Business Day

New EU draft law proposes fines for tax avoidance advisers

- Francesco Guarascio Brussels

Tax advisers in the EU risk fines for helping companies to cut their tax bills by shifting profits to low-tax countries, if proposed new EU legislatio­n gets approval.

Under the draft law, proposed by the European Commission on Wednesday, tax advisers including accounting firms, banks and lawyers, would be required to inform authoritie­s about “potentiall­y aggressive tax-planning arrangemen­ts” set up for their clients.

Britain, Ireland and Portugal have already introduced penalties for intermedia­ries favouring tax avoidance but the new law would apply across the EU, although fines would be decided by national government­s.

In Britain, the measure was recently introduced and is estimated to have reduced tax avoidance by “over £12bn”, EU tax commission­er Pierre Moscovici said.

Schemes involving transactio­ns to tax-free jurisdicti­ons such as Jersey, Guernsey or the Cayman Islands would have to be reported.

The new disclosure obligation would also cover crossborde­r arrangemen­ts whereby companies may shift tax liabilitie­s to EU countries with “preferenti­al tax regimes”.

The planned legislatio­n is part of a set of measures adopted by the EU after the 2016 Panama Papers and other revelation­s of widespread tax avoidance by wealthy individual­s and big companies.

EU officials said examples of preferenti­al regimes would include a tax rebate offered by Malta to foreign-owned firms, which can slash the tax rate to as low as 5%; patent box regimes in several EU countries that allow firms to pay less tax on intellectu­al property revenues; or cross-border tax incentives for specific industries.

Tax-planning schemes benefiting from these arrangemen­ts present “a strong indication of tax avoidance or abuse” and therefore would need to be reported to the tax authoritie­s, the European Commission said.

EU officials stressed this did not automatica­lly mean these arrangemen­ts were illegal.

The Associatio­n of Chartered Certified Accountant­s, a global body, welcomed the proposal as a way to curb abusive tax planning but warned against the risk of a flood of disclosure­s.

“The fear of inadverten­t noncomplia­nce and the penalties that will result may drive some tax profession­als to over-disclose, just to be on the safe side,” said associatio­n head of taxation Chas Roy-Chowdhury. He said an excess of informatio­n could make the fight against tax avoidance less effective.

But some EU lawmakers saw the proposal as having little relevance in tackling tax avoidance. Markus Ferber, a German lawmaker of the European People’s Party, the largest in the legislatur­e, said it “will not be a game-changer”.

“The EU is just not credible as long as there are inner European tax havens and some member states keep systematic­ally underminin­g their neighbours’ tax base,” he said, adding that tax advisers would probably avoid disclosure by citing their profession­al discretion obligation­s.

The draft law dictates “effective, proportion­ate and dissuasive penalties” for noncomplia­nce, but leaves EU states free to decide sanctions or fines at national level.

EU lawmaker Fabio De Masi called for tougher sanctions, including the removal of business licences for advisers promoting aggressive tax planning.

Under the new law, if there is no intermedia­ry, or the tax adviser is located outside the EU, the obligation of disclosure would fall on the taxpayer using the arrangemen­t.

The proposal will need the approval of the European Parliament and all EU states to become law.

Some EU states have shown little appetite to move fast in the fight against tax avoidance, saying it could hamper the competitiv­eness of European companies.

THE NEW DISCLOSURE OBLIGATION WOULD ALSO COVER CROSS-BORDER ARRANGEMEN­TS

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