EU Member States today failed to reach an agreement on amendments to the hybrid mismatch rules contained in the Anti-Tax Avoidance Directive (Council Directive (EU) 2016/1164 of 12 July 2016).
According to compromise text (2 December 2016), the proposed amendments—to take the form of a directive to amend the Anti-Tax Avoidance Directive—would have extended the scope of the rules to hybrid mismatches between EU Member States and third countries, as well as some mismatches that were not fully covered, such as certain types of hybrid permanent establishments and financial instrument mismatches. A new provision on reverse hybrid entities was also included.
In addition, the directive to amend the Anti-Tax Avoidance Directive was intended to bring the rules into line with the recommendations of the OECD pursuant to the final report for base erosion and profit shifting (BEPS) Action 2.
From comments made during the debate on the proposals by EU finance ministers, it appeared that a number of last minute changes were made to the draft text of the amendments, including changes regarding the carve-out provisions. A number of representatives of various EU Member States indicated that they were not in a position to approve the revised text, and needed more time to consider and in some instances to obtain approval from their national parliaments. The proposed text provided that EU Member States would need to implement the amendments by 31 December 2018 and apply the provisions as from 1 January 2019.
A separate agenda item—the EU Code of Conduct group on business taxation—was presented for endorsement by the ECOFIN meeting. This included guidelines on the issuance of tax rulings by EU Member States. The guidelines cover the process of granting a ruling, the term of a ruling and subsequent audit/checking procedure, and also publication of rulings that are of general application to the affairs of other taxpayers in similar circumstances.
Read a December 2016 report prepared by the KPMG member firm in the Netherlands: No agreement yet on EU Anti-Tax Avoidance Directive 2: hybrid mismatches with third countries
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