CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ

THE INFLUENCE OF THE OECD ON EU LEGISLATION

6. Prevention of treaty abuse, 24, 25 7. Permanent establishment status, 26

8.-10. Transfer pricing and intangible assets (3 BEPS actions), 27 11. BEPS data analysis (measures to address potential issues), 12. Mandatory disclosure rules related to aggressive tax planning transactions, 13. Country-by-Country Reporting – examination of transfer pricing documentation rules, 14. Mutual Agreement Procedure – streamlining dispute resolution mechanisms, 28 and 15. Multilateral Instrument (MLI). 29, 30 In the next part of the article, we will examine how each of these measures was reflected in EU secondary law. Nevertheless, it’s worth mentioning that four of these measures were designated as the “ minimum standards of the BEPS project. ” 31 These measures are considered the minimum requirement for implementing tax policy and represent common practices of tax avoidance and ensuring that countries address international taxation under the same conditions. Implementation was planned through national laws to harmonize individual procedures and ultimately contribute to the success of the BEPS project as a whole. 32 As of today, 125 jurisdictions are involved in implementing the BEPS measures, with 250 tax laws or other legal provisions being amended, and 85 countries have signed the from taxation, and regimes allowing deduction of fictitious interest in order to determine whether these regimes have any harmful effects. If the Code of Conduct Group or the FHTP finds that a jurisdiction’s regime is harmful, that jurisdiction is then asked to commit to changing the harmful aspects of the regime or to abolish the regime. Jurisdictions that fail to adopt or comply with the commitment are then proposed for inclusion on the EU list. For more info see: COUNCIL OF THE EU, 2024. Criteria for establishing the EU list of non-cooperative jurisdictions for tax purposes (cit. 2024-02-24). Available online: https://www.consilium.europa.eu/sk/policies/ eu-list-of-non-cooperative-jurisdictions/criteria/. 24 BABČÁK, V. a kol. Daňové úniky a daňové podvody a právne možnosti ich predchádzania (inštitútmi daňového, obchodného a trestného práva). [Tax evasion and tax fraud and legal options for preventing them (by the institutes of tax, commercial and criminal law] UPJS, Košice, 2018, p. 80, ISBN 978-80-8152-661-9. 25 OECD, 2015. Preventing the Granting of Treaty Benefits in Inappropriate Circumstances, Action 6 - 2015 Final Report , OECD/G20 Base Erosion and Profit Shifting Project. Paris: OECD Publishing, 2015. (cit. 2024-02-29). Available online: https://doi.org/10.1787/9789264241695-en. 26 OECD, 2015. Preventing the Artificial Avoidance of Permanent Establishment Status, Action 7 - 2015 Final Report , OECD/G20 Base Erosion and Profit Shifting Project. Paris: OECD Publishing, 2015. (cit. 2024-02-24). Available online: https://doi.org/10.1787/9789264241220-en. 27 For more info see: JOSEPH, A., 2017. Global trading and transfer pricing: application of the transfer pricing methods and OECD BEPS Action Plan 9 to global trading of financial instruments by MNE groups in the financial services sector. University of Cape Town, Faculty of Commerce Department of Finance and Tax. 28 OECD, 2015. Making Dispute Resolution Mechanisms More Effective, Action 14 – 2015 Final Report , OECD/ G20 Base Erosion and Profit Shifting Project. Paris: OECD Publishing, 2015. (cit. 2024-03-01). Available online: https://doi.org/10.1787/9789264241633-en. 29 OECD, 2015. Developing a Multilateral Instrument to Modify Bilateral Tax Treaties, Action 15 - 2015 Final Report , OECD/G20 Base Erosion and Profit Shifting Project. Paris: OECD Publishing, 2015. (cit. 2024-03-01). Available online: https://doi.org/10.1787/9789264241688-en. 30 Currently, there are 102 countries that are signatories to the MLI. 31 Measure 5, 6, 13 and 14. 32 MOSQUERA VALDERRAMA, I., 2020. Policy Note: The Study of the BEPS 4 Minimum Standards as A Legal Transplant: A Methodological Framework. In: Intertax, 48. Ed., n. 8., 2020, pp. 719–732, Available online: https://kluwerlawonline.com/journalarticle/Intertax/48.8/TAXI2020067.

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