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(BRUSSELS) – EU finance ministers agreed Tuesday on a new system intended to help resolve disputes which arise between Member States from the interpretation of agreements on the elimination of double taxation.
“This directive is an important part of our plan for strengthening tax certainty and improving the business environment in Europe”, said Malta’s finance minister Edward Scicluna, for the EU presidency.
Situations where different Member States tax the same income or capital twice can create serious obstacles to doing business across borders. They create an excessive tax burden, can cause economic distortions and have a negative impact on cross-border investment.
The draft directive requires dispute resolution mechanisms to be mandatory and binding, with clear time limits and an obligation to reach results. It thereby sets out to secure a tax environment where compliance costs for businesses are reduced to a minimum.
The agreement was welcomed by Commissioner Pierre Moscovici: “Today’s agreement extends the benefits of dispute resolution to all businesses and individuals and will ensure that taxpayers can benefit from a more reasonable timeframe for their cross-border tax problems to be sorted out,” he said. “By agreeing to a mandatory and binding dispute resolution mechanism, Member States have taken heed of the fully-justified calls by business and individuals to have tax certainty in the EU.”
The text allows for a ‘mutual agreement procedure’ to be initiated by the taxpayer, under which member states must reach an agreement within two years. If the procedure fails, an arbitration procedure is launched to resolve the dispute within specified timelines. For this, an advisory panel of three to five independent arbitrators is appointed together with up to two representatives of each member state. The panel (‘advisory commission’) issues an opinion for eliminating the double taxation in the disputed case, which is binding on the member states involved unless they agree on an alternative solution.
The Council endorsed a compromise reached on the following issues:
- scope of the directive, i.e. the types of disputes that should be covered. The Council agreed on a broad scope but with the possibility, on a case-by-case basis, of excluding disputes that do not involve double taxation;
- ‘independent persons of standing’: criteria to ensure the independence of those appointed to a pool of independent arbitrators. It was agreed that arbitrators must not be employees of tax advice companies or have given tax advice on a professional basis. Unless agreed otherwise, the panel chair must be a judge;
- standing committee: the possibility of setting up a permanent structure to deal with dispute resolution cases if member states so agree.
Member States now have until 30 June 2019 to transpose the directive into national laws and regulations. It will apply to complaints submitted after that date on questions relating to the tax year starting on or after 1 January 2018. The Member States may however agree to apply the directive to complaints related to earlier tax years.
May 2017 draft directive on the resolution of double taxation disputes
