EU Council approves new anti-abuse clause for Parent Subsidiary Directive

On 9 December 2014, the European Council approved a second amendment to the Parent-Subsidiary Directive (recast) (2011) with the aim of preventing tax avoidance and aggressive tax planning by corporate groups.

The first amendment adopted in July 2014 were aimed at hybrid loan arrangements, these are financial instruments that have characteristics of debt in one country and equity. Corporate groups can use such hybrid loan arrangements to benefit from double non-taxation : in one country the payment is tax deductible interest while that same payment qualifies as dividend in the other country that is tax exempt under the Parent Subsidiary Directive

The second amendment adopted now means that a binding anti-abuse clause will be introduced as a “de minimis” allowing Member States to apply stricter national rules as long as they meet minimum EU requirements .

The anti-abuse clause is aimed at preventing misuses of the Directive and to ensure a greater consistency in its application within different Member States. Governments must refrain from granting the benefits of the Directive to an arrangement, or a series of arrangements, that are not “genuine” and have been put in place to obtain a tax advantage, while not reflecting economic reality.

The amending Directive will be adopted at a forthcoming Council session without further discussion and the Member States will have until 31 December 2015 to transpose this amendment of the Directive.

Author: Marc Quaghebeur

Marc Quaghebeur is a Belgian tax lawyer with Cabinet DAVID specialising in international tax issues and cross border estate planning. He is a member of the Brussels Bar and the Society of Trust and Estate Practitioners. He

Leave a Reply

Your email address will not be published. Required fields are marked *