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NON RESIDENTS TAXATION

EU: DIRECT TAXATION . Directives:Parent-subsidiaryInterests and Royalties: transitional periodMergers, SavingsJoint Transfer Pricing Forum (JTPF)MAPArbitrationDocumentationAPA. INTERNAL LEGISLATION (I). Recent changes: corporation taxTransfer pricing rulesNew regulations on transfer pricin

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NON RESIDENTS TAXATION

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    1. NON RESIDENTS TAXATION Carolina del Campo Azpiazu Deputy Director General for Non Residents Taxation

    2. EU: DIRECT TAXATION Directives: Parent-subsidiary Interests and Royalties: transitional period Mergers, Savings Joint Transfer Pricing Forum (JTPF) MAP Arbitration Documentation APA

    3. INTERNAL LEGISLATION (I) Recent changes: corporation tax Transfer pricing rules New regulations on transfer pricing: methods and ALP principles Penalties Documentation limitations for SME: transactions with associated enterprises, less than 100.000€ Penalties: a maximum is established APA

    4. INTERNAL LEGISLATION (II) Recent changes: Non residents taxation Taxable base: net vs gross MAP regulation Exemptions: CIV resident in EU (Directive) Pension funds resident in EU Royalties: finalisation of transitional period Public (and Private) debt

    5. OECD: RECENT WORKS (I) Global Forum Exchange of information Agreements At least 12 White/grey list Monitoring

    6. OECD: RECENT WORKS (II) 2008 Update Arbitration clause New paragraph 5 to Article 25: very similar to Arbitration Convention Two years Arbitration comission Does not need to waive its rights before Courts Different content for the AC DTA?

    7. OECD: RECENT WORKS (III) 2008 Update Article 7: Report on the attribution of profits to permanent establishment Attribution of free capital Symmetry Existing DTA? REIT: new proposal for future DTA

    8. OECD: RECENT WORKS (IV) 2010 Update New Article 7: ALP principle: only in relation to the attribution of profits to the permanent establishment Notional income Elimination of double taxation: similar to 9.2 DTA?

    9. OECD: RECENT WORKS (V) 2010 Update CIV Persons, residents, beneficial owner Entitlement to Treaty benefits Different ways: Directly Equivalent beneficiaries In the name of Pilot/Trace

    10. DTA POLICY (I) Spanish Tax havens list DTA with tax havens Exchange of information Article Very important Protocol Antiabuse rules Rest of the Treaties: Comprehensive EOI Article Renegotiations: necessary

    11. DTA POLICY (II) 73 in force (Colombia, Moldavia, El Salvador, Jamaica, Serbia y Trinidad y Tobago, ...)       9  ratified by Spain (Bosnia-Herzegovina, Costa Rica,  Kazajstán, Kuwait, Nigeria, Senegal, Uruguay, Luxemburg (Protocol) y Belgium (Protocol)) 8 initialled ( Albania, Armenia, Byelorussia, Georgia, Namibia y Syria Barbados)  14  in negotiation (Azerbaijan, Bahrain, Cabo Verde, Libya, Qatar, Pakistan, Ukraine, Dominican Republic, Guatemala, Jordan, Panama, Cyprus, Hong Kong y Oman) 3 Renegociaciones: Germany, Canada, UK Terminated: Dinamarca

    12. MAIN DTA PROBLEMS Certificates of residence Taxation of services: Article 14 vs Article 7 Withholding tax on the gross CIV, partnerships, trust Transfer pricing and Article 9 Definition of permanent establishment Royalties (software)

    13. DISPUTE RESOLUTION MECHANISMS (I) Article 25.1: MAP to guarantee the taxation in accordance with the Convention Not obliged to reach an agreement (arbitration) Article 9.2 All DTA Problems with old treaties Time limits Three year rule Article 25.3: exchange of letters

    14. DISPUTE RESOLUTION MECHANISMS (II) New regulation in relation to MAP and EU Arbitration Organizes the internal process for MAP: Competent Authority Time periods Rights and obligations of taxpayers: documentation… Mode of implementation Guarantees that MAP will reach a solution (when possible) within a reasonable period of time

    15. DISPUTE RESOLUTION MECHANISMS (III) Suspension in the collection of taxes Before: it could only be suspended under Court approval Now: it can be suspended when an MAP is initiated, but only when the Court cannot do it. Other issues: interest payments

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