This document summarizes a presentation on cross-border reorganizations in Europe given by experts from the EU Commission and law firms ALTIUS and Tiberghien. The presentation covered corporate and tax aspects of cross-border mergers, demergers, and transfers of company headquarters across EU/EEA countries. On the corporate side, it discussed which types of companies can participate in cross-border mergers and the main difficulties such as differences in procedures, languages, and approval requirements across jurisdictions. On tax, it addressed conditions for tax-neutral reorganizations and potential adverse tax consequences.
This guide is being published in the context of recent transformations in insolvency law in Europe, marked by two major anticipated events.
The first event is the application, as of 26 June 2017, of the EU regulation on insolvency of 2000, reformed in 2015, which strengthens, in particular, (i) the cooperation among national courts and among court-appointed insolvency practitioners, and (ii) the coordination of the different types of procedures available to groups in distress for greater efficiency.
The second event comes on the heels of the 16 January 2017 transmission to the European Parliament Legal Affairs Committee of the proposal, dated 22 November 2016, for a directive of the European Commission supporting the ambitious yet realistic project of harmonizing the 28 national insolvency laws based on 3 unifying themes: (i) the promotion of early restructuring tools for companies in distress to minimize insolvencies and thereby the elimination of jobs, (ii) the strengthening of the efficiency of insolvency proceedings in the interests of creditors, and finally (iii) the right to a second chance for bankrupted but honest entrepreneurs to allow them to bounce back.
These two major events will reduce legal obstacles and eliminate discrepancies among the various national insolvency laws to give finally more predictability to banks and investors, thus enhancing the attractiveness and competitiveness of Europe and, ultimately, encouraging employment. This guide helps the reader to understand the functioning of European insolvency law, the objectives of harmonization at the national level among European countries, and the different amicable procedures (early restructuring) and judicial proceedings (insolvency) applicable in each of the 19 participating countries. Stéphanie Chatelon and Arnaud Pédron from the Taj law firm lead the Insolvency Group, the international working group of the Deloitte Legal network, which brings together more than 50 lawyers specialized in insolvency law from 21 European law firms affiliated or unaffiliated with Deloitte in 19 European countries (both members and non-members of the EU).
The Brexit transition period ends on 31 December 2020. If you want to keep servicing your customers, you need to prepare for the period post-Brexit. In this presentation, I highlight the possibilities from a Dutch perspective. Please contact me by sending me a message through my LinkedIn page should you need any advice or assistance.
Dr Dev Kambhampati | Doing Business in Switzerland - 2014 Country Commercial ...Dr Dev Kambhampati
This document provides an overview of doing business in Switzerland. It discusses Switzerland's population, GDP, exports with the US, infrastructure, workforce, industries, and demand for high-quality products and technology. Major challenges include a sophisticated, competitive market with some unique regulatory standards. Opportunities lie in advanced technologies, use of Switzerland as a gateway to EU markets, and partnerships in areas like biotech and renewable energy. The document recommends expressing long-term commitment, using distributors for market penetration, and adapting to local needs and standards when entering the Swiss market. It provides guidance on various market entry strategies including using agents, establishing offices or branches, franchising, direct marketing, and selling to the government.
1. The document discusses challenges related to ensuring fair taxation in a globalized economy and debates introducing the concept of "minimum effective taxation" in the EU.
2. It considers how globalization and aggressive tax planning by multinationals has led to issues like double non-taxation and tax competition between jurisdictions. Some member states argue this harms fairness while others say tax competition benefits competitiveness.
3. Introducing "minimum effective taxation" in certain EU legislation is debated as a way to address tax base erosion and profit shifting between member states, though views diverge on this. Ensuring fair taxation in relations with third countries is also examined.
The document provides information for investors on doing business in Poland, outlining the country's stable economy, large market size, and benefits such as EU funding. It discusses the legal forms of businesses in Poland, taxation requirements, and the basic steps for starting a business, including registration, licensing, and accounting obligations. The contact information is also provided for legal assistance with business set up and operations in Poland.
This document summarizes data on 127 known investor-state dispute settlement (ISDS) cases brought against 20 EU member states since 1994. Key findings include: compensation sought in the 62 cases where data was available totals almost €30 billion; amounts awarded in the 14 cases with available data totals €3.5 billion; 76% of cases targeted new EU member states that joined between 2004-2007, with the Czech Republic being the most targeted with 26 cases; and almost 60% of cases concerned environmentally relevant sectors. The document examines costs of ISDS for EU taxpayers and risks to government regulation of issues like the environment from expanded trade agreements.
Asset management in Europe_The case for reform-DigitalToby Illingworth
The asset management industry plays a key role in Europe's economy by raising money from investors and reinvesting it across a wide range of activities. It accounted for 29% of global assets under management in 2012. Asset managers help encourage economic investment across Europe by investing over €6 trillion in assets in 2013. This benefits the over 22.5 million European households that are invested in mutual funds. A sound and vibrant asset management industry is important for economic growth in Europe as banks continue to de-risk.
The Dawn of a General Anti Avoidance Rule: the Italian ExperienceUniversity of Ferrara
Italy has recently introduced a GAAR in its tax system. While the wording of the clause is not original, considering the experience the other countries might have about it, it is the context in which the provision shall operate that arose the interest of the firs commentators.
The article considers is particular the ways in which it will be arguably applied, taking into account the similar (although tailor-made) regulations that address the phenomenon, and that that have not been repealed by it. Treaty based, EU inspired, special law enacted clauses are still there and may potentially collide with the GAAR, making the overall outcome unpredictable for the Interpreter and for the taxpayer as well.
This guide is being published in the context of recent transformations in insolvency law in Europe, marked by two major anticipated events.
The first event is the application, as of 26 June 2017, of the EU regulation on insolvency of 2000, reformed in 2015, which strengthens, in particular, (i) the cooperation among national courts and among court-appointed insolvency practitioners, and (ii) the coordination of the different types of procedures available to groups in distress for greater efficiency.
The second event comes on the heels of the 16 January 2017 transmission to the European Parliament Legal Affairs Committee of the proposal, dated 22 November 2016, for a directive of the European Commission supporting the ambitious yet realistic project of harmonizing the 28 national insolvency laws based on 3 unifying themes: (i) the promotion of early restructuring tools for companies in distress to minimize insolvencies and thereby the elimination of jobs, (ii) the strengthening of the efficiency of insolvency proceedings in the interests of creditors, and finally (iii) the right to a second chance for bankrupted but honest entrepreneurs to allow them to bounce back.
These two major events will reduce legal obstacles and eliminate discrepancies among the various national insolvency laws to give finally more predictability to banks and investors, thus enhancing the attractiveness and competitiveness of Europe and, ultimately, encouraging employment. This guide helps the reader to understand the functioning of European insolvency law, the objectives of harmonization at the national level among European countries, and the different amicable procedures (early restructuring) and judicial proceedings (insolvency) applicable in each of the 19 participating countries. Stéphanie Chatelon and Arnaud Pédron from the Taj law firm lead the Insolvency Group, the international working group of the Deloitte Legal network, which brings together more than 50 lawyers specialized in insolvency law from 21 European law firms affiliated or unaffiliated with Deloitte in 19 European countries (both members and non-members of the EU).
The Brexit transition period ends on 31 December 2020. If you want to keep servicing your customers, you need to prepare for the period post-Brexit. In this presentation, I highlight the possibilities from a Dutch perspective. Please contact me by sending me a message through my LinkedIn page should you need any advice or assistance.
Dr Dev Kambhampati | Doing Business in Switzerland - 2014 Country Commercial ...Dr Dev Kambhampati
This document provides an overview of doing business in Switzerland. It discusses Switzerland's population, GDP, exports with the US, infrastructure, workforce, industries, and demand for high-quality products and technology. Major challenges include a sophisticated, competitive market with some unique regulatory standards. Opportunities lie in advanced technologies, use of Switzerland as a gateway to EU markets, and partnerships in areas like biotech and renewable energy. The document recommends expressing long-term commitment, using distributors for market penetration, and adapting to local needs and standards when entering the Swiss market. It provides guidance on various market entry strategies including using agents, establishing offices or branches, franchising, direct marketing, and selling to the government.
1. The document discusses challenges related to ensuring fair taxation in a globalized economy and debates introducing the concept of "minimum effective taxation" in the EU.
2. It considers how globalization and aggressive tax planning by multinationals has led to issues like double non-taxation and tax competition between jurisdictions. Some member states argue this harms fairness while others say tax competition benefits competitiveness.
3. Introducing "minimum effective taxation" in certain EU legislation is debated as a way to address tax base erosion and profit shifting between member states, though views diverge on this. Ensuring fair taxation in relations with third countries is also examined.
The document provides information for investors on doing business in Poland, outlining the country's stable economy, large market size, and benefits such as EU funding. It discusses the legal forms of businesses in Poland, taxation requirements, and the basic steps for starting a business, including registration, licensing, and accounting obligations. The contact information is also provided for legal assistance with business set up and operations in Poland.
This document summarizes data on 127 known investor-state dispute settlement (ISDS) cases brought against 20 EU member states since 1994. Key findings include: compensation sought in the 62 cases where data was available totals almost €30 billion; amounts awarded in the 14 cases with available data totals €3.5 billion; 76% of cases targeted new EU member states that joined between 2004-2007, with the Czech Republic being the most targeted with 26 cases; and almost 60% of cases concerned environmentally relevant sectors. The document examines costs of ISDS for EU taxpayers and risks to government regulation of issues like the environment from expanded trade agreements.
Asset management in Europe_The case for reform-DigitalToby Illingworth
The asset management industry plays a key role in Europe's economy by raising money from investors and reinvesting it across a wide range of activities. It accounted for 29% of global assets under management in 2012. Asset managers help encourage economic investment across Europe by investing over €6 trillion in assets in 2013. This benefits the over 22.5 million European households that are invested in mutual funds. A sound and vibrant asset management industry is important for economic growth in Europe as banks continue to de-risk.
The Dawn of a General Anti Avoidance Rule: the Italian ExperienceUniversity of Ferrara
Italy has recently introduced a GAAR in its tax system. While the wording of the clause is not original, considering the experience the other countries might have about it, it is the context in which the provision shall operate that arose the interest of the firs commentators.
The article considers is particular the ways in which it will be arguably applied, taking into account the similar (although tailor-made) regulations that address the phenomenon, and that that have not been repealed by it. Treaty based, EU inspired, special law enacted clauses are still there and may potentially collide with the GAAR, making the overall outcome unpredictable for the Interpreter and for the taxpayer as well.
The document discusses the newly proposed Netherlands Commercial Court (NCC). It notes that the NCC aims to attract complex international commercial cases to be decided in Amsterdam. However, the author raises several critical points about the NCC project. He questions whether it will succeed given past failures like the Holland Financial Centre project. Concerns include the budget for the NCC, impartiality of Dutch judges, high litigation costs, vagueness in what constitutes complex commercial cases, and impact on other Dutch courts. The wide jurisdiction of the NCC is also noted.
Opportunities and challenges of managing a globally mobile workforceEversheds Sutherland
This document summarizes a presentation on Brexit opportunities and challenges for a globally mobile workforce. It discusses that Brexit will likely end free movement between the UK and EEA countries. It outlines practical steps employers are taking like auditing their workforce and providing support and guidance to EEA citizens. It also reviews options for employees such as applying for qualified person status, family member status, or permanent residence. Other potential practical HR issues for employers resulting from Brexit are also listed.
Bulletin source versus residence - jfb and rtsRamon Tomazela
This document summarizes an article that discusses the dichotomy between source and residence taxation in international taxation and tax treaties. It notes that some developed countries have started taxing profits of multinational enterprises from exploiting their consumer markets, even without a permanent establishment. Meanwhile, developing countries argue that source states should tax technical service payments to prevent erosion of their tax bases. The document outlines how Article 7 of tax treaties allocates taxing rights and the concept of permanent establishment. It discusses the challenges posed by the source vs residence dichotomy as business models have evolved with globalization and technology changes.
Business taxation in Croatia (Copyright Natasa Zunic Kovacevic)University of Ferrara
Business taxation in Croatia attracting foreign investments in post accession era. Presentation delivered at the University of Ferrara, Rovigo campus, on January 27th 2017. All rights reserved by the author.
Prevention of hybrid mismatches as a justificationRamon Tomazela
This document discusses the European Union's justification for preventing hybrid mismatches as a way to tackle cross-border tax arbitrage. It begins by explaining how differences in tax rules between jurisdictions create opportunities for taxpayers to engage in tax planning strategies that exploit these differences. Specifically, hybrid mismatch arrangements can result in double deductions, deduction without inclusion, or excessive foreign tax credits. The EU has taken steps through the Parent-Subsidiary Directive and BEPS project to eliminate double non-taxation from these arrangements. The document then analyzes how hybrid mismatches can hamper the objectives of the single market by resulting in significant lost tax revenue and creating an uneven playing field for companies.
Zugimpex presentation about swiss company formation 2018 limassolHannes Schwarz
Zugimpex shows that it is still attractive to own a Swiss company, if you can use the image, have contact to local customers or benefit from legal advantages.
Respective scopes of european and national laws concerning crowdfunding opera...FinPart
This document discusses the legal frameworks governing crowdfunding at both the EU and national levels in France. At the EU level, crowdfunding activities may be subject to directives around payments, e-money, markets in financial instruments, and anti-money laundering. National laws in France further regulate areas like collecting money from the public and specific investment vehicles. The document proposes creating a new crowdfunding services provider status and exemptions for certain investments and loans to better accommodate crowdfunding within the existing legal structures.
There are no limitations for foreign investors when it comes to setting up companies. A foreign natural or legal person may establish any form of company either together with other foreign or Slovak persons or alone as a sole shareholder. In this respect, foreign natural and legal persons enjoy the same rights and bear the same obligations as Slovak persons and may not be discriminated against.
This document summarizes Ageas's announcement of a settlement regarding legal proceedings related to events at Fortis in 2007 and 2008. It announces a EUR 1.2 billion settlement that includes compensation for eligible shareholders. It describes the timeline and process for filing the settlement with the court, determining eligible shareholders, allowing for opt-outs, and distributing compensation. It also summarizes how Ageas has addressed legacy legal issues since 2009 and believes this settlement is the right solution to move forward.
European Commission Report on Investment Migration Schemes in EuropeJuddson Larkins
Report from the Commission to the European Parliament, The Council, The European Economic and Social Committee and the Committee of the Regions. Investor Citizenship and Residence schemes in the European Union
This document summarizes a presentation on EU state aid challenges relating to taxation. It introduces EU state aid rules and explains that tax arrangements can constitute illegal state aid if they confer a selective advantage through practices like transfer pricing rulings that endorse artificial profits. Recent investigations by the European Commission into such tax rulings granted by member states to certain companies are discussed. The document considers arguments for and against these investigations and explores implications and opportunities and risks for businesses in light of the Commission's actions.
Polish Tech Day 2017 - Baker & McKenzie "The 'New Normal' | Brexit, (More) Un...PLUG - Polish Tech Link
An introduction to the matters of Brexit from the legal perspective by Phelim O'Doherty from Baker & McKenzie. Delivered at the Polish Tech Day 2017.
Polish Tech Day is an annual conference in London dedicated to fostering mutual relationships between Poland and the UK in the technology sector. Please visit polishtechday.com for more.
The implications of State Aid can affect businesses operating within the EU, to protect your business it is vital to understand the risks in terms of both tax and corporate arrangements.
The document provides an overview of the World Customs Organization (WCO) including its history, membership, structure, activities, and research unit. Some key points:
- The WCO was established in 1952 and originally called the Customs Co-operation Council. It has over 180 member countries.
- The WCO Secretariat is led by the Secretary General and has directorates focused on capacity building, compliance and facilitation, and trade and tariff affairs.
- The WCO conducts research and capacity building activities to help modernize customs administrations and facilitate international trade. Examples provided are performance measurement projects and studies on exchange of information.
- The Research Unit was established in 2009 and produces papers, projects
Euro shorts 24.07.15 including AIFMD EMIR delay on passporting opinion and AI...Cummings
ESMA has announced a delay in publishing its opinion and advice relating to passporting under the AIFMD until the week of July 28, 2015. ESMA is also consulting on guidelines for sound remuneration policies under the AIFMD and UCITS V, with comments due by October 23, 2015. Additionally, ESMA has published updated Q&As on the application of the AIFMD and responses to its consultations on guidelines under MiFID II and draft RTS on clearing obligations under EMIR.
The ADIT (Advanced Diploma in International Taxation) is a globally recognized qualification for international tax professionals. It provides a rigorous benchmark for expertise in international corporate taxation regardless of industry or location. The ADIT qualification demonstrates mastery of the complexities of international tax through examinations testing detailed knowledge of specific country tax regimes and thematic areas like transfer pricing. It benefits both professionals and their employers by validating international tax expertise at a high global standard.
This document discusses offshore business structures and strategies to minimize taxes. It presents several multi-jurisdictional structures that employ offshore companies and trusts in places like the British Virgin Islands, Belize, Barbados, Luxembourg, Cyprus and Canada to benefit from low or no taxes and confidentiality. It also highlights strategies to avoid anti-avoidance legislation and maximize benefits from international tax treaties.
This document provides information for German companies interested in business opportunities in Italy and Germany. It discusses several key points:
1) Italy and Germany have similar economies structured around small and medium-sized companies, and have complementary industrial and export profiles.
2) DEinternational offers support services to help German SMEs internationalize, including market research, partner matching, and representation in legal and tax matters.
3) Information is provided on common business strategies for entering the Italian and German markets, as well as cultural differences to be aware of. Regulations regarding waste electrical and electronic equipment are also summarized.
4) Contact information is provided for any other questions.
The document discusses the newly proposed Netherlands Commercial Court (NCC). It notes that the NCC aims to attract complex international commercial cases to be decided in Amsterdam. However, the author raises several critical points about the NCC project. He questions whether it will succeed given past failures like the Holland Financial Centre project. Concerns include the budget for the NCC, impartiality of Dutch judges, high litigation costs, vagueness in what constitutes complex commercial cases, and impact on other Dutch courts. The wide jurisdiction of the NCC is also noted.
Opportunities and challenges of managing a globally mobile workforceEversheds Sutherland
This document summarizes a presentation on Brexit opportunities and challenges for a globally mobile workforce. It discusses that Brexit will likely end free movement between the UK and EEA countries. It outlines practical steps employers are taking like auditing their workforce and providing support and guidance to EEA citizens. It also reviews options for employees such as applying for qualified person status, family member status, or permanent residence. Other potential practical HR issues for employers resulting from Brexit are also listed.
Bulletin source versus residence - jfb and rtsRamon Tomazela
This document summarizes an article that discusses the dichotomy between source and residence taxation in international taxation and tax treaties. It notes that some developed countries have started taxing profits of multinational enterprises from exploiting their consumer markets, even without a permanent establishment. Meanwhile, developing countries argue that source states should tax technical service payments to prevent erosion of their tax bases. The document outlines how Article 7 of tax treaties allocates taxing rights and the concept of permanent establishment. It discusses the challenges posed by the source vs residence dichotomy as business models have evolved with globalization and technology changes.
Business taxation in Croatia (Copyright Natasa Zunic Kovacevic)University of Ferrara
Business taxation in Croatia attracting foreign investments in post accession era. Presentation delivered at the University of Ferrara, Rovigo campus, on January 27th 2017. All rights reserved by the author.
Prevention of hybrid mismatches as a justificationRamon Tomazela
This document discusses the European Union's justification for preventing hybrid mismatches as a way to tackle cross-border tax arbitrage. It begins by explaining how differences in tax rules between jurisdictions create opportunities for taxpayers to engage in tax planning strategies that exploit these differences. Specifically, hybrid mismatch arrangements can result in double deductions, deduction without inclusion, or excessive foreign tax credits. The EU has taken steps through the Parent-Subsidiary Directive and BEPS project to eliminate double non-taxation from these arrangements. The document then analyzes how hybrid mismatches can hamper the objectives of the single market by resulting in significant lost tax revenue and creating an uneven playing field for companies.
Zugimpex presentation about swiss company formation 2018 limassolHannes Schwarz
Zugimpex shows that it is still attractive to own a Swiss company, if you can use the image, have contact to local customers or benefit from legal advantages.
Respective scopes of european and national laws concerning crowdfunding opera...FinPart
This document discusses the legal frameworks governing crowdfunding at both the EU and national levels in France. At the EU level, crowdfunding activities may be subject to directives around payments, e-money, markets in financial instruments, and anti-money laundering. National laws in France further regulate areas like collecting money from the public and specific investment vehicles. The document proposes creating a new crowdfunding services provider status and exemptions for certain investments and loans to better accommodate crowdfunding within the existing legal structures.
There are no limitations for foreign investors when it comes to setting up companies. A foreign natural or legal person may establish any form of company either together with other foreign or Slovak persons or alone as a sole shareholder. In this respect, foreign natural and legal persons enjoy the same rights and bear the same obligations as Slovak persons and may not be discriminated against.
This document summarizes Ageas's announcement of a settlement regarding legal proceedings related to events at Fortis in 2007 and 2008. It announces a EUR 1.2 billion settlement that includes compensation for eligible shareholders. It describes the timeline and process for filing the settlement with the court, determining eligible shareholders, allowing for opt-outs, and distributing compensation. It also summarizes how Ageas has addressed legacy legal issues since 2009 and believes this settlement is the right solution to move forward.
European Commission Report on Investment Migration Schemes in EuropeJuddson Larkins
Report from the Commission to the European Parliament, The Council, The European Economic and Social Committee and the Committee of the Regions. Investor Citizenship and Residence schemes in the European Union
This document summarizes a presentation on EU state aid challenges relating to taxation. It introduces EU state aid rules and explains that tax arrangements can constitute illegal state aid if they confer a selective advantage through practices like transfer pricing rulings that endorse artificial profits. Recent investigations by the European Commission into such tax rulings granted by member states to certain companies are discussed. The document considers arguments for and against these investigations and explores implications and opportunities and risks for businesses in light of the Commission's actions.
Polish Tech Day 2017 - Baker & McKenzie "The 'New Normal' | Brexit, (More) Un...PLUG - Polish Tech Link
An introduction to the matters of Brexit from the legal perspective by Phelim O'Doherty from Baker & McKenzie. Delivered at the Polish Tech Day 2017.
Polish Tech Day is an annual conference in London dedicated to fostering mutual relationships between Poland and the UK in the technology sector. Please visit polishtechday.com for more.
The implications of State Aid can affect businesses operating within the EU, to protect your business it is vital to understand the risks in terms of both tax and corporate arrangements.
The document provides an overview of the World Customs Organization (WCO) including its history, membership, structure, activities, and research unit. Some key points:
- The WCO was established in 1952 and originally called the Customs Co-operation Council. It has over 180 member countries.
- The WCO Secretariat is led by the Secretary General and has directorates focused on capacity building, compliance and facilitation, and trade and tariff affairs.
- The WCO conducts research and capacity building activities to help modernize customs administrations and facilitate international trade. Examples provided are performance measurement projects and studies on exchange of information.
- The Research Unit was established in 2009 and produces papers, projects
Euro shorts 24.07.15 including AIFMD EMIR delay on passporting opinion and AI...Cummings
ESMA has announced a delay in publishing its opinion and advice relating to passporting under the AIFMD until the week of July 28, 2015. ESMA is also consulting on guidelines for sound remuneration policies under the AIFMD and UCITS V, with comments due by October 23, 2015. Additionally, ESMA has published updated Q&As on the application of the AIFMD and responses to its consultations on guidelines under MiFID II and draft RTS on clearing obligations under EMIR.
The ADIT (Advanced Diploma in International Taxation) is a globally recognized qualification for international tax professionals. It provides a rigorous benchmark for expertise in international corporate taxation regardless of industry or location. The ADIT qualification demonstrates mastery of the complexities of international tax through examinations testing detailed knowledge of specific country tax regimes and thematic areas like transfer pricing. It benefits both professionals and their employers by validating international tax expertise at a high global standard.
This document discusses offshore business structures and strategies to minimize taxes. It presents several multi-jurisdictional structures that employ offshore companies and trusts in places like the British Virgin Islands, Belize, Barbados, Luxembourg, Cyprus and Canada to benefit from low or no taxes and confidentiality. It also highlights strategies to avoid anti-avoidance legislation and maximize benefits from international tax treaties.
This document provides information for German companies interested in business opportunities in Italy and Germany. It discusses several key points:
1) Italy and Germany have similar economies structured around small and medium-sized companies, and have complementary industrial and export profiles.
2) DEinternational offers support services to help German SMEs internationalize, including market research, partner matching, and representation in legal and tax matters.
3) Information is provided on common business strategies for entering the Italian and German markets, as well as cultural differences to be aware of. Regulations regarding waste electrical and electronic equipment are also summarized.
4) Contact information is provided for any other questions.
Recent developments in the field of VAT: a view from the European CommissionDLA Piper Nederland N.V.
This workshop has been held at Legal Business Day on 8 September 2011.
This presentation takes you through the future of VAT from an EU perspective, giving detailed background information on the future VAT reforms and insight into what can be expected in the future VAT framework in Europe. Special attention is paid to the practical implications of the new European Council Regulation clarifying the existing VAT rules.
During this workshop DLA Piper specialists shared information concerning the key decision makers in Europe and the value of early participation in the legislative process for your business. A case study was presented, which focuses on the practical issues you may face if your business were to get involved in the legislative process.
This document summarizes business structures and legal processes in Italy. There are two main types of business structures - partnerships and capital companies. Partnerships include unlimited liability for partners while capital companies like S.r.l. and S.p.A. have limited liability. Information on companies can be found through the Italian Business Register. Judgments and financial information are available through credit reports from private agencies. Businesses contract with written contracts and invoices as evidence in courts which typically take 10-12 months for a judgment. Alternative dispute resolution includes mediation and arbitration.
The document discusses several recent tax developments across Europe:
1) The European Commission ordered Ireland to recover up to €13 billion in back taxes from Apple, claiming Ireland's tax rulings with Apple constituted illegal state aid. This decision does not affect Ireland's overall tax system.
2) New rules were enacted in the Netherlands imposing country-by-country reporting requirements and transfer pricing documentation obligations on large multinational groups.
3) The Silicon Valley Tax Directors Group sent a letter to the Dutch government with suggestions to improve the Netherlands' business tax regime and maintain its competitiveness in attracting foreign investment. They expressed concerns about the EU's anti-tax avoidance directive and public country-by-country reporting proposals
The document discusses several recent tax developments across Europe:
1) The European Commission ordered Ireland to recover up to €13 billion in back taxes from Apple, claiming Ireland's tax rulings with Apple constituted illegal state aid. This decision does not affect Ireland's overall tax system.
2) New rules were enacted in the Netherlands imposing country-by-country reporting requirements and transfer pricing documentation obligations on large multinational groups.
3) The Silicon Valley Tax Directors Group sent a letter to the Dutch government with suggestions to improve the Netherlands' business tax regime and maintain its competitiveness in attracting foreign investment. They expressed concerns about the EU's anti-tax avoidance directive and public country-by-country reporting proposals
DAC6 has potential direct and indirect impacts on the business of Hong Kong based financial intermediaries.
The presentation highlights the requirements and way forward
This document discusses the process of starting a new business in Spain and other European countries. It provides details on the different types of business entities in Spain, including sole proprietorships and limited liability companies. It compares the procedures and costs associated with starting a business across several European nations, finding that Spain requires 13 days and €464 on average to incorporate a company. The document concludes with recommendations from the European Union to simplify business creation across member states.
Dr Dev Kambhampati | Doing Business in Switzerland - 2014 Country Commercial ...Dr Dev Kambhampati
This document provides an overview of doing business in Switzerland. It discusses Switzerland's population, GDP, exports with the US, infrastructure, workforce, industries, and demand for high-quality products and technology. Major challenges include a sophisticated, competitive market with some unique regulatory requirements. Opportunities lie in advanced technologies, use of Switzerland as a gateway to Europe, and partnerships in areas like biotech. When entering the market, companies should commit for the long term, work with importers/distributors, meet customer needs, and offer environmentally friendly products. The document then discusses political/economic environment, selling products and services, trade regulations, investment climate, and contacts for further information.
CMS Bureau Francis Lefebvre is a French law firm with over 700 employees including 450 lawyers. It is part of the international CMS alliance network of law firms with over 2000 lawyers across 47 offices worldwide. CMS Bureau Francis Lefebvre provides legal services in business law, tax law, and employment law both within France and internationally through its offices and partnerships.
- The document summarizes recent tax law developments in the European Union. Key points include:
- EU Member States agreed on rules to tackle "hybrid mismatches" between tax structures of EU and non-EU countries. This will impact many existing corporate structures.
- The Netherlands Supreme Court referred preliminary questions to the EU Court of Justice regarding whether denying refunds of dividend withholding tax to non-resident investment funds discriminates against them compared to Dutch funds.
- The EU Court of Justice ruled that a non-resident individual receiving 60% of income in the Netherlands should be allowed to deduct losses from a property in their country of residence, Spain, from their Dutch taxable income.
This document provides an overview of doing business in Spain. It discusses various business entities like corporations, partnerships, sole proprietorships and branches. It covers accounting and audit requirements, as well as finance and investment topics such as exchange controls, banking, incentives and restrictions. Key points include minimum capital requirements to form corporations, joint venture options, filing annual financial reports, and freely repatriating profits without exchange controls.
Corporate Sustainability Due Diligence Directive (CSDDD or the EU Supply Chai...Dr. Oliver Massmann
Corporate Sustainability Due Diligence Directive (CSDDD or the EU Supply Chain Law): A Comprehensive Analysis and Review of its Implications on Vietnam-based Companies
This document provides an overview of doing business in the Netherlands. It discusses establishing different types of business entities like BVs and NVs, finding a location, available subsidies, tax legislation, personnel matters, and addresses for further assistance. The key points are:
- BVs and NVs are the most common legal entities for doing business in the Netherlands. A BV is similar to a private limited company and an NV is similar to a public limited company.
- Location is important, with most industry located in western regions near the port of Rotterdam and major transportation hubs.
- Tax rates are moderate and subsidies are available in some industries and locations. Employment laws provide strong worker protections.
This document discusses the influence that the Big Four accounting firms (Deloitte, PwC, EY, and KPMG) have on EU tax policy through various channels. It notes that despite evidence that these firms facilitate corporate tax avoidance, they continue to advise the EU on tackling tax avoidance through positions on advisory groups and by receiving millions in public contracts. The document also provides two case studies that illustrate how the Big Four and multinational corporations lobby the EU to weaken proposed transparency rules and country-by-country reporting. It concludes that the Big Four have conflicts of interest due to their role in tax avoidance, and should be removed from advising the EU on related policy.
Bufete Escura is a respected law firm in Barcelona that provides legal services to both Spanish and global companies. The nine-lawyer firm prides itself on its personalized and proactive approach. This document provides an overview of investments and trade in Spain, including the country's legal system, types of business entities like public limited companies and limited liability companies, tax system, labor regulations, and civil legal proceedings. It summarizes the key steps and considerations for foreign companies looking to invest and establish operations in Spain.
Selected issues on beneficial ownership from the OECD and the EUInfotropic Media
Презентация с международной налоговой конференции «Жизнь после Кипра: налоговый апгрейд» (taxconference.ru)
Сессия 1: Еврооблигации и бенефициарная собственность: современная российская и международная практика
The document discusses various forms of business activity available in Poland and provides details on three specific forms:
1) Limited liability companies have a minimum share capital of PLN 5,000 and shareholders have limited liability.
2) Limited partnerships have at least one general partner with unlimited liability and limited partners with liability up to their contribution.
3) Branches allow foreign entrepreneurs to conduct limited activities in Poland and the foreign entrepreneur is liable for branch acts.
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Cross border reorganizations in europe-have the tax and legal obstacles now been removed
1. Cross-Border Reorganizations in Europe:
have the tax and legal obstacles now been removed?
MCB-Forum – Brussels
2 October 2012
2. Who are the speakers?
Mr. Juan Lopez Rodriguez, Senior Tax Policy Advisor of the
Directorate General ‘TAXUD’, Unit Company Taxation Initiatives
at the EU Commission
Mr. Ivo Vande Velde, Counsel at Tiberghien and co-editor of
European Cross-Border Mergers and Reorganizations, Oxford
University Press 2012
Mr. Jérôme Vermeylen, M&A partner at ALTIUS and co-editor
of European Cross-Border Mergers and Reorganizations, Oxford
University Press 2012
3. About ALTIUS | Tiberghien
One team of 110 tax and business lawyers of 2 top firms that
have an operational relationship and provide seamless
legal and tax services to clients
Partner-led approach towards client service and relationships
Best Benelux Law Firm of 2012 (International Legal Alliance
Summit Awards)
Experienced in cross-border work:
often praised for its international approach to problem-solving that takes
into account global issues within a local market context
Shared offices in Brussels, Antwerp and Luxembourg
4. General Introduction
Corporate
What are the possibilities and limitations in terms of cross-border
corporate reorganizations in Europe?
Tax
What are the conditions for a tax-neutral reorganization?
Which cross-border reorganizations could have adverse tax
consequences?
Are the Belgian tax rules on cross-border reorganizations fully
compliant with the MTD and with primary EU law?
EU developments
Interpretation issues relating to the MTD
Recent developments relating to corporate migration
6. Corporate – general overview: 4 topics
1. Can all EU/EEA (EU + Iceland, Norway and Liechtenstein)
companies take part in a cross-border merger?
2. What are the main difficulties encountered in the context of a
harmonized cross-border merger and how can they be
tackled?
3. Can EU/EEA companies demerge across borders?
4. Can EU/EEA companies move their registered office and/or
their head office across the EU/EEA?
7. Can all EU/EEA companies take part in
a cross-border merger?
8. Cross-border mergers: which EU/EEA companies?
Harmonized cross-border mergers: governed by Directive
2005/56/EC (CBMD)
Type: all limited liability companies (Art. 2(1) CBMD)
i.e. any company (i) with share capital and (ii) having legal
personality, (iii) possessing separate assets which alone serve
to cover its debts and (iv) subject under national law to the
same or similar rules as imposed under Directive 2009/101/EC
(Publicity Directive), provided they:
are entitled to domestic mergers
have the specific capacity to merge
are formed according to the laws of an EU/EEA Member State
and
have their registered office, central administration or principal
place of business in the EU/EEA
9. Cross-border mergers: which EU/EEA companies?
(3)
Excluded companies (Art. 3(2) CBMD)
Cooperative societies (optional for Member States)
Undertakings for collective investment in transferable securities
(UCITS)
Unclear: companies in liquidation
“Nationality”: not for purely domestic mergers! (Art. 1 CBMD)
at least two of them governed by the laws of another Member
State
in principle also if from the same Member State but newly
incorporated company in another Member State
10. Cross-border mergers: which EU/EEA companies?
(2)
BelCo
Before
BelCo
After
New
FrenchCo
Belgian
branch
MERGER
11. Cross-border mergers: which EU/EEA companies?
(5)
Can non-limited liability and excluded companies merge?
Cooperative societies: SCE Regulation
UCITS: UCITS IV Directive
Extension of harmonized cross-border merger procedure to non-
limited liability companies: up to the Member States
Other companies (provided entitled to merge under domestic
law) : non-harmonized cross-border mergers under the freedom
of establishment (SEVIC Systems)
12. Cross-border mergers: which Belgian companies?
Law of 8 June 2008 introducing Art. 772/1 to 772/14 BCC
Extension of the scope: all companies entitled to a domestic
merger except UCITS, i.e.:
Public limited liability companies (NV/SA)
Private limited liability companies (BVBA/SPRL)
Partnerships limited by shares (Comm.VA/SCA)
Ordinary limited partnerships (Comm.V/SCS)
General partnerships (VOF/SNC)
Cooperative societies with or without limited liability (CVBA and
CVOA/SCRL and SCRI)
Societas europea (SE)
Societas cooperative europea (SCE)
13. Cross-border mergers: which Belgian companies?
(2)
Not included:
Companies without a legal personality
Belgian and European economic interest groupings ((E)EIG)
Agricultural companies
UCITS
Companies in liquidation: provided distribution of assets to
shareholders not started
Extension of scope: not limited to mergers with EU/EEA
companies
14. Which companies: case studies
German
GmbH
Comm.V/SCS
German law: only with other limited liability
companies
15. Which companies: case studies (2)
Dutch B.V.
CVBA/SCRL
Dutch law: limited specific capacity to merge
16. Which companies: case studies (2)
SwissCo
NV/SA
Swiss law: cross border merger procedure
Belgian law: not limited to mergers with
EU/EEA companies
17. Which companies: advice
Check first legal feasibility of the planned merger
A harmonized merger may become feasible after some
changes are made (e.g. change of legal form)
Consider a non-harmonized merger but be aware of legal and
practical difficulties
18. Main difficulties encountered in the context of
a harmonized cross-border merger and
how to tackle them
2/10/2012 18
19. Harmonized mergers: overview of main issues
1. Employee participation procedure
2. Differences in procedures and timing
3. Languages and translations
4. Local courts and authorities
5. Duration and costs
20. Main issues: employee participation
Political solution coping with differences in involvement of
employees through the EU
Principle: participation system of country of acquiring
company BUT exceptions
If applicable: appointment of a special negotiating body (SNB)
and negotiation procedure to reach an agreement on the
participation of employees in the acquiring company
Complex procedure for appointing the SNB
Negotiations during up to one year
If applicable: often a “merger breaker”!
21. Main issues: differences in procedure / timing
Principle: each company applies its own national merger rules
Similar rules and timing in most continental Europe countries
Sweden:
Filing with the Companies Registration Office of common draft
terms of merger, independent expert report, annual accounts
and interim accounting statement at the same time
Approval of the merger by the general assembly
Notice to the company’s known creditors (unless exception)
Application for permission to implement the merger and
verification of legality by the Companies Registration Office
The Companies Registration Office can ask the creditors if they
oppose the merger
The Tax Agency can suspend the merger for up to 12 months
22. Main issues: differences in procedure / timing (2)
Hungary: one or two steps procedure
First management report on the merger presented to a first
general assembly: decision to continue procedure, assessment
who wants to remain a shareholder and instructions to the board
Board prepares common draft terms of merger, accounts, report,
second management report and a proposal for the settling of
accounts of departing shareholders
Second general meeting approving the merger
No notary but application for registration of the merger by the
court of registration
UK and Ireland: no notary, court scrutinizes the merger after
the approval by the general assembly
23. Main issues: differences in procedure / timing (3)
Advice: ensure good project management
Clarify applicable procedure, requirements and timing in each
jurisdiction
One global action plan including all companies and jurisdictions
involved with realistic timing and clear responsibilities
Good and permanent communication between the lawyers of all
jurisdictions involved, the clients, the auditors and others
24. Main issues: languages and translations
Not harmonized at EU/EEA level; each Member State is free
to apply its own rules
Usually local language must be used; some accept English
documentation
Translations increase costs and timing
Advice: take translation timing and costs into account
25. Main issues: local courts and authorities
Cross-border merger often viewed as an exotic novelty
Interpretation issues and lack of established practice
Lack of consistency of implementation and interpretation,
often even within the same jurisdiction
Red tape
26. Main issues: local courts and authorities (2)
Advice:
start communicating with local courts and authorities early on
regularly double-check their interpretations, requirements and
expectations
be realistic about the timing and take delays into account
27. Main issues: duration and costs
It takes time.
If straightforward (no employee participation procedure and
no employment, regulatory, competition or other issues): 6
months is realistic.
Costs include: lawyers, notaries, auditors, translators, filing
and publication costs, internal resources
29. Can EU companies demerge across borders?
No harmonization of cross-border divisions
Based on Sevic (CJEU case): yes provided this is a way for a
company to exercise its right of establishment
Limitations:
only for EU/EEA companies having their registered office,
central administration or principal place of business in the
EU/EEA
only if entitled to a domestic division
30. Can EU companies demerge across borders? (2)
Generally not specifically organized by the law of Member
States (exceptions: Luxembourg and Spain).
Vereinigungstheorie: distributive application by each company
of domestic rules for domestic divisions and cumulative
application of domestic rules (or strictest rule) if uniform
treatment required
31. Can EU/EEA companies move their
registered office and/or their head office across
the EU/EEA?
32. Can EU/EEA companies move across borders?
General background
Issue: can companies “move across borders” without
interruption of their legal personalities?
What does this mean?
Head office = place of central administration or headquarters
Registered office = primary or official establishment (statutes)
Move across borders = inbound or outbound transfer
Transfer of head office = no formality, a matter of fact
Transfer of registered office = formal decision, involving a
change of legal system, i.e. cross-border conversion
No interruption of legal personality: legal continuity
33. Can EU/EEA companies move across borders?
General background (2)
What is a company’s “nationality”, i.e. lex societatis?
National conflicts of law rules determine the connecting factors
Two main systems: incorporation theory vs real seat theory
Conflicting results
Case studies:
Dutch company (incorporation theory state) moves its head
office to Belgium (real seat theory state) double nationality
Belgian company (real seat theory state) moves its head office
to the UK (incorporation theory state) in principle stateless
company (but exception to real seat theory in Art. 110(2) CPIL:
renvoi)
34. Can EU/EEA companies move across borders?
General background (3)
Impact of the incorporation theory on the mobility of
companies?
no obstacle to inbound or outbound transfer of head office / real
seat; no impact of transfer on lex societatis
no inbound or outbound transfer the registered office without
loss of legal personality; no change of the lex societatis
35. Can EU/EEA companies move across borders?
General background (4)
Impact of the real seat theory on the mobility of companies?
no outbound transfer the head office / real seat without loss of
legal personality
no inbound transfer the head office / real seat without loss of
legal personality
inbound or outbound transfer of registered office not possible
without change of head office / real seat
36. Can EU/EEA companies move across borders?
Impact of EU/EEA law
No harmonization of rules for the mobility of companies
Exceptions: SEs, SCEs and EEIGs
No harmonization of connecting factors in EU/EEA:
incorporation theory and real seat theory on the same footing
(Art 54 TFEU)
BUT right to primary or secondary establishment in the
EU/EEA (Art 49 and 54 TFEU)
compatibility of national rules to be assessed
37. Can EU/EEA companies move across borders?
Impact of EU/EEA law (2)
Direct or indirect restrictions to the right of establishment are
prohibited except in the case of “general good exceptions”
and under specific conditions (CJEU case law):
only non-discriminatory restrictions
serve over-riding public interest requirements
suitable to attain the objectives
not beyond what is necessary to reach objectives
complies with secondary EU law (Regulations and Directives)
CJEU case law on the cross-border mobility of companies:
Daily Mail, Centros, Inspire Art, Überseering, Cartesio and
Vale Epitesi
38. Can EU/EEA companies move across borders?
Inbound transfer of registered and head offices
Problematic under both theories
Hungarian law: no registration of cross-border transfer and
conversion of Italian company into a Hungarian company
CJEU in VALE Epitesi case:
freedom of establishment applies
host Member State entitled to determine national law applicable
to conversion (incorporation and functioning)
no general prohibition by host Member State to convert without
interruption of legal personality
no discrimination compared to domestic conversion
principle of effectiveness: take into account documents of
Member State of origin
39. Can EU/EEA companies move across borders?
Inbound transfer of the head office but not the
registered office
Problematic under the real seat theory, not under the
incorporation theory
Danish authorities refused to register a branch office of an
English Ltd:
all activities of Centros Ltd to be exercised in Denmark
only motive is to avoid stricter Danish requirements (e.g. capital)
CJEU in Centros case:
freedom of establishment EU/EEA company may not be
prevented from opening a branch office in another Member State
even if all activities are exercised by the branch office
40. Can EU/EEA companies move across borders?
Inbound transfer of the head office but not the
registered office (2)
Strict application of real seat theory under German law
(meanwhile changed):
Überseering moved its head office (not its registered office) from
the Netherlands to Germany
German Court: no legal personality under German law not
entitled to legal proceedings in Germany
CJEU in Überseering case:
freedom of establishment EU/EEA company may not be
prevented from opening its head office in another Member State
Germany must recognize legal personality of foreign EU/EEA
companies despite its own connecting factors
41. Can EU/EEA companies move across borders?
Inbound transfer of the head office but not the
registered office (3)
Dutch law applies the incorporation theory
BUT imposed substantive company law requirements on foreign
companies which moved their activities to the Netherlands
CJEU in Inspire Art case:
Member State may not impose substantive company law
requirements on an EU/EEA company with a branch office even
if the company has no longer any activities in its home Member
State
42. Can EU/EEA companies move across borders?
Inbound transfer of the registered office but not
the head office
Problematic under both theories
No CJEU case law BUT:
Daily Mail and Cartesio cases: Member States have the power to
define the connecting factors
real seat theory countries should be able to refuse
less clear in relation to the incorporation theory but probably
same result
does probably not qualify as the exercise of a right to a primary
or secondary establishment
43. Can EU/EEA companies move across borders?
Outbound transfer of registered and head offices
Problematic under both theories
CJEU in Cartesio case (obiter dictum):
home Member State has not the right to refuse or hinder the
outbound transfer of both the head office and the registered
office provided the law of the host Member State permits such
transfer
44. Can EU/EEA companies move across borders?
Outbound transfer of the head office but not the
registered office
Problematic under the real seat theory, not under the
incorporation theory
CJEU in Daily Mail and Cartesio cases:
companies are creatures of national law and national law
determines the conditions for their existence and functioning
neutrality of EU/EEA law regarding connecting factors
a real seat theory Member State may decide not to recognize
the continued existence of a company governed by its laws and
which broke the connecting factor by moving its head office
abroad
45. Can EU/EEA companies move across borders?
Outbound transfer of the registered office but not
the head office
Problematic under both theories
No CJEU case law BUT:
Daily Mail and Cartesio cases: Member States have the power to
define the connecting factors
real seat theory countries should be able to refuse
less clear in relation to the incorporation theory but probably
same result
does probably not qualify as the exercise of the right to a primary
or secondary establishment
46. Can Belgian companies move across borders?
Inbound transfers
Inbound transfer of head and registered office accepted
(Lamot case):
procedure developed by legal scholars:
approval of transfer by competent organ of the foreign company
meeting of shareholders before Belgian notary to approve Belgian
statutes
filing of notarized deed and publication
deregistration of company by authorities of member State of origin
CJEU case law: inbound transfer of head office recognized
Inbound transfer of registered office only: not authorized
47. Can Belgian companies move across borders?
Outbound transfers
Outbound transfer of head and registered office accepted
(Vanneste case):
procedure developed by legal scholars:
general assembly before notary decides transfer according to
requirements for a change of statutes
formalities performed by company in host Member State for transfer
and registration
filing and publication of notarized deed and deregistration by Belgian
authorities
Outbound transfer of head office company no longer
recognized by Belgian law except if the host Member State
follows the incorporation theory (renvoi; Art. 110(2) CPIL)
Outbound transfer of registered office only: not authorized
48. Can EU/EEA companies move across borders?
What in practice?
Most countries: no national rules organizing this
High complexity and limited awareness despite CJEU cases
reluctance of national authorities
Harmonization demanded by all legal scholars and
practitioners
Draft 14th
Directive: no progress since many years
Practical solution: reach same result through a (harmonized)
cross-border merger
50. Tax - general overview: reorganization types
Outbound merger / division
Inbound merger / division
‘Extra-territorial’ reorganization – Transfer of a Belgian PE
Transfer of corporate seat
52. Case 1: Base Case of outbound merger
FrenchCo
Before
BelCo
After
FrenchCo
Belgian
PE
MERGER
Shareholders Shareholders
53. Case 1: Base Case of outbound merger (2)
General conditions for a tax-neutral cross-border
merger/division (Art. 211 ITC):
Qualification of the transaction as a merger / (partial) division
Company Code definitions prevail
Receiving company is a company from a Member State
Only intra-EU
Anti-abuse test
(tax avoidance versus valid commercial reasons)
Implementation in accordance with Company Code and similar
company law requirements in the Member State of the receiving
company
No provisions in Company Code on cross-border partial divisions
54. Case 1: Base Case of outbound merger (3)
What does ‘tax-neutrality’ mean?
Roll-over relief for capital gains on assets that, in consequence
of the transaction, are effectively connected with a Belgian PE of
the receiving company
Carry-over of tax-exempt reserves to the Belgian PE
Take-over of carried-forward tax losses by the PE to the extent
that such take-over applies in a domestic reorganization
Proportionate reduction of TLCF if the receiving company has a pre-
transaction PE in Belgium
No taxation in the hands of the shareholders
Roll-over relief for capital gains (Art. 45, §1 ITC – Art. 95 ITC)
No deemed distribution of assets; no dividend taxation; no dividend
withholding tax
55. Case 2: Assets not connected to a Belgian PE
in consequence of the merger
Taxation of capital gains on assets transferred
MTD: roll-over subject to PE requirement (Art. 4)
National Grid Indus case (C-371/10)
(exit taxation - transfer of corporate seat):
Based on Freedom of Establishment (Art. 49 TFEU):
tax claim of exit Member State on unrealised capital gains may
be preserved, but immediate recovery of tax is disproportionate.
Sevic Systems case (C-411/03): cross-border merger is a
means of exercising the freedom of establishment
Commission’s Communication on exit taxation (19-12-2006):
no reference to cross-border mergers
Is PE-requirement in the MTD disproportionate?
56. Case 2: Assets not connected to a Belgian PE
in consequence of the merger (2)
Subsequent ‘disconnection’ of assets from the PE
Capital gains recognised subsequently to the assets’
disconnection from the PE, are considered ‘realised’
No deemed liquidation – no dividend (withholding) tax issue?
57. Case 2: Assets not connected to a Belgian PE
in consequence of the merger (3)
Unutilized carried-forward tax losses
MTD: take-over of losses by a PE in the Member State of the
transferring company, i.e. relief where the losses have been
incurred (Art. 6)
Speculative idea: relief for residual ‘terminal’ losses in the
Member State of the receiving company if (i) a take-over of
losses is allowed in a domestic merger and (ii) the activities in
the Member State of the transferring company are fully
discontinued in the Member State of the transferring company?
‘Terminal’ losses: see Marks & Spencer case (C-446/03)
Request for preliminary CJEU ruling by Finnish Supreme Court
(C-123/11) – Opinion Adv.-Gen. 19 July 2012: no requirement to
give loss relief in Finland
58. Case 2: Assets not connected to a Belgian PE
in consequence of the merger (4)
Dividend withholding tax – taxation in the hands of the
shareholders
Under Belgian ITC: in principle dividend withholding tax liability
due to deemed liquidation (subject to exemption based on
Parent/Subsidiary Directive or Tate & Lyle case – C-384/11)
Art. 8 MTD:
“(…) the allotment of securities representing the capital of the
receiving company in exchange for securities representing the
capital of the transferring company shall not, of itself, give rise to
any taxation of the income, profits or capital gains of that
shareholder”
Under the MTD, shareholders’ relief is not subject to PE
condition.
59. Case 2: Assets not connected to a Belgian PE
in consequence of the merger (5)
Dividend withholding tax – taxation in the hands of the
shareholders (continued)
Art. 7 MTD (Parent/Subsidiary merger):
“When the receiving company has a holding in the capital of the
transferring company, any gains accruing to the receiving
company on the cancellation of its holding shall not be liable to
any taxation” (without any PE requirement)
Speculative idea: relevance of National Grid Indus case
(C-371/10)? Tax claim of exit Member State on unrealized
capital gains may be preserved, but immediate recovery of tax is
disproportionate.
Also applicable for cross-border mergers (cfr. Sevic Systems )?
Also preservation of tax claim and tax deferral on realized but
undistributed profits?
60. Case 3: Belgian transferring company has PE
in other Member State
FrenchCo
Before
BelCo
After
FrenchCo
Belgian
PE
MERGER
Shareholders Shareholders
Dutch
PE
Dutch
PE
61. Case 3: Belgian transferring company has PE
in other Member State (2)
Capital gains on assets of the PE
No roll-over relief based on Art. 4 MTD (because not “effectively
connected to a Belgian PE subsequent to the merger”)
Art. 10, § 1 MTD:
“Where the assets transferred in a merger include a PE of the
transferring company situated in another Member State, the
Member State of the transferring company shall renounce any
right to tax that PE”
DTT exemption – impact of ‘subject-to-tax’ clause?
Belgium-Netherlands DTT:
“income items that, in accordance with the Treaty, are taxed in
the Netherlands”
(See Circular 11-05-2006 - Court of Appeal Antwerp 21-06-
2011)
(See Advance ruling 2011.438)
62. Case 3: Belgian transferring company has PE
in other Member State (3)
Recapture of PE tax losses
ITC mechanism (Art. 206, §1 al 2)
Tax losses incurred in a PE in a DTT country that are deducted
against Belgian profits
Claw-back in tax year when the tax losses are deducted from profits
of the PE, or when the PE is transferred in a contribution, merger or
(partial) division
Claw-back for the full amount of the tax losses
Unconditional claw-back, i.e. also if the tax losses do not remain
available in the PE Member State
Claw-back mechanism also (but unnecessarily) applies in a
domestic merger
63. Case 3: Belgian transferring company has PE
in other Member State (4)
Recapture of PE tax losses (continued)
MTD
The Member State of the transferring company may reinstate
previously deducted tax losses (unconditional claw-back) (Art. 10,
§1 al 2)
The Member State of the PE must allow the take-over of the tax
losses only to the extent that such take-over is allowed in a
domestic transaction (Art. 10, §1 al 3 and Art. 6)
Potential double non-relief for the PE losses
64. Case 3: Belgian transferring company has PE
in other Member State (5)
Recapture of PE tax losses (continued)
Compatible with primary EU law?
Marks & Spencer case (C-446/03): relief to be granted by the
Member State of the parent company for ‘terminal’ losses incurred
by a subsidiary in another Member State, i.e. “losses that cannot be
taken into account in the Member State of the subsidiary either by
the subsidiary itself or by a third party”.
Opinion Adv.-Gen. in case C-123/11
Krankenheim case (C-157/07) : the Member State of the head office
is entitled to reintegrate previously deducted PE tax losses when the
PE makes profits, even if the PE Member State does not allow the
PE losses to be carried-forward and utilized against PE profits.
The recapture mechanism is proportionate, because limited to the
actual PE profits.
65. Case 3: Belgian transferring company has PE
in other Member State (6)
Dividend withholding tax – taxation in the hands of the
shareholders
Under Belgian ITC: in principle dividend withholding tax liability
due to deemed partial liquidation (deemed distribution of PE
assets) - subject to exemption based on Parent/Subsidiary
Directive or Tate & Lyle case (C-384/11)
Art. 8 MTD:
“the allotment of securities representing the capital of the
receiving company in exchange for securities representing the
capital of the transferring company shall not, of itself, give rise to
any taxation of the income, profits or capital gains of that
shareholder”
Under the MTD, shareholders’ relief is not subject to PE
condition.
67. Case 4: Inbound Parent/Subsidiary merger
BelCo
Before
GermanCo
After
BelCo
German
PE
MERGER
68. Case 4: Inbound Parent/Subsidiary merger (2)
Capital gain on cancellation of shareholding in Subsidiary
Art. 7 MTD:
“When the receiving company has a holding in the capital of the
transferring company, any gains accruing to the receiving
company on the cancellation of its holding shall not be liable to
any taxation” (without any PE requirement)
ITC mechanism
Participation exemption (DBI/RDT)
(Tax-neutral and taxable mergers)
No 10% participation threshold or 1-year holding requirement
provided the merger is tax-neutral and the transferring company is
resident in the EEA (Law 14 April 2011)
69. Case 4: Inbound Parent/Subsidiary merger (3)
Capital gain on cancellation of shareholding in Subsidiary
ITC mechanism (continued)
Exemption rate:
– 100% if the merger is tax-neutral and the transferring company is
resident in the EU
– 95% if the merger is not tax-neutral
– ‘tax-neutral’ versus ‘taxable’ test in Member State of Subsidiary?
– 95% if the transferring company is outside the EU
Basis for 5% taxation: book value or fair market value of assets
transferred?
– Book value (Art. 184ter, §2, al 1 ITC: “Capital gains on the acquired
assets are determined on the basis of their book value at the date of
the merger”)?
– Independent of ‘’tax-neutral’ versus ‘taxable’ status of the merger?
(cfr Art. 210, §2 ITC for domestic mergers)
70. Case 4: Inbound Parent/Subsidiary merger (4)
Capital gain on cancellation of shareholding in Subsidiary
ITC mechanism (continued)
Excess participation exemption
(e.g. Parent company in loss position)
– no carry-forward under ITC (Art. 205, §3)
– Inconsistent with Art. 7 MTD
(cf Cobelfret case relating to Parent/Subsidiary Directive – C-138/07)
72. Case 5a: ‘Extra-territorial’ hive-down involving
contribution of Belgian PE (or PE assets)
GermanCo
Before
DutchCo
After
GermanCo
Belgian
PE
ASSET CONTRIBUTION
Shareholders Shareholders
Belgian
PE
DutchCo
73. Case 5b: ‘Extra-territorial’ partial division
involving spin-off of Belgian PE (or PE assets)
GermanCo
Before
DutchCo
After
GermanCo
Belgian
PE
PARTIAL DIVISION
Shareholders Shareholders
Belgian
PE
DutchCo
74. ‘Extra-territorial’ reorganization involving
transfer of a Belgian PE (or PE assets) (3)
Art. 10 MTD
“Where the assets transferred in a merger, a division, a partial
division or a transfer of assets include a PE of the transferring
company which is situated in another Member State than that of
the transferring company”…
…”the Member State of the PE shall apply the provisions of this
Directive as if it were the Member State of the transferring
company”:
Roll-over relief for capital gains on PE assets
Carry-over of tax-exempt reserves of the PE
Take-over of carried-forward tax losses of the PE.
75. ‘Extra-territorial’ reorganization involving
transfer of a Belgian PE (or PE assets) (4)
Conditions under Belgian ITC (Art. 231, §2)
Merger, (partial) division or transfer of branch of activity or
universality of goods
Definitions in Company Code prevail (in principle)
(definition of ‘partial division’ is broader than under the MTD)
Both the transferring and the receiving company qualify as a
‘company from a Member State’
What if the transferring and the receiving companies are resident in
the same Member State?
A Belgian PE or assets located in Belgium are part of the assets
transferred
Also part / division of a PE? (broader than scope of MTD rule)
76. ‘Extra-territorial’ reorganization involving
transfer of a Belgian PE (or PE assets) (5)
Conditions under Belgian ITC (Art. 231, §2) (continued)
Transaction qualifying, in the Member State of the transferring
company, for the tax exemption provided by the MTD
(Art. 10, §1 al 1)
Anti-abuse test
(tax avoidance versus valid commercial reasons)
‘Branch of activity’ test for (a) the assets transferred and (b)
the assets remaining in the transferring company?
Take-over of carried-forward tax losses of the Belgian PE
Proportionately to ‘fiscal net value’ (Art. 240bis, §1, 2° ITC)
Same effects for hive-down and partial division?
Limitation of TLCF if receiving company has pre-transaction PE
Interpretation issues for ‘construction PE’
78. Case 6: Outbound transfer of corporate seat
Before
BelCo
After
Shareholders Shareholders
LuxCo
Shareholders Shareholders
TRANSFER OF SEAT
79. Case 6: Outbound transfer of corporate seat (2)
Belgian ITC
Liquidation rules apply at corporate level (Art. 210, §1, 4°)
But arguably no withholding tax in the absence of any
“distribution” (Article 18, 2°ter) or “payment/attribution” of income
(Art. 267)
Liquidation rules do not apply to intra-EU transfers to the extent
that the assets remain connected to a Belgian PE (Art. 214bis)
Upon subsequent ‘disconnection’ of assets from the PE: capital
gains on disconnected assets are deemed realized, but no
withholding tax issue?
MTD
Only transfer of seat by SE (SCE) is covered.
80. Case 6: Outbound transfer of corporate seat (3)
Primary EU law: National Grid Indus case (C-371/10)
“The transfer of the place of effective management from one
Member State to another cannot mean that the Member State
of origin has to abandon its right to tax a capital gain which
arose within the ambit of its powers of taxation before the
transfer” (principle of balanced allocation of powers of
taxation), but
“The freedom of establishment principle precludes legislation
which prescribes the immediate recovery of tax on unrealized
capital gains”
Same principles for undistributed profits?