

3.1. Enabling Cross Border Loss Offset.

3.2. Improving Double Taxation Dispute

Resolution Mechanisms. The Commission will

propose improvements to the current

mechanisms to resolve double taxation disputes

in the EU.

4. Further Progress on Tax Transparency.

Beyond the measures already proposed by the

March Transparency Package, the Commission

has identified further measures to boost

transparency, both in relation to the EU and in

relation to third countries.

Action 5 on Countering Harmful Tax Practices.

The second workstream of Action 5 relates to

spontaneous exchange of information on tax

rulings.

No related BEPS action

Action 14 on Making Dispute Resolution

Mechanisms more Effective addresses the

obstacles that prevent countries from

resolving dispute through the Mutually

Agreed Procedure (MAP).

4.1. Ensuring a more Common Approach to Third Action 5 on Countering Harmful Tax Practices.

Country Non Cooperative Tax Jurisdictions. Action 5 includes a strategy to expand

Beyond the work already done by the Platform participation to non-OECD countries.

on Good Governance, further work in screening

third countries for compliance with tax good

governance standards is also necessary. The Code

of Conduct Group would be the most appropriate

forum to do this.

4.2. Proceeding with work on corporate tax

transparency, including country-by-country

reporting options. This could include making a

limited set of tax information of multinational

companies publicly accessible.

5. EU Tools for Coordination.

5.1. Improving Member States' Coordination on

Tax Audits

5.2. Reforming the Code of Conduct for Business

Taxation and Platform on Tax Good Governance

No BEPS related action.

Action 13 on Re-examining Transfer Pricing

Documentation. However, the OECD reporting

template is only intended for tax authorities

(and not for public disclosure).

No BEPS related action.

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