Clamping down on corporate tax avoidance: Council adopts anti-abuse clause
The Council amended the EU's parent-subsidiary directive, adding a binding anti-abuse clause to prevent tax avoidance and aggressive tax planning by corporate groups.
The aim is to stop the parent-subsidiary directive from being misused for the purposes of tax avoidance, and to achieve greater consistency in its application in different member states. The anti-abuse clause will prevent member states from granting the benefits of the directive to arrangements that are not "genuine", i.e. that have been put into place to obtain a tax advantage without reflecting economic reality.
The clause is formulated as a "de minimis" rule, meaning that member states can apply stricter national rules, as long as they meet minimum EU requirements.
Two amendments to the directive
The parent-subsidiary directive (2011/96/EU), adopted in November 2011, is intended to ensure that profits made by cross-border groups are not taxed twice. It requires member states to exempt from taxation profits received by parent companies from their subsidiaries in other member states.
In November 2013, the Commission proposed to amend the directive with the twofold objective of tackling hybrid loan mismatches and introducing a general anti-abuse rule.
In May 2014, the Council decided to split the proposal and to address these two issues separately. In July 2014, it adopted as a first step provisions to prevent corporate groups from using hybrid loan arrangements to benefit from double-non taxation under the directive.
Meanwhile work continued on the anti-abuse clause, and agreement was reached in December 2014.
Deadline for the member states
Member states will have until 31 December 2015 to introduce an anti-abuse rule into national law. The same deadline applies for transposition of the July 2014 amendments to tackle hybrid loan mismatches.
Work in the OECD
The issue of corporate tax avoidance is a high political priority both at EU level and internationally. The OECD's work on base erosion and profit shifting has been endorsed as the way forward at recent G20 and G8 meetings.
In December 2014, the European Council highlighted "an urgent need to advance efforts in the fight against tax avoidance and aggressive tax planning, both at the global and EU levels".