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Hungarian ad tax 'breaches EU State aid rules'

(BRUSSELS) - The Hungarian advertisement tax is in breach of EU State aid rules, the European Commission has found, because its progressive tax rates grant a selective advantage to certain companies.

The Commission found also that the tax unduly favours companies that did not make a profit in 2013 by allowing them to pay less tax.

Under Hungary's 2014 Advertisement Tax Act, companies were taxed at a rate depending on their advertisement turnover. Companies with a higher advertisement turnover were subject to significantly higher, progressive tax rates, ranging from 0% to 50%.

The Commission says its probe, which opened March 2015, showed that the progressivity of the tax rates favoured certain companies.

In a tax system based on a single rate, smaller companies would in any event pay less tax than their larger competitors, because they have a smaller advertisement turnover. However, due to the progressive rates in the 2014 Act, companies with a low advertisement turnover were liable to pay substantially less advertisement tax, even in proportion to their advertisement turnover, than companies with a higher advertisement turnover.

This gave companies with a low turnover an unfair economic advantage over competitors. Hungary has not demonstrated that the progressive tax rates were justified by the objective pursued by the advertisement tax.

The investigation also found that the provision in the 2014 Act on the possibility to deduct losses carried forward also unduly favoured certain companies. It was restricted to companies that made no profits in 2013.

The Commission says Hungary has not demonstrated that this provision was justified by the objective pursued by the advertisement tax. In particular, Hungary neither demonstrated why a company's advertisement tax liability should depend on its profitability, nor why this benefit should be available only to companies that did not make any profits in that specific year. It gave those companies an unfair economic advantage over their more efficient competitors.

On this basis, the Commission concluded that the measure was incompatible with EU State aid rules.

At the time the Commission opened the in-depth investigation, it also asked Hungary to suspend the application of the tax. Hungary suspended the tax but implemented an amended version, without notifying it to or consulting the Commission.

The amended advertisement tax, in force since July 2015, took steps in the right direction, says the Commission, but it did not fully address the concerns. The amended scheme allows companies to decide themselves whether to opt for a retroactive application of the amended scheme. It maintains progressive rates based on turnover over a smaller range (0% and 5.3%). However, there is still no objective justification for this differential treatment. Moreover, the limitations on deduction of past losses remained unchanged.

The decision of the EU executive requires Hungary to remove the unjustified discrimination between companies under the 2014 Advertisement Tax Act and/or the amended version and restore equal treatment in the market. The precise amounts of tax to be recovered from each company, if any, must now be determined by the Hungarian authorities on the basis of the methodology established in the Commission decision. Recovery can be avoided for a company, if Hungary demonstrates that the advantage received meets the criteria of the de minimis Regulation.

The Commission says it does not question Hungary's right to decide on its taxation systems or on the objective of different taxes and levies. However, it says, the tax system must comply with EU law, including State aid rules, and cannot unduly favour certain companies over others.

The non-confidential version of the decision will be made available under the case number SA.39235 in the public case register on the Commission's competition website once any confidentiality issues have been resolved. New publications of State aid decisions on the internet and in the Official Journal are listed in the State Aid/ Weekly e-News.

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