Combating tax fraud and evasion: EU Commission sets out concrete measures

Minimum sanctions for tax crimes, a cross-border tax identification number, an EU tax-payer’s charter and stronger common measures against tax havens and aggressive tax planning. These are just some of the concrete ideas that the Commission put forward in June 2012 to improve the fight against tax fraud and evasion in the EU.

A. Why does the Commission think there is a need for it and what steps have been taken so far?
Every year, an estimated €1 trillion in public money is lost in the EU due to tax evasion and avoidance. Member states suffer a serious loss of revenue, and a dent in the efficiency and fairness of their tax systems. Some businesses find themselves at a competitive disadvantage compared to those that find ways to avoid paying their fair share. The cross border nature of tax evasion and avoidance, along with member states’ concerns to maintain competitiveness, make it very difficult for purely national measures to have the fully desired effect. Tax evasion is a multi-facetted problem requiring a multi-pronged approach, at national, EU and international level.

In March 2012, the 27 EU heads of state asked the Commission to develop ideas and solutions to improve the fight against tax fraud and tax evasion. In April, the European Parliament also called for urgent action in this area. As a first response, the Commission
adopted a communiqué in June 2012 outlining how tax compliance could be improved, and announced the preparation of an action plan.
The action plan was set up in December 2012 and contains over 30 measures to be developed now and in years to come. In the understanding of the European Commission it will help to increase the fairness of the tax systems of the EU member states and secure much needed tax if all 27 EU member states cooperate.

As a starting point, member states are urged to use the tools already at their disposal. They should apply EU rules on administrative cooperation and information exchange properly.
These include the revision of the EU Savings Tax Directive, a negotiating mandate to update the existing EU savings taxation agreements with Switzerland and other European third countries, and a quick reaction mechanism to fight VAT fraud.

In the short term, EU measures will include a taxpayers’ code to improve compliance, and standardised forms for the exchange of information. The Commission will review the anti-abuse provisions in the Directives on Parent-Subsidiary, Mergers and Interest and Royalties.
In the medium and long term, measures will include an EU Tax Identification Number (TIN), an EU tax web portal, guidelines for tracing money flows and possibly common sanctions for tax offences.

Another new focus lies in avoiding aggressive tax planning. Aggressive tax planning is when individuals or companies exploit legal technicalities of a tax system or mismatches between national tax systems with deliberate intent to minimize the taxes they pay. For example, aggressive tax planners may “treaty shop”, using the DTCs between different countries to escape taxation in any of these countries. Aggressive tax planning usually follows the letter of the law, but does not respect the spirit of the law. It tends to stretch the interpretation of what is “legal” to the maximum extent, and minimize the taxes paid by the “planner” to a level below what could be seen as a fair share.

List of measures foreseen in the EU Action Plan:

1. Better use of existing instruments and Commission initiatives to be pursued:
   a. new framework for administrative cooperation
   b. Closing saving taxation loopholes: adopt amendments to the savings taxation directive and give a negotiating mandate to seek corresponding changes to the existing savings taxation agreements with Switzerland, Andorra, Monaco, Liechtenstein and San Marino
   c. Sign and approve the draft EU/Liechtenstein agreement on anti-fraud and tax cooperating matters and give a negotiating mandate to open similar negotiations with Andorra, Monaco, San Marino and Switzerland
   d. quick reaction mechanism in the field of VAT
   e. optional application of the VAT reverse charge mechanism
   f. EU VAT forumsd
2. New Commission initiatives:
   a. recommendation regarding measures intended to encourage third countries to apply minimum standards of good governance in tax matters
   b. recommendation on aggressive tax planning
   c. creation of a platform of tax good governance
   d. improvements in the area of of harmful business taxation and related areas
   e. TIN on EUROPA portal
   f. standard forms for the exchange of information in the field of taxation: implementing regulation of Directive 2011/16/EU on administrative cooperation in the field of taxation
3. Future initiatives: actions to be undertaken in the short term (2013):
   a. revision of the parent subsidiary directive (2011/96/EU)
   b. review of the anti-abuse provision in EU legislation
   c. Promote the standard of automatic exchange of information in international forums and the EU IT tools.
   d. a European taxpayer`s code
   e. greater cooperation with other law enforcement bodies
   f. Promote the use of simultaneous controls and the presence of foreign officials at audits.
   g. Obtain authorization from the Council to start negotiations with third countries for bilateral agreements on administrative cooperation in the field of VAT.
4. Future initiatives: actions to be undertaken in the medium term (by 2014):
   a. Develop computerized formats for automatic exchange of information.
   b. use of an EU Tax Identification Number (TIN)
   c. Rationalise IT instruments.
   d. guidelines for tracing money flows
   e. enhancing risk management techniques and in particular compliance risk management
   f. Extend EUROFISC to direct taxation.
   g. Create a one-stop shop approach in all member states.
   h. developing motivational incentives including voluntary disclosure programs
   i. Develop a tax web portal.
   j. Propose alignment of administrative and criminal sanctions.
   k. Develop an EU Standard Audit File for Tax (SAF-T).
5. Future initiatives: actions to be undertaken in the medium term (beyond 2014):
   a. methodology for joint audits by dedicated teams of trained auditors
   b. Develop mutual direct access to national data bases.
   c. Draft a single legal instrument for administrative cooperation for all taxes

B. As part of its concerted drive against tax evasion and avoidance, the European Commission set up a new platform for tax good governance in May 2013. The platform will monitor member states’ progress in tackling aggressive tax planning and clamping down on tax havens, in line with the recommendations presented by the Commission last year. The aim is to ensure that real and effective action is taken by member states to address these problems, within a coordinated EU framework. The platform will be composed of a wide cross-section of interested parties – national tax authorities, European Parliament, businesses, academics, NGOs and other stakeholders. The first meeting of the platform has been scheduled for 10th June, 2013.

C. Ahead of the European Council meeting on 22nd May, 2013, the European Commission published its contribution for combating tax fraud and evasion. This paper focuses both on the reforms that member states must undertake to fight against tax fraud and evasion and what still needs to be agreed upon and implemented at EU level.

The EU has devised a set of tools to improve the ability of member states to fight tax fraud and tax evasion. This comprises EU laws (on improved transparency, the exchange of information and administrative cooperation), coordinated actions recommended to member states (for example on aggressive tax planning and tax havens) and country specific recommendations on strengthening the fight against tax fraud as part of the European Semester of economic governance.

The priority in the Commission’s contribution is for member states both to make the necessary improvements to their national systems, as well as to make full use of the European tools, and to implement what has been agreed on in a thorough and coordinated way.

What needs to be done at national level?

• At national level, in the context of the European Semester, member states should implement the country specific recommendations addressed to them in order to face the challenge of improving tax governance. Measures to improve tax compliance and promote more efficient tax administration include
  • developing a compliance strategy and targeting efforts against tax evasion
  • the extension of the use of third-party information
  • the preparation of pre-filled tax returns, and

• concerted efforts to reduce the size of the shadow economy by for example criminalising the purchaser of undeclared work, the use of mandatory electronic payments for purchases over a certain threshold or the use of monetary incentives to declare income (tax deductions).

• Member states should fully implement the Commission’s recommendations on tax havens and aggressive tax planning, which relate in particular to the identification of third countries that do not apply minimum standards of good governance in tax matters; the provision of technical assistance to third countries willing to comply; and measures to avoid double non-taxation.
• The Commission is ready to provide targeted support and technical assistance to any member state that needs it to strengthen its tax system against evasion, and improve tax collection. In Greece, for example, the Task Force for Greece, together with experts from member states, is actively engaged in helping build a more robust tax system to deliver quality revenues, and positive results are already beginning to emerge.

What needs to be done at EU level?

• The EU Savings Taxation Directive (in force since 2005) lays down the principle of the automatic exchange of information. In 2008, the Commission proposed to close loopholes in the directive by extending it to investment funds, pensions, innovative financial instruments and payments made through trusts and foundations. The directive is pending adoption by the Council.
• EU agreements on savings with Switzerland, Andorra, Monaco, Liechtenstein and San Marino (in place since 2005) aim at ensuring a level playing field between the EU and its neighbours. In July 2011, the Commission asked the Council for a mandate to open negotiations with these five countries, to adapt the scope of these agreements to the revised EU Savings Directive. The Council has not yet agreed to grant the mandate.
• The Administrative Cooperation Directive in the field of direct taxation provides for the automatic exchange of information in five new areas from 2015 (income from employment, directors’ fees, life insurance products not covered by other EU instruments, pensions, and ownership of and income from immovable property) based on available information.
• The Regulation on administrative cooperation in the field of VAT has been in force since 2012. The EU is a pioneer in this field, which governs the way tax and customs offices in member states collect and share information with other member states on VAT. It also enhances the databases on VAT-taxable persons and their intra-Community transactions to detect and reduce tax fraud in this area.
• The new Directive on mutual assistance for the recovery of taxes, in force since 2010, improves the capacity of member states in cross border collection of taxes. It permits enforcement in another member state and the reinforcement of the possibility to take precautionary measures in another member state to recover the claims that are not settled promptly by taxpayers.
• The Quick Reaction Mechanism to fight VAT fraud was proposed by the Commission in July 2012. Carousel fraud (“missing intra-community trader fraud”) is one of the most prevalent types of cross-border fraud in the area of VAT. The mechanism proposed by the Commission provides for an emergency procedure enabling the Commission to authorise member states to apply an exception to the general rule in intra-community transactions within a month of discovering a large VAT fraud.
• The VAT Reverse Charge Directive was proposed by the Commission in 2009 and partially adopted in March 2010 (on CO2 allowances only). The adoption of the remaining part of the proposal for a Directive would allow member states to apply the reverse charge mechanism to supplies of several types of goods and services for which carousel fraud is already known to affect several member states.
• The Commission’s action plan to further strengthen the fight against evasion and avoidance (December 2012) includes more than 30 measures covering individuals, companies and uncooperative jurisdictions. As part of the action plan, the Commission launched a Platform for Tax Good Governance, bringing together governments, NGOs and business to steer the implementation of the action plan.
• The Commission has proposed legislation to update the framework on anti-money- laundering and fund transfers (February 2013) to reinforce the EU’s existing rules by extending the scope and addressing new threats and vulnerable areas. The proposal also introduces clearer mechanisms for the identification of beneficial owners including those behind entities. The proposal is pending before the European Parliament and the Council.
• New EU rules on bank capital requirements will increase transparency regarding the operations of multi-national banks. Financial institutions will have to disclose information on 6 new items including turn-over, profits and taxes in each EU country and in each third country in which they have operations. EU legislation on alternative investment fund managers also contains important conditions on tax compliance and cooperation that must be fulfilled before a fund can be marketed in the EU.
• Recently agreed changes to the EU accounting rules will introduce a system of Country-by-Country Reporting (CBCR). It will cover privately-owned large companies in the EU or companies listed in the EU that are active in the oil, gas, mining or logging sectors. Reporting taxes, royalties and bonuses paid by a multinational to a host government is an important step forward for tax transparency as well as for the fight against corruption and money laundering.

What needs to be done at EU level?

• The Council should adopt the proposed revision to the Savings Taxation Directive and give the Commission mandates to negotiate equivalent improvements in the existing agreements with neighbouring countries.
• The draft EU-Liechtenstein anti-fraud and tax cooperation agreement and the mandate to open negotiations with other EU neighbouring countries should also be adopted by the Council.
• Pending measures to counter VAT fraud, in particular the Quick Reaction Mechanism, should also be adopted by the Council.
• In line with the Commission’s action plan on strengthening the fight against tax fraud and tax evasion of December 2012, member states should prioritise concrete follow-up.
• The principle of the automatic exchange of information within the EU should be extended to all relevant types of income. The European Commission will present a legislative proposal to amend the EU Directive on Administrative Cooperation in order to expand the scope of the automatic exchange of information at EU level. The aim will be to ensure the automatic exchange of information on dividends, capital gains and other income from 2015, the date at which automatic exchange will also become the EU norm for income from employment revenues, directors’ fees, pensions, life insurance and revenue from immoveable property. The proposal will also address the current option that tax administrations have of not reporting information that is not “available”. In parallel, and as a matter of urgency, work will be taken forward at the technical level by extending to all relevant forms of income the current standard IT formats and secure communication channels used to exchange information.

D. At the same time the German Bundesrat requests  the term for criminal prosecution in the case of tax fraud to be extended to up to ten years.
The particularity is that the term of criminal prosecution in the case of tax fraud should become extended to any kind of tax fraud and not as before only in serious cases of a large extent of tax fraud (up to € 50,000 a year and more).

In justification it also cites the need to combat tax fraud and evasion.
Of course the increasing  number of cases of tax fraud in connection with foreign investments detected since 2010 is one of the main reasons the German Bundesrat is requestingthe term for criminal prosecution in any case of tax fraud to be lengthened.

And on the basis of the measures planned by the EU it is to be expected that the number of cases of tax fraud detected  will continue to increase.

So, anyone needing to correct their tax declarations in Germany should do this now!