argomento: Profili europei e Internazionali - Legislazione e prassi

PAROLE CHIAVE: Direttiva ATAD - stabile organizzazione - contribuente

di Stefanie Geringer

1. Art. 1 Para. 1 of Directive no. 2016/1164/EU (“ATAD”) basically stipulates the anti-tax avoidance rules to be applied to “to all taxpayers that are subject to corporate tax in one or more Member States, including permanent establishments in one or more Member States of entities resident for tax purposes in a third country.” Similar to the traditional corporate tax directives – i.e. Directives no. 2009/133/EG (consolidated) (“Merger Directive”), 2011/96/EU (recast) (“Parent-Subsidiary Directive”), and 2011/96/EU (consolidated) (“Interest-Royalties Directive”) – the ATAD thus fundamentally resorts to taxpayers subject to corporate tax.

This basic finding notwithstanding, a comparative assessment reveals that the ATAD does not entail definitions for the basic terms “corporate tax,” “taxpayer,” or “permanent establishment.” In contrast, the traditional corporate tax directives encompass provisions and related annexes, respectively, which expressly enumerate the relevant entities and national taxes (Art. 3 in accordance with Annex I Merger Directive; Art. 2 in accordance with Annex I Parent-Subsidiary Directive; Art. 3 in accordance with Annex Interest-Royalties Directive). Moreover, both Art. 2 b) Parent-Subsidiary Directive and Art. 3 c) Interest-Royalties Directive include definitions for what is to be regarded as a “permanent establishment” for purposes of the respective directives.

Accordingly, the probable essence of these three terms in context with the ATAD will be discussed in the following in order to provide for guidelines on the interpretation and application of the respective adoption provisions.

2. Naturally, the enumerations including the relevant taxpayers for the purposes of the traditional corporate tax directives show remarkable differences regarding the type and number of entities determined by the Member States to be covered by the respective directive’s scope, depending on the concrete national tax regime (particularly, whether or under which conditions partnerships are regarded as transparent entities for income and corporate tax purposes). Apart from eventual country-specific particularities, divergencies can also be partly identified regarding the covered corporations of a single Member State. For the purposes of Italian entities the sole deviation can be found regarding mutual associations (“società di mutua assicurazione”) which are only covered by the scopes of the Merger and the Parent-Subsidiary Directives, but not of the Interest-Royalties Directive (Annex I Part A l) Merger Directive; Annex I Part A l) Parent-Subsidiary Directive; Annex h) Interest-Royalties Directive). Concerning Austrian entities the group of covered legal bodies differs to a higher extent; as a result, only stock corporations and corporations with limited tax liability (i.e., “Aktiengesellschaften” and “Gesellschaften mit beschränkter Haftung”) are subject to each of the three traditional corporate directives (Annex I Part A t) Merger Directive; Annex I Part A t) Parent-Subsidiary Directive; Annex k) Interest-Royalties Directive).

Presumably, the number of national entities covered by the scope of the ATAD is comparably higher, as Art. 1 Para. 1 leg.cit. expressly resorts to “all” taxpayers subject to the Member States’ corporate taxes. This finding proves to be valid at least for purposes of the Austrian corporate tax laws, as the ATAD applies additionally, inter alia, to associations (“Vereine”) and private foundations (“Privatstiftungen”) resident in Austria (Mechtler, Anti-BEPS-RL: Umsetzungsbedarf bei der Wegzugsbesteuerung?, Recht der Wirtschaft 2016, p. 860). In this regard, the legal status of being subject to corporation taxation in any of the EU Member States appears to be the triggering factor (Haslehner, Chapter 2 – The general scope of the ATAD and its position in the EU legal order, in A Guide to the Anti-Tax Avoidance Directive, Eds. W. Haslehner – K. Pantazatou – G. Kofler – A. Rust, Edward Elgar, Cheltenham, 2020, m.no. 2.4; Smit in European Tax Law Vol. I, Eds. B. Terra – P. Wattel, Wolters Kluwer, 7th ed., Alphen aan den Rijn, 2019, p. 493).

Art. 1 Para. 2, which was introduced by way of Directive No. 2017/952/EU (“ATAD 2”), supplements the general provision of Art. 1 Para. 1 and broadens the general personal scope of application solely for the purposes of the reverse hybrid mismatches rule (Art. 9° ATAD) to “all entities that are treated as transparent for tax purposes by a Member State.” This extension will become particularly relevant in relation to partnerships, inter alia the Italian “società semplice”, “società in nome collettivo” (s.n.c.) and “società in accomandita semplice” (s.a.s.) as well as the Austrian “Offene Gesellschaften” (OG) and “Kommanditgesellschaften” (KG).

By way of a comparative analysis, the decisive distinguishing element between the traditional corporate tax directives and the ATAD in context with the taxpayer concept can be singled out in the directive’s respective design, using either a static reference (traditional corporate tax directive) or a dynamic reference (ATAD) to national corporate tax laws. Consequently, the relevant scope of application of the ATAD can underlie constant changes, depending on respective amendments in the Member States’ corporate tax regimes (Rüsch, Article 1, in Anti Tax Avoidance Directive (ATAD) Kommentar, Eds. T. Hagemann – C. Kahlenberg, NWB, Herne, 2020, m.no. 7).

In conclusion, it can be held that – depending on the individual Member States’ corporate tax laws and the scope of entities already covered by the traditional corporate tax directives – the grade of fragmentation concerning the number of taxpayers covered by the European corporate tax law regime is further aggravated on account of the ATAD’s transposition. 

3. In addition to corporate tax subjects resident within the EU territory, the ATAD, as mentioned above, includes EU-based permanent establishments of third-country entities in its scope of application, albeit without clearly indicating which permanent establishment concept should be valid for the purposes of this directive. By way of a comparative analysis it can be found that Art. 3 c) Interest-Royalties Directive and Art. 2 b) Parent-Subsidiary Directive stipulate virtually identical definitions on permanent establishments for their respective scopes of application. Accordingly, a permanent establishment is described therein as “a fixed place of business situated in a Member State through which the business of a company of another Member State is wholly or partly carried on.” The definition incorporated in the Parent-Subsidiary Directive moreover embraces a subject-to-tax clause; thus, a relevant permanent establishment can only exist “in so far as the profits of that place of business are subject to tax in the Member State in which it is situated by virtue of the relevant bilateral tax treaty or, in the absence of such a treaty, by virtue of national law.”

The basic accordance of these two definitions stems from the fact that the formulation in the Parent-Subsidiary Directive was inspired by the wording of the Interest-Royalties Directive (Document No. 12740/03 FISC 130 of 22 Sept. 2003, p. 3). The latter directive’s understanding in turn is fundamentally rooted in Art. 5 of the OECD Model Tax Convention (MTC), whose wording is broadly mirrored in the definitions of both directives (Hristov in Introduction to European Tax Law on Direct Taxation, Eds. M. Lang et al., Linde, 6th ed., Vienna, 2020, m.no. 551). Against this background, it can be assumed that the European legislator intended to have the meaning endorsed by the OECD MTC analogously applied to Art. 3 c) Interest-Royalties Directive and Art. 2 b) Parent-Subsidiary Directive.

This assumption is further supported by reference to the CJEU’s considerations in N Luxembourg 1 and Others of 26 Feb. 2019 (Joined Cases C-115/16, C-118/16, C-119/16 und C-299/16, EU:C:2019:134). In the respective findings the Court emphasized the relevance of an interpretation in light of the OECD MTC and the commentaries relating thereto for the beneficial owner concept of the Interest-Royalties Directive which was drawn upon the respective provision in Art. 11 OECD MTC (ibid., para. 90 et seq.). In the author’s opinion, it can be estimated that the CJEU would most likely apply the same standards for the purposes of the definition for permanent establishments, considering the apparent parallels regarding the origins of these rules.

Based on this fundamental assessment, it needs to be elaborated in a next step whether the basically selfsame definitions for permanent establishments in the Parent-Subsidiary Directive and the Interest-Royalties Directive can be considered to be analogously relevant for purposes of the ATAD. In this regard, the CJEU’s notions in Océ van der Grinten (C-58/01, EU:C:2003:495) and Punch Graphix Prepress Belgium (C-371/11, EU:C:2012:647) appear to be of paramount importance: In the first case, the Court emphasized the significance of the principle of uniform interpretation of EU law in the context of the Parent-Subsidiary Directive, thus also for the purposes of EU income and corporate tax law (ibid., para. 53). In the latter, the judges found a mutual relevance of definitions embedded in the Merger Directive and the Parent-Subsidiary Directive, respectively. This notion was predominantly justified by pointing to the directives’ identical objective “to abolish restrictions, disadvantages or distortions arising in particular from the tax provisions of the Member States,” which is why, in the Court’s opinion, these directives “constitute, according to the legislature’s plan, a whole, in that they complement each other” (ibid., para. 35).

Taking into consideration that the combat against tax evasion and tax abuse, as foreseen by the ATAD, is intended to ultimately serve the purpose of “improv[ing] the functioning of the internal market and maximise the positive effects of the initiative against BEPS” (Recital 2 of the ATAD), it can be deduced that all corporate tax directive including the ATAD pursue the same objective. As a consequence, the relevant definition for permanent establishment for purposes of the Parent-Subsidiary Directive and the Interest-Royalties Directive should be analogously relevant within the scope of application of the ATAD in light of the above-cited CJEU case-law.

4. Lastly, the relevant criteria will be carved out by which the term “corporate tax” for the purposes of the ATAD could be assessed. Due to the absence of a comparable enumeration in an annex to the ATAD similar to the structure underlying the traditional corporate tax directives, a definite clarification which is prone to resolve the respective discussions will only be achieved through a CJEU decision. This basic finding notwithstanding, fundamental systemical similarities inherent to the traditional corporate tax directives could be used to provide for some guidance on what concerns a definition of the ATAD’s corporate tax concept in line with EU law. Indeed, the respective annexes broadly equal each other regarding the enumerated corporate taxes, whereas deviations can only be found for four Member States:

- Italy: “imposta sul reddito delle società” (“IRES”) in the annexes to the Merger and Parent-Subsidiary Directives versus “imposta sul reddito delle persone giuridiche” (“IRPEG”) in the annex to the Interest-Subsidiary Directive;

- Greece: “φόρος εισοδήματος νομικών ποσώπων κερδοκοπικού χαρακτήρα” in the annexes to the Merger and Parent-Subsidiary Directives versus “Φόρος εισοδήματος νομικών προσώπων” in the annex to the Interest-Subsidiary Directive;

- Romania: “impozit pe profit” in the annexes to the Merger and Parent-Subsidiary Directives versus “impozit pe profit, impozitul pe veniturile obținute din România de nerezidenți” in the annex to the Interest-Subsidiary Directive;

- Hungary: “társasági adó” in the annexes to the Merger and Parent-Subsidiary Directives versus “társasági adó, osztalékadó” in the annex to the Interest-Subsidiary Directive.

Taking a closer look at these identified differences, it can be established that they can stem from the fact that a particular national tax had been superseded by another in the meantime. This is the case regarding the aforementioned types of corporate taxes in Italy, where the IRES replaced the IRPEG in 2004, thus after the enactment of the Interest-Royalties Directive. In contrast, respective amendments to the annexes of both the Merger and the Parent-Subsidiary Directives were made by way of the amending directives Nos. 2009/13/EG and 2011/96/EU, respectively. The other country-specific discrepancies in fact cannot be considered deviations in the sense that the included provisions fundamentally contradict one another. The relevant country-specific notions in the annex to the Interest-Royalties Directive rather broaden the directive’s scope of application in comparison to the comparable annexes to the Merger and Parent-Subsidiary Directives, and thus extend them to other types of national income and corporate taxes or a larger group of taxpayers, respectively (which is the case for the purposes of the aforementioned types of corporate taxes in Greece, Romania and Hungary). However, it can still be deduced that these national taxes covered by the scopes of application of the Merger and Parent-Subsidiary Directives are also relevant for purposes of the Interest-Royalties Directive.

Against the background of these findings, there are good reasons to assume that the national taxes which are covered by the scope of each of the traditional corporate tax directives should also be encompassed by the corporate tax concept for the purposes of the ATAD. This result would again be supported by reference to the settled CJEU case-law on the principle of uniform interpretation of EU law, which is to be regarded as paramount for as long as the respective legal act does not expressly resort to the law of the Member States for the purpose of determining its meaning and scope (starting with Case 327/82 Ekro EU:C:1984:11, para. 11, see also the respective statements above).

5. To summarize, it was found that the ATAD’s taxpayer concept were to be defined in accordance with the Member States’ national corporate tax systems at the time of application. This result stems from the fact that the ATAD, in contrast to the traditional corporate tax directives, endorses a dynamic reference. Depending on the extent to which the enumerations in the corporate tax directives reflect the group of entities covered by the national corporate tax laws, a further fragmentation of the taxpayer concept for the purposes of the corporate tax directives will presumably occur.

Moreover, the application of a uniform interpretation of EU law on the basis of the definitions for permanent establishments included in the Parent-Subsidiary and the Interest-Royalties Directives revealed that the permanent establishment concept for the purposes of the ATAD should be understood and interpreted in light of Art. 5 OECD MTC.

Finally, it was shown that the carving-out of the essence of the corporate tax concept in light of the ATAD could also be conducted using the traditional corporate tax directives as guidance. As a result, a comparative analysis disclosed that the respective enumerations in their annexes shared common ground. It was assumed that these national corporate taxes covered by each of the traditional corporate tax directives should also be encompassed by the corporate tax concept of the ATAD.