Considerations on COM(2024)497 - Amendment of Directive 2011/16/EU on administrative cooperation in the field of taxation - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2024)497 - Amendment of Directive 2011/16/EU on administrative cooperation in the field of taxation. |
|---|---|
| document | COM(2024)497 |
| date | October 28, 2024 |
(2) Article 44 of the Council Directive (EU) 2022/2523 already sets the rules for filing Top-up tax information returns and outlines broadly the information categories to be reported by the multinational enterprises (MNEs) and large-scale domestic groups (LSDGs) covered by that Directive as the tax administrations need those Top-up tax information returns to perform an appropriate risk assessment, to evaluate the correctness of the tax liability and to monitor whether the MNEs and LSDGs correctly apply the rules set out in Council Directive (EU) 2022/2523.
(3) It is therefore appropriate to amend Council Directive 2011/16/EU9 to set up new rules on automatic exchange of information to facilitate the exchange of information with respect to the Top-up tax information return and thereby provide the framework for the operational implementation of Article 44 of Council Directive (EU) 2022/2523. Those rules should be in line with the OECD/G20 IF agreement and Model Rules.
(4) Those rules should enable the central filing of the Top-up tax information return as opposed to the local filing of that return in each jurisdiction that is implementing the OECD/G20 IF agreement regarding the minimum taxation of MNE (implementing jurisdictions)10. Tax administrations of each relevant implementing jurisdiction should receive the necessary information under the standard information return.
(5) Member States should take the necessary measures to require the reporting entities of an MNE that is located within the EU to file the Top-up tax information return within the deadlines provided for in Articles 44(7), and Article 51, of Council Directive (EU) 2022/2523.
(6) When a Member State receives Top-up tax information returns from the reporting entities, they should communicate to the Member States and receiving jurisdictions, no later than three months after receipt, the relevant specific parts of those Top-up tax information returns in accordance with the dissemination approach approved by the OECD/G20 IF. In the first year of operation, the deadline for communication of the reports should be prolonged to six months after the receipt to accommodate any delays in the new system of exchange.
(7) The Member State of the ultimate parent entity of the MNE should receive the full Top-up tax information return. All Member States that have implemented a qualified IIR or a qualified UTPR or both (Implementing Member States) should be provided with the full General section of the Top-up tax information return and QDTT-only Member States, where constituent entities of the MNE are located, should be provided with the relevant parts of the General section of the Top-up tax information return. Jurisdictional sections should be provided to the Member States with taxing rights under Council Directive (EU) 2022/2523.
(8) The communication of information to competent authorities of other Member States should take place using the standard computerised form developed by the Commission by means of implementing acts.
(9) The competent authorities should notify each other when there is reason to believe that the information included in a Top-up tax information return requires correcting. Such corrections should be exchanged without undue delay with all competent authorities for which such information is subject to exchange.
(10) If a competent authority does not receive an exchange that was expected pursuant to a notification from an MNE, it should notify the competent authority that was expected to send the information of the missing exchange. The latter competent authority should without delay determine the reason for not exchanging the relevant information and should inform the competent authority that notified the missing exchange within one month, including the expected new date for the exchange. If the information is not received by the new date for exchange, it should be considered that the central filing has not taken place and the competent authority that notified the missing exchange should require the MNE’s constituent entity to file the Top-up tax information return locally.
(11) Article 50 of Council Directive (EU) 2022/2523 allows Member States in which very few groups are headquartered, to elect not to apply the IIR and UTPR for a limited period of time. Such Member States should only start applying the rules on exchange of Top-up tax information returns when the period of election under Article 50 of Council Directive (EU) 2022/2523 ends.
(12) Council Directive 2011/16/EU and Annex VII thereto, as amended by this Directive should be read together with Council Directive (EU) 2022/2523. The terms set out in Council Directive 2011/16/EU that are also found in Council Directive (EU) 2022/2523 should have the same meaning as that in the latter Directive. Furthermore, this Directive contains additional definitions necessary to reflect further international developments in the context of the exchange of information in the field of taxation.
(13) LSDGs are included in reporting requirements in Council Directive (EU) 2022/2523, and they are required to present an overview of the structure as well as tax obligations for the whole LSDG, even if the overview is relevant only to the tax administration in the Member State where it is located. In order to minimise the administrative burden for the Member State concerned and maintain the equal treatment provided for in Council Directive (EU) 2022/2523, LSDGs should submit their reports using the template set out in the Annex to this Directive.
(14) Article 44(5) of Council Directive (EU) 2022/2523 provides for the filing of the Top-up tax information return in a standard template. The OECD/G20 IF developed such a standard template11, which contains the information a tax administration needs in order to perform an appropriate risk assessment and to evaluate the correctness of a constituent entity’s top-up tax liability. The OECD/G20 IF also developed instructions12 for the filing the standard template, which will be a useful source of interpretation for the MNEs to file the Top-up tax information return. It is therefore appropriate to set out, in a new Annex to Council Directive 2011/16/EU (Annex VII), a standard form, in line with that developed by the OECD/G20 IF, for the filing of the Top-up tax information return under Council Directive 2011/16/EU, as amended by this Directive and Council Directive (EU) 2022/2523.
(15) The standard template for the Top-up tax information return provided for in this Directive ensures that the information and tax calculations that an MNE is required to file under the Top-up tax information return are sufficiently comprehensive to allow tax administrations to perform an appropriate risk assessment and to evaluate the correctness of a constituent entity’s tax liability under Council Directive (EU) 2022/2523. At the same time, it is sought to avoid imposing unnecessary information collection, computation and reporting requirements on MNEs or exposing taxpayers to multiple, uncoordinated requests for further information in each implementing jurisdiction. A standardised information return does not preclude a tax administration from requesting necessary supporting information in follow-up requests to verify compliance with Council Directive (EU) 2022/2523 under their national law. However, jurisdictions should generally refrain from requiring the reporting of additional data points beyond the Top-up tax information return as part of their routine tax return and payment requirements and any such information should relate, for instance, to liability, timing and method of payment or identification of the taxpayer and contact details, rather than the calculation of a constituent entity’s top-up tax liability.
(16) In order to ensure that the standard template for Top-up tax information return is kept in line with international developments, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission to amend Section III of Annex VII to Council Directive 2011/16/EU, where necessary. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement on Better Law-Making of 13 April 201613. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.
(17) Since the objective of this Directive, namely to provide the framework for the operational implementation of Council Directive (EU) 2022/2523 on the basis of the common approach contained in the OECD Model Rules, cannot be sufficiently achieved by each Member State acting alone, because independent action by Member States would risk fragmenting the internal market, but can rather, given the scale of the global minimum tax reform and the critical importance of adopting solutions that function for the internal market as a whole, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.
(18) Directive 2011/16/EU should therefore be amended accordingly.