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SkatteMail 2016, uge 13

Kære Læser

Denne uges SkatteMail er stadig ramt af den lavere aktivitet pga. påskeferien. Af nyheder fra Danmark kan nævnes at skatteministeren den 30. marts 2016 har fremsat lovforslag (L 149) om at (gen)indføre særregler for beskatning af medarbejderaktier.

God læselyst

Flemming L. Bach

Indhold

Artikler og interessante links
Permanent establishment and home office
How to claim tax deductions for previous income years
Personbiler (hvidpladebiler)
Hvad kontrollerer skat i 2016?
Musikbranchen i nyt fælles fodslag med SKAT
Some Twenty-Seven Years after . . .
Kieback: When Schumacker Emigrates . . .
Dividend Withholding Taxes after Miljoen, X and Société Générale
The TFEU Eligibility of Non-EU Investment Funds Subjected to Discriminatory Dividend Withholding Taxes
Tax Law of the Eurasian Economic Union: Substance and Ways of Using of the European Experience
International Juridical Double Non-taxation and State Aid
Høring af styresignal om fortolkningen af skatteforvaltningslovens § 33
Værdi af fast ejendom i dødsboer
Exchange of Information. An Analysis of the Scope of Article 26 OECD Model and Its Requirements: In Search for an Efficient but Balanced Procedure
Conflicts of Qualification and Interpretation: How Should Developing Countries React?
The Interplay between the OECD Recommendations of Actions 2 and 3 Regarding Hybrid Structures
Challenging Prejudice to Creditors Involving Abuse of Separate Identities in Tax Matters; a Dutch Approach
Countries' Aggressive Tax Treaty Planning: Brazil's Case
Nyt om skatteregler for medarbejderaktier

Afgørelser
Spørgsmål om, hvorvidt et aftaleforhold mellem klager og en udenlandsk virksomhed var omfattet af reglerne om arbejdsleje.

Nyt fra EU

Lovstof
Nyt fra Lovtidende

Nyt fra Folketinget
Nye lovforslag
Nye dokumenter vedrørende lovforslag
Nye dokumenter vedrørende almindelig del

SELECT * FROM Appeller WHERE(([SkatteraadChanged] >= '20160328' AND [SkatteraadChanged] <= '20160403') OR ([LSRChanged] >= '20160328' AND [LSRChanged] <= '20160403') OR ([ByretChanged] >= '20160328' AND [ByretChanged] <= '20160403') OR ([LandsretChanged] >= '20160328' AND [LandsretChanged] <= '20160403') OR ([HojesteretChanged] >= '20160328' AND [HojesteretChanged] <= '20160403')) ORDER BY AppelId DESC

Artikler og interessante links

BDO

Permanent establishment and home office

According to a recent ruling by the National Tax Tribunal, an employee’s work in Denmark from his home office did not constitute a permanent establishment in Denmark for the foreign employer.

BDO

How to claim tax deductions for previous income years

It is time to prepare your Danish tax return for 2015, but how should you proceed if you forgot to declare deductible expenses on your tax return for 2014 or previous years?

Beierholm

Personbiler (hvidpladebiler)

Denne information er en beskrivelse af de skatte-, moms- og afgiftsmæssige konsekvenser ved anvendelse af personbiler (hvidpladebiler).

Dansk Revision

Hvad kontrollerer skat i 2016?

Igen i år har SKAT offentliggjort, hvor de vil sætte ind med kontrolindsatser med offentliggørelsen af Kontrolaktiviteter 2016. I år består kontrolindsatsen af 106 aktiviteter der har fokus på at dæmme op for svindel med moms, skatter og afgifter.

Deloitte

Musikbranchen i nyt fælles fodslag med SKAT

Dansk Live, Dansk Musiker Forbund, Dansk Artist Forbund og Deloitte har samarbejdet med SKAT for at skabe klarhed om reglerne for musikhonorarer.

EC Tax Review

Some Twenty-Seven Years after . . .

Authors: Michel Aujean

EC Tax Review

Kieback: When Schumacker Emigrates . . .

When taxing a non-residents income, a source state does not have to grant tax correctives on account of civil status or family responsibilities, applicable for its own residents, unless the income is the almost exclusive taxable income of the non-resident. This socalled Schumacker-principle, although dating from 1995, still raises questions. This article critically analyses the judgment of the Court of Justice in the Kieback-case, where the Court had to decide about its application for the deduction of costs, linked to a foreign immovable property, in case of a non-resident earning all his taxable income during a part of a tax year in the source state and then moving to a third state. The court insisted that the Schumacker-principle can include costs which, according to the tax legislation of the source state, are in particular linked to foreign income, the possibility of discrimination has to be considered exclusively from a tax perspective, but the comparison can be made taking into account an entire tax year. Based on these premises the Court concluded that the foreign negative income did not have to be taken into account in the source state.

EC Tax Review

Dividend Withholding Taxes after Miljoen, X and Société Générale

The judgment in the cases Miljoen, X and Société Générale is the latest of various judgments regarding dividend taxation and withholding taxes. The ECJ has confirmed its line of reasoning on many issues and given insights on its understanding of other ones. Concerning the deductibility of non-residents’ directly linked expenses, which have to be granted a deduction according to previous case law, the ECJ held that the direct link must exist to the actual payment of the income. Moreover, the Court confirmed its previous case law according to which residents and non-residents find themselves in comparable situations regarding the tax amount levied by the source state. The possibility of neutralizing different treatment by the source state under application of a double tax treaty was again affirmed by the ECJ. In the particular cases, however, it could not be clarified whether such neutralization could be achieved. A unilateral neutralization by the residence state was not accepted by the ECJ. Regarding neutralization in subsequent years, i.e., a carry-forward, the ECJ did not give a judgment due to the hypothetical question.

EC Tax Review

The TFEU Eligibility of Non-EU Investment Funds Subjected to Discriminatory Dividend Withholding Taxes

Non-EU or third-country investment funds may be subjected to final withholding taxes on their dividend income earned in various Member States within the EU. Such dividend withholding taxes may be discriminatory in nature given that EU or Member State investment funds may not be subjected to them. This raises the question whether, and to what extent, third-country investment funds could access the fundamental freedoms (like the free movement of capital) – enshrined in TFEU – in order to gain some measure of tax relief from discriminatory dividend withholding taxes.

EC Tax Review

Tax Law of the Eurasian Economic Union: Substance and Ways of Using of the European Experience

The study considers principal features of the Treaty on Eurasian Economic Union (hereinafter – EAEU) in the light of modern international tax law, its legal nature, its place and functions in the regulation of Eurasian integration. The study describes the main features of tax law under the EAEU Treaty as the foundation treaty of two kinds: establishing international organization for integration (EAEU) and the economic and legal space (the Customs Union and the Common economic space). The important aspect of the proposal is the comparative study of development of tax law in the EAEU and the European Union (EU) as a model of integration which has already shown great results during decades.

EC Tax Review

International Juridical Double Non-taxation and State Aid

Authors: Daniel S. Smit, LLM, Associate professor, Tilburg University, Tax advisor EY Amsterdam, the Netherlands.

FSR - danske revisorer

Høring af styresignal om fortolkningen af skatteforvaltningslovens § 33

FSR har for nærværende ikke kommentarer hertil.

Hulgaard Advokater

Værdi af fast ejendom i dødsboer

Højesteret har i marts 2016 i en principiel dom taget stilling til retningslinjerne for værdiansættelse af fast ejendom i dødsboer.

Intertax

Exchange of Information. An Analysis of the Scope of Article 26 OECD Model and Its Requirements: In Search for an Efficient but Balanced Procedure

In this article, the authors examine the requirements contained within Article 26 OECD Model. The focus lies on the scope of the article and the principles of relevance, subsidiarity, sovereignty and reciprocity, and the limitations relating to trade secrets and information contrary to public policy.

Intertax

Conflicts of Qualification and Interpretation: How Should Developing Countries React?

From October 27 to 31, 2014, the tenth session of the United Nations (UN) Committee of Experts on International Cooperation in Tax Matters was held at the Palais des Nations in Geneva. During this meeting, it was, inter alia, discussed whether the OECD’s approach regarding conflicts of qualification and conflicts of interpretation shall be incorporated into the UN MC and the respective commentary. Whereas the Committee agreed on adopting the OECD’s interpretation of Articles 23 A(1) and 23 B(1) OECD MC (partly referred to as the “new approach”), some members argued that “including paragraph 4 of Article 23A of the OECD Model in the UN Model would not be desirable” or even “detrimental to the interests of the source state”. This article takes up these considerations by analyzing the OECD’s approach regarding conflicts of qualification and conflicts of interpretation in the light of the UN MC’s attempt to generally favor “retention of greater so called ‘source country’ taxing rights under a tax treaty – the taxation rights of the host country of investment – as compared to those of the ‘residence country’ of the investor”.

Intertax

The Interplay between the OECD Recommendations of Actions 2 and 3 Regarding Hybrid Structures

On 5 October, the Organisation for Economic Co-operation and Development (OECD) submitted a package of measures for the BEPS project (‘Base Erosion and Profit Shifting’) for a comprehensive and coordinated reform of international tax regulations. The final reports relating to all fifteen action points have now been issued. It is clear that coordination among the individual measures is necessary in order to implement efficient preventive tools in the fight against harmful tax activities of internationally operating companies. The OECD is addressing this fact in an open and direct manner. The postulated coordination is necessary in particular to ensure that the fundamental goal of avoiding double taxation is not undermined. Whether such coordination with respect to hybrid structures is happening, especially in the areas of Actions 2 (Hybrid Mismatch Arrangements) and 3 (Controlled Foreign Corporation (CFC) Rules), is subject to this article.

Intertax

Challenging Prejudice to Creditors Involving Abuse of Separate Identities in Tax Matters; a Dutch Approach

Separateness of identities implies that (juristic) persons are exclusively liable for own debts. This concept, however, could result in prejudice to creditors or might even lead to such prejudice involving abuse of separate identities of (juristic) persons. When a director (A), with the help of a juristic person (B) who is affiliated to a tax debtor-juristic person (C), frustrated recovery against (C), the tax collector in the Netherlands has the power to invoke several means of legal redress. The tax collector could hold (A) liable for specific tax debts, on the basis of Article 36 Tax Collection Act 1990. However, if the claim cannot be recovered from (A), the tax collector would prefer to hold (B) liable. Normally, in such cases, liability provisions in the Tax Collection Act 1990 do not offer a sufficient solution. The tax collector could, however, on the basis of the so-called “open system” (Article 124 of Book 4 of the General Administrative Law Act) invoke “piercing the corporate veil”, in order to extend liability to (B). The author makes an assessment of the question as to whether “piercing the corporate veil” for tax collection purposes in the Netherlands is “lawful” within the meaning of Article 1 of Protocol No. 1 to the ECHR (the peaceful enjoyment of one’s property).

Intertax

Countries' Aggressive Tax Treaty Planning: Brazil's Case

In the international taxation sphere, countries are channelling efforts and resources in the fight against ‘aggressive tax planning’ by enterprises and individuals. However, it is not unusual that countries will also use aggressive tax schemes to increase tax revenues, through measures that exceed internationally accepted standards. Brazil might be considered such a violator, at least from a moral standpoint. The Country has been creating tax-like contributions to tax transactions with non-residents beyond the thresholds established in tax treaties. The objective of this article is to analyse whether discussions regarding morality in taxation can also be applied to State behaviours, demonstrating that shortcomings in ethics are not just the privilege of taxpayers.

PwC

Nyt om skatteregler for medarbejderaktier

Den 30. marts 2016 har skatteministeren fremsat lovforslag (L 149) om at (gen)indføre særregler for beskatning af medarbejderaktier. Lovforslaget er i store træk lig med det forslag, der blev sendt i høring i februar, og nedenstående opsummering af reglernes indhold er således uændret i forhold til, hvad vi tidligere har oplyst om.