The Swiss Federal Council initiated a consultation on automatic exchange of financial account information with twelve more partner states
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During its meeting of December 3, 2021 the Swiss Federal Council initiated a consultation on the introduction of the automatic exchange of financial account information (AEOI) with twelve additional states and territories (Ecuador, Georgia, Jamaica, Jordan, Kenya, Macedonia, Moldova, Morocco, New Caledonia, Thailand, Uganda and Ukraine). The consultation will last until 18 March 2022. The Federal Council plans to submit the dispatch on the introduction of the AEOI with these partner states to Parliament in autumn/winter 2022.
EU – December infringements package: Key decisions (Spain, Belgium, Luxembourg, Sweden, Germany and Cyprus)
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On December 2, 2021 the European Commission published the key decisions of its December infringements package. With respect to taxes and customs this time the key decisions include one letter of formal notice (sent to Spain) and 5 reasoned opinions (sent to Spain, Belgium, Luxembourg, Sweden, Germany and Cyprus). This time the key decisions regard a variety of matters including: the taxation of non-resident taxpayers' capital gains, the transposition of CFC legislation of the EU ATAD Directive, the transposition of the non-deductibility of interest payments rule of the EU ATAD Directive, the taxation of dividends to non-resident public pension institutions, the automated exchange with other Member States of certain information related to the application of VAT legislation and the transposition of the new VAT e-commerce rules.
The Singaporean-Brazilian Agreement for the Avoidance of Double Taxation has entered into force
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On December 1, 2021 the Inland Revenue Authority of Singapore issued a press release announcing that the Agreement between the Republic of Singapore and the Federative Republic of Brazil for the Elimination of Double Taxation with respect to Taxes on Income and the Prevention of Tax Evasion and Avoidance (“DTA”), signed on May 7, 2018, entered into force on December 1, 2021.
EU – Some highlights of the new Directive regarding the Public country-by-country reporting of income tax information that was published today in the Official Journal of the European Union
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On December 1, 2021, DIRECTIVE (EU) 2021/2101 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 24 November 2021 amending Directive 2013/34/EU as regards disclosure of income tax information by certain undertakings and branches was published in the Official Journal of the European Union. The Directive will This Directive shall enter into force on December 21, 2021. Based on Article 2, Paragraph 1 of the Directive Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by June 22, 2023. Based on Article 48g that is to be inserted in Directive 2013/34/EU ("Commencement date for reporting on income tax information") Member States shall ensure that laws, regulations and administrative provisions transposing Articles 48a to 48f apply, at the latest, from the commencement date of the first financial year starting on or after June 22, 2024.
CJEU judgment in Case C-437/19, État luxembourgeois (Informations sur un groupe de contribuables) (Administrative cooperation in the field of taxation – ‘Foreseeable relevance’ of the requested information)
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On November 25, 2021, on the website of the Court of Justice of the European Union (CJEU) the judgment of the Court in Case C- 437/19 État luxembourgeois versus L (ECLI:EU:C:2021:953), was published.
OECD - The Global Forum releases four new peer review reports on the exchange of information on request for Côte d’Ivoire, Kenya, Moldova and Tanzania
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On November 25, 2021, the Global Forum on Transparency and Exchange of Information for Tax Purposes published a new peer review report on transparency and exchange of information on request (EOIR) for Kenya, and three first-time reviews for Côte d’Ivoire, Moldova and Tanzania.
CJEU: “Tax authorities cannot refuse the right to deduct input VAT only by reason that to their opinion the price paid is excessive/disproportionatal”
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On November 25, 2021, on the website of the Court of Justice of the European Union (CJEU) the judgment of the Court in Case C- 334/20 Amper Metal Kft. versus Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága ((Resources Directorate of the National Tax and Customs Authority, Hungary) (ECLI:EU:C:2021:961), was published.
The European Commission concludes that the proposed Swedish risk tax on credit institutions does not constitute State aid
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On October 28, 2021 the Swedish Government submitted a bill proposing the introduction of a so-called tax risk. Under the proposal a tax liability will arise in the event of a “simplified indebtedness” within the taxpayer group (attributable to its operations in Sweden) which, as per the beginning of the financial year, is equal to or greater than SEK 150 billion (excluding intra-group indebtedness and provisions).
Report of the Dutch Conduit Companies Committee titled: “The road to acceptable conduit activities” published
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On November 22, 2021, a report of the Dutch Conduit Companies Committee (The Committee Ter Haar) was released. At the request of the House of Representatives the Committee has spent six months investigating the activities of conduit companies in the Netherlands, also sometimes referred to as letterbox companies.
In the report, the Committee discusses the phenomenon of conduit companies in a broad sense, including the nature, the scope and the cause of this phenomenon. Particular attention is paid to three main themes:
1. What is the extent of conduit activities and their contribution to the Dutch economy?
2. What are the tax motives for conduit activities in the Netherlands?
3. What are the non-tax motives for conduit activities in the Netherlands?
4. What is the relationship between money laundering and tax avoidance?
5. What is the effect of (recent) international developments?
The Court of Appeal of the Hague judges on whether, and if so, how the so-called SPF-criterion for attributing assets to a PE is to be applied in case a fiscal unity exists for DCIT-purposes
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On November 19, 2021, on the website of the Dutch courts (De Rechtspraak) a very interesting judgment of the Court of Appeal of The Hague in the Joined Cases with case numbers: BK-19/00754 upto and including BK-19/00758, ECLI:NL:GHDHA:2021:2143 was published. The judgment already dates from October 27, 2021, but it was only published on November 19, 2021.
In the underlying case the taxpayer and the tax authorities a.o. are disputing whether or not a currency exchange gain that the ‘taxpayer’ realized on so-called Forwards Swap Agreements is to be attributed to the foreign permanent establishment of the ‘taxpayer’. We say ‘taxpayer’ because the permanent establishment is actually the permanent establishment of a subsidiary that is included in the fiscal unity of which the taxpayer is the parent entity.
Shell’s intention to move its tax residency to the UK – What has happened since then?
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On November 15, 2021, Shell announced that it seeks approval shareholder approval to simplify its corporate structure and that it intends to move its tax residency to the UK. So what has happened since then?
CJEU judgment in Case C-358/20, Promexor Trade, published (VAT – Revocation of the VAT identification of a taxable person – Refusal of the right of deduction)
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On November 18, 2021, on the website of the Court of Justice of the European Union (CJEU) the judgment of the Court in Case C- 358/20 Promexor Trade SRL versus Direcția Generală a Finanțelor Publice Cluj – Administrația Județeană a Finanțelor Publice Bihor (ECLI:EU:C:2021:936), was published.
The OECD’s Global Forum on Transparency and Exchange of Information for Tax Purposes launches a Women leaders in tax transparency programme
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On November 17, 2021 the OECD’s Global Forum on Transparency and Exchange of Information for Tax Purposes launched the Women leaders in tax transparency programme. The programme which aims at reinforcing gender equality in tax administrations.
Shell’s intention to move its tax residency to the UK seems to lead to the Dutch Government franticly trying to abolish the Dutch dividend withholding tax ASAP
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Earlier today we reported that Shell is considering moving its tax residency from the Netherlands to the UK. (See our article titled: How is it possible that the Dutch Government is surprised by Royal Dutch Shell’s announcement that it intends to move its tax residency to the UK?) A voting on this matter will take place during Shell’s General Shareholders Meeting, which is to be held on December 10, 2021. Apparently this consideration has led to panic in the Dutch (caretaker) cabinet.
How is it possible that the Dutch Government is surprised by Royal Dutch Shell’s announcement that it intends to move its tax residency to the UK?
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On November 15, 2021 Royal Dutch Shell issued a press release announcing that it during its General Shareholders Meeting of December 10, 2021 Royal Dutch Shell seeks shareholder approval to change its Articles of Association to allow the simplification of the company’s structure.
De staatssecretaris heeft antwoorden op schriftelijke kamervragen over de Fiche Belastingheffing van ondernemingen in de 21e eeuw naar de Tweede Kamer gestuurd
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Op 12 November 2021 heeft de staatssecretaris van Financiën antwoorden op vragen gesteld in een schriftelijk overleg (VSO) over de Fiche Belastingheffing van ondernemingen in de 21e eeuw van de werkgroep Beoordeling Nieuwe Commissievoorstellen (BNC) aan de Tweede Kamer gestuurd. Zowel de vragen als de antwoorden geven een interessante inkijk in hoe de verschillende politieke partijen over de toekomst van de belastingheffing van ondernemingen in de 21e eeuw denken.
European Parliaments adopts new public country-by-country reporting rules
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On November 11, 2021 the European Parliament adopted a legislative resolution of on the Council position at first reading with a view to the adoption of a directive of the European Parliament and of the Council amending Directive 2013/34/EU as regards disclosure of income tax information by certain undertakings and branches (09722/1/2021 – C9-0371/2021 – 2016/0107(COD)). As a result of this adoption multinationals and their subsidiaries with annual revenues over €750 million - and which are active in more than one EU country - will now have to publish the amount of tax they pay in each member state. This information will also need to be made publically available on the internet, using a common template and in a machine-readable format.
The European Commission published the key decisions of its October infringements package
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On November 12, 2021 the European Commission published the key decisions regarding its October infringements package. The key decisions regarding the Taxation and Customs Union include a.o.:
· Letters of formal notice sent to Denmark, Croatia and Lithuania in which the Commission calls on Denmark, Croatia and Lithuania to explain how they transposed the VAT e-commerce package into national law; and
· A letter of formal notice sent to Spain in which the Commission request Spain to allow the deduction of directly related expenses when calculating withholding tax on cross-border royalty payments.
Gerechtshof ’s-Hertogenbosch: “De situaties waarin een afgegeven beschikking fiscale eenheid met terugwerkende kracht kan worden ingetrokken of herzien zijn zeer beperkt”
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Op 11 november 2021 is op de website van De Rechtspraak een zeer interessante uitspraak van het Gerechtshof ’s-Hertogenbosch gepubliceerd. Het betreft de uitspraak in Zaaknummer: 19/00546 (ECLI:NL:GHSHE:2021:3361). De vraag waar het in de onderliggende vraag om draait is of, en zoja onder welke omstandigheden, een inspecteur een op een eerder moment afgegeven beschikking fiscale eenheid op een later moment met terugwerkende kracht kan intrekken of herzien?
