欧盟委员会发布实施支柱二最低税指令草案

来源：欧盟委员会网站

编译：思迈特财税国际税收服务团队

12月20日，OECD发布《应对经济数字化税收挑战——支柱二全球反税基侵蚀规则立法模板》（以下简称《支柱二立法模板》），标志着支柱二方案设计基本完成。《支柱二立法模板》由包容性框架所有成员国辖区的代表共同制定，并以协商一致的方式获得通过，是细化和落实OECD/G20税基侵蚀和利润转移包容性框架《关于应对经济数字化税收挑战双支柱方案的声明》的重要成果，也是各国立法实施全球反税基侵蚀（简称GloBE）规则的重要基础。对此欧盟委员会迅速响应，并于12月22日发布了实施支柱二最低税指令草案（以下简称“指令草案”），该指令草案旨在确保国际税收更加公平、透明和稳定，也标志着欧盟将率先与OECD关于BEPS包容性框架达成具有里程碑意义的国际税收制度改革。

背景

最低税率作为支柱二的关键要素，旨在确保大型跨国企业集团就其在每个辖区经营产生的所得支付最低水平的税款。当某一辖区的有效税率低于最低税率时，就可对在该辖区内产生的利润征收补足税，从而确保跨国企业在当今数字化和全球化的世界经济背景下，无论在哪里运营获利都需缴纳公平份额的税款。一旦该多边公约的执行方面达成一致，欧盟委员会还将在2022年就征税权利的重新分配提出建议。

指令草案的适用范围

指令草案适用于包括金融行业在内的任何大型集团，无论是国内还是国际，集团的合并财务报表中收入总和超过7.5亿欧元，并且最终母公司或子公司位于欧盟成员国。

哪些实体将豁免？根据OECD《支柱二立法模板》规定，作为跨国企业集团母公司实体的政府实体、国际或非营利组织、养老基金或投资基金将不属于指令草案适用的范围，因为该实体正在履行政府/准政府职能，或者是为了确保基金或养老金不会面临双重征税风险。

如果跨国企业集团所在的非欧盟辖区未实施全球最低税率，该怎么办？

如果跨国企业集团所在的非欧盟辖区未实施全球最低税率，则欧盟成员国将适用“低税支付规则”，该规则是收入纳入规则的补充规则。这意味着，如果跨国企业集团的有效税率低于最低水平且不征收任何补足税，则欧盟成员国可对位于该辖区内的跨国企业集团实体征收部分补足税，该补足税的金额将基于员工工资和有形资产账面价值的公式确定。

指令草案的排除规则

指令草案纳入OECD《支柱二立法模板》的微利排除规则，即排除收入较低的辖区以减轻其遵从成本。这意味着，当某个辖区的收入和利润低于某个最低金额时，即使有效税率低于15%，也不会对在该辖区内的利润征收补足税。

指令草案还纳入OECD《支柱二立法模板》的公式化经济实质排除（实质经营活动固定回报的扣除）规则，即根据每个辖区有形资产和人员工资产生的固定回报计算的一个收入金额。该金额为(i)位于该辖区的有形资产账面价值的5%及(ii)在该辖区开展实质经营活动的人员工资成本的5%之总和。同时该公式化经济实质排除规定了10年的过渡期，过渡期从人员工资的10%排除比例和有形资产的8%排除比例开始，随着时间的推移，这些排除比例下降到5%。

同时，指令草案对国际航运取得的收入进行排除，因为该行业受特殊税收规则的约束。国际航运的资本密集性、盈利水平和较长的经济生命周期等特点导致许多辖区为该行业引入替代税收的制度。

指令草案与OECD《支柱二立法模板》有什么不同？

欧盟委员会的指令草案跟OECD《支柱二立法模板》大体一致，但进行了必要的调整，其主要区别在于，指令草案适用范围不仅包括跨国企业集团，还包括纯境内的企业集团，而OECD《支柱二立法模板》的适用范围仅包括跨国企业集团。欧盟委员会之所以对适用范围进行调整，是为了遵守欧盟的基本自由，特别是企业设立自由。

下一步工作

该指令草案需要得到欧盟理事会一致同意，而欧洲议会和欧洲经济和社会委员会也需要对该指令草案征求意见并发表意见。到2023年底，欧盟委员会还将发布欧盟营业税的新框架，这将降低欧盟成员国企业的征管难度，消除税收障碍，并在单一市场中创造更加优质的商业环境。

了解详情，请查阅以下NEWS或欧盟委员会官网：

NEWS 1：Minimum corporate taxation

SOURCE：欧盟委员会官网 Dec. 22 2021

The proposal delivers on the EU’s pledge to move extremely swiftly and be among the first toimplement the recent historic global tax reform agreement, which aims to bring fairness, transparency and stability to the international corporate taxframework.

The proposal follows closely the international agreement and sets out how the principles ofthe 15% effective tax rate – agreed by 137 countries – will be applied inpractice within the EU. It includes a common set of rules on how to calculatethis effective tax rate, so that it is properly and consistently applied across the EU.

Where does this proposal stem from?

Minimum corporate taxation is one of the two work streams agreed by members of the Organization for Economic Co-operation and Development (OECD)/G20 Inclusive Framework, a working group of 141 countries and jurisdictions who concentrated on theTwo-Pillar Approach to address the tax challenges of the digital economy. They worked on a global consensus-based solution to reform the international corporate tax framework, which culminated in a global agreement among 137 jurisdictions in October 2021. The discussions focused on two broad topics: Pillar 1, the partial re-allocation of taxing rights, and Pillar 2, the minimumlevel of taxation of profits of multinational enterprises.

As pledged, the EuropeanCommission is now implementing Pillar 2 of the global agreement, making globalminimum effective corporate taxation a reality for large group companieslocated in the EU.

To whom do therules apply?

The proposed rules will apply to any large group, bothdomestic and international, including the financial sector, with combined financial revenues of more than €750 million a year,and with either a parent company or a subsidiary situated in an EU MemberState.

Which entitiesdo not fall under the scope of the rules?

In line with the OECD/G20 Inclusive Framework agreement, government entities, international ornon-profit organisations, pension funds or investment funds that are parententities of a multinational group will not fall within the scope of theDirective on the OECD Pillar 2. This is because such entities are usually exempt from domestic corporate income tax in order to preserve a specific policy outcome. This may be because the entity is carrying out governmental/quasi-governmental functions, or to ensure that funds or pensions do not risk double taxation.

How will the effective tax rate be calculated?

The effective tax rate is established per jurisdiction by dividing taxes paid by the entities inthe jurisdiction by their income. If the effective tax rate for the entities ina particular jurisdiction is below the 15% minimum, then the Pillar 2 rules aretriggered and the group must pay a top-up tax to bring its rate up to 15%. Thistop-up tax is known as the ‘Income Inclusion Rule’. This top-up appliesirrespective of whether the subsidiary is located in a country that has signedup to the international OECD/G20 agreement or not.

Who will make the calculations?

In the OECD/G20 Inclusive Framework agreement, a transparent way of calculating the effectivetax rate was agreed by all 137 countries involved. This is reflected in theproposed Directive. The calculations will be made by the ultimate parent entityof the group unless the group assigns another entity.

What happens ifa group is based in a non-EU country where the minimum tax rate is not enforced?

If the globalminimum rate is not imposed by a non-EU country where a group entity is based,Member States will apply what is known as the ‘Undertaxed Payments Rule’. Thisis a backstop rule to the primary Income Inclusion Rule. It means that a MemberState will effectively collect part of the top-up tax due at the level of theentire group if some jurisdictions where group entities are based tax below theminimum level and do not impose any top-up tax. The amount of top-up tax that aMember State will collect from the entities of the group in its territory isdetermined via a formula based on employees and assets.

Are there any exceptions?

The rules providefor an exclusion of minimal amounts of income to reduce the compliance burden.This means that when the revenues and the profits in a jurisdiction are under acertain minimum amount, then, no top-up tax will be charged on the profits ofthe group earned in this jurisdiction, even when the effective tax rate isbelow 15%. This is known as the de minimis exclusion.

Moreover,companies will be able to exclude from the top-up tax an amount of income thatis at least 5% of the value of tangible assets and 5% of payroll. This iscalled a ‘substance carve-out’.

The policyrationale for a substance carve-out is to exclude a fixed amount of incomerelating to substantive activities like buildings and people. This is a commonaspect of corporate tax policies worldwide, that seeks to encourage investmentin economic substance by multinational enterprises in a particularjurisdiction. This exclusion also focuses the rules on excess income, such asthat related to intangible assets, which is more susceptible to tax planning.

The agreementexcludes from the scope income earned in international shipping, as thisparticular industry is subject to special tax rules. Special features such asthe capital-intensive nature, the level of profitability and long economic lifecycle of international shipping have led a number of jurisdictions to introducealternative taxation regimes for this sector. The widespread availability ofthese alternative tax regimes means that international shipping often operatesoutside the scope of corporate income tax.

These exclusionsare not going to distort the calculations of the effective tax rate.

Is there atransition period when it comes to the substance carve-out?

For the first 10 years, there is a transitional rule where the substance carve-out starts off at8% of the carrying value of tangible assets and 10% of payroll costs. Fortangible assets, the rate declines annually by 0.2% for the first five yearsand by 0.4% for the remaining period. In the case of payroll, the rate declinesannually by 0.2% for the first five years and 0.8% for the remaining period.

What are thenext legislative steps?

Member States willneed to unanimously agree in Council. The European Parliament and EuropeanEconomic and Social Committee will also need to be consulted and give theiropinion.

It is important tonote that EU members of the OECD Inclusive Framework are already supporting theglobal agreement that the Commission proposal is implementing. The only EUMember State that is not a member of the Inclusive Framework, and as such hasnot formally committed to the agreement, is Cyprus. However, we expect Cyprusto support the Directive.

NEWS 2：Fair Taxation: Commission proposes swift transposition of the international agreement on minimum taxation of multinationals

SOURCE：欧盟委员会官网 Dec. 22 2021

Today, the European Commission has proposed a Directive ensuring a minimum effective taxrate for the global activities of large multinational groups. The proposal delivers on the EU's pledge to move extremely swiftly and be among the first toimplement the recent historic global tax reform agreement , which aims tobring fairness, transparency and stability to the international corporate tax framework.

Today's proposal follows closely the international agreement and sets out how the principles ofthe 15% effective tax rate – agreed by 137 countries – will be applied inpractice within the EU. It includes a common set of rules on how to calculatethis effective tax rate, so that it is properly and consistently applied acrossthe EU.

Executive Vice-President for an Economy that Works for People, Valdis Dombrovskis, said:“By moving quickly to align with the far-reaching OECD agreement, Europe isplaying its full part in creating a fairer global system for corporatetaxation. This is particularly important at a time when we need to increasepublic financing for fair sustainable growth and investment and meet publicfinancing needs too – both for tackling the pandemic's aftermath and drivingforward the green and digital transitions. Putting the OECD agreement on minimum effective taxation into EU law will be vital for fighting tax avoidance and evasion while preventing a ‘race to the bottom' with unhealthy tax competition between countries. It is a major step forward for our fair taxation agenda.”

Commissioner for Economy, Paolo Gentiloni, said: “In October of this year, 137 countriessupported a historic multilateral agreement to transform global corporate taxation, addressing longstanding injustices while preserving competitiveness.Just two months later, we are taking the first step to put an end to the taxrace to the bottom that harms the European Union and its economies. Thedirective we are putting forward will ensure that the new 15% minimum effectivetax rate for large companies will be applied in a way that is fully compatiblewith EU law. We will follow up with a second directive next summer to implementthe other pillar of the agreement, on the reallocation of taxing rights, oncethe related multilateral convention has been signed. The European Commissionworked hard to facilitate this deal and I am proud that today we are at thevanguard of its global rollout.”

The proposed rules will apply to any large group, both domestic and international, with a parentcompany or a subsidiary situated in an EU Member State. If the minimum effective rate is not imposed by the country where a low-taxed company is based,there are provisions for the Member State of the parent company to apply a“top-up” tax. The proposal also ensures effective taxation in situations wherethe parent company is situated outside the EU in a low-tax country which doesnot apply equivalent rules.

In line with the global agreement, the proposal also provides for certain exceptions. To reducethe impact on groups carrying out real economic activities, companies will beable to exclude an amount of income equal to 5% of the value of tangible assetsand 5% of payroll. The rules also provide for an exclusion of minimal amountsof profit, to reduce the compliance burden in low risk situations. This meansthat when the average profit and revenues of a multinational group in ajurisdiction are below certain minimum thresholds, then that income is nottaken into account in the calculation of the rate.

Background

Minimum corporate taxation is one of the two work streams of the global agreement - the other isthe partial re-allocation of taxing rights (known as Pillar 1). This will adaptthe international rules on how the taxation of corporate profits of the largestand most profitable multinationals is shared amongst countries, to reflect thechanging nature of business models and the ability of companies to do businesswithout a physical presence. The Commission will also make a proposal on thereallocation of taxing rights in 2022, once the technical aspects of themultilateral convention are agreed.

Next steps

The Commission's tax agenda is complementary to, but broader than just the elements covered bythe OECD agreement. By the end of 2023, we will also publish a new frameworkfor business taxation in the EU, which will reduce the administrative burdenfor businesses working across Member States, remove tax obstacles and create amore business-friendly environment in the Single Market.

NEWS 3：Questions and Answers on Minimum corporate taxation

SOURCE：欧盟委员会官网  Dec. 22 2021

What did the European Commission propose?

The EuropeanCommission has proposed a Directive to ensure a global minimum effective taxrate of 15% for large groups operating in the European Union. The proposaldelivers on the EU's pledge to move extremely swiftly and be among the first toimplement the historic global tax reform agreement reached by the OECD/G20Inclusive Framework on Base Erosion and Profit Shifting (BEPS). The proposalsets out how the effective tax rate will be calculated per jurisdiction, andincludes clear, legally binding rules that will ensure large groups in the EUpay a 15% minimum rate for every jurisdiction in which they operate.

Where does this proposal stem from?

Minimum corporate taxation is one of the two work streams agreed by members of the Organization for Economic Co-operation and Development (OECD)/G20 Inclusive Framework, aworking group of 141 countries and jurisdictions who concentrated on theTwo-Pillar Approach to address the tax challenges of the digital economy. They worked on a global consensus-based solution to reform the international corporate tax framework, which culminated in a global agreement among 137 jurisdictions in October 2021. The discussions focused on two broad topics:Pillar 1, the partial re-allocation of taxing rights, and Pillar 2, the minimumlevel of taxation of profits of multinational enterprises.

As pledged, the European Commission is now implementing Pillar 2 of the global agreement,making global minimum effective corporate taxation a reality for large group companies located in the EU.

To whom do the rules apply?

The proposed rules will apply to any large group, both domestic and international, including the financial sector, with combined financial revenues of more than €750 million ayear, and with either a parent company or a subsidiary situated in an EU Member State.

Which entities do not fall under the scope of the rules?

In line with the OECD/G20 Inclusive Framework agreement, government entities, international or non-profit organisations, pension funds or investment funds that are parent entities of a multinational group will not fall within the scope of the Directive on the OECD Pillar 2. This is because such entities are usually exempt from domestic corporate income tax in order to preserve a specificpolicy outcome. This may be because the entity is carrying out governmental/quasi-governmental functions, or to ensure that funds or pensionsdo not risk double taxation.

How will the effective tax rate be calculated?

The effective tax rate is established per jurisdiction by dividing taxes paid by the entities in the jurisdiction by their income. If the effective tax rate for the entities ina particular jurisdiction is below the 15% minimum, then the Pillar 2 rules aretriggered and the group must pay a top-up tax to bring its rate up to 15%. This top-up tax is known as the ‘Income Inclusion Rule'. This top-up applies irrespective of whether the subsidiary is located in a country that has signed up to the international OECD/G20 agreement or not.

Who will make the calculations?

In the OECD/G20 Inclusive Framework agreement, a transparent way of calculating the effective tax rate was agreed by all 137 countries involved. This is reflected in the proposed Directive. The calculations will be made by the ultimate parent entity of the group unless the group assigns another entity.

What happens ifa group is based in a non-EU country where the minimum tax rate is not enforced?

If the global minimum rate is not imposed by a non-EU country where a group entity is based,Member States will apply what is known as the ‘Under taxed Payments Rule'. This is a back stop rule to the primary Income Inclusion Rule. It means that a Member State will effectively collect part of the top-up tax due at the level of the entire group if some jurisdictions where group entities are based tax below the minimum level and do not impose any top-up tax. The amount of top-up tax that a Member State will collect from the entities of the group in its territory is determined via a formula based on employees and assets.

Are there any exceptions?

The rules providefor an exclusion of minimal amounts of income to reduce the compliance burden.This means that when the revenues and the profits in a jurisdiction are under acertain minimum amount, then, no top-up tax will be charged on the profits ofthe group earned in this jurisdiction, even when the effective tax rate is below 15%. This is known as the de minimis exclusion.

More over,companies will be able to exclude from the top-up tax an amount of income thatis at least 5% of the value of tangible assets and 5% of payroll. This iscalled a ‘substance carve-out'.

The policy rationale for a substance carve-out is to exclude a fixed amount of incomerelating to substantive activities like buildings and people. This is a common aspect of corporate tax policies worldwide, that seeks to encourage investmentin economic substance by multinational enterprises in a particularjurisdiction. This exclusion also focuses the rules on excess income, such asthat related to intangible assets, which is more susceptible to tax planning.

The agreement excludes from the scope income earned in international shipping, as thisparticular industry is subject to special tax rules. Special features such asthe capital-intensive nature, the level of profitability and long economic lifecycle of international shipping have led a number of jurisdictions to introducealternative taxation regimes for this sector. The widespread availability ofthese alternative tax regimes means that international shipping often operatesoutside the scope of corporate income tax.

These exclusionsare not going to distort the calculations of the effective tax rate.

Is there a transition period when it comes to the substance carve-out?

For the first 10years, there is a transitional rule where the substance carve-out starts off at8% of the carrying value of tangible assets and 10% of payroll costs. For tangible assets, the rate declines annually by 0.2% for the first five years and by 0.4% for the remaining period. In the case of payroll, the rate declines annually by 0.2% for the first five years and 0.8% for the remaining period.

Is the EU proposal different from the OECD Model Rules?

The Commission proposal follows closely the international agreement with the necessary adjustments to ensure compliance with EU law and without any gold plating.

The Directive will therefore adjust the scope to also include purely domestic groups, while the scope of the OECD Pillar 2 is limited to multinational (MNE) groups and aparent entity subjects only its foreign subsidiaries to the income inclusionrule. This departure from the OECD Model Rules is necessary in order to comply with the EU fundamental freedoms, specifically the freedom of establishment.

The OECD Model Rules allow jurisdictions the option to apply a qualifying domestic minimum tax. The Commission proposal will also allow EU Member States to exercise the option to apply a domestic top-up tax to low taxed domestic subsidiaries. This option will allow the top-up tax due by the subsidiaries of the multinational group to be charged locally, within the respective Member State, and not at thelevel of the parent entity.

What happens if certain countries outside the EU fail to apply the OECD rules?

Within the OECD/Inclusive Framework, the rules have been agreed under what is known as a‘common approach'. This would mean that Inclusive Framework members are not required to adopt the rules, but if they choose to do so, they will have to implement and administer the rules in a way that is consistent with the agreed outcome under Pillar 2. It also means that Inclusive Framework members will have to accept that other members apply the rules. In practice, multinational groups with subsidiaries in countries that operate a rate below the agreed minimum rate will ultimately also have to face the consequences of Pillar 2. This is because the rules test the effective tax rate per jurisdiction and apply a top-up tax to companies in the low-tax jurisdictions. As a result of either the Income Inclusion Rule or the Under Taxed Payments Rule, a MemberState will collect the top-up tax due at the level of the entire group if somejurisdictions where entities are based impose tax below the minimum level anddo not impose any domestic top-up tax.

In other words,failing to apply the Pillar 2 rules will not protect jurisdictions from effectively being subject to tax at least at the agreed minimum rate.

How does this fit in the wider Commission agenda?

The Commission hasa broad agenda to ensure fairness and transparency in corporate taxation. The Commission Communication on Business taxation for the 21st century adopted on18 May 2021 sketches out a comprehensive vision for business taxation in the EU, taking the EU forward to deliver an EU business tax framework fit to meet the challenges of the 21st century and geared towards a well-functioning Single Market. The measures announced in this Communication together with the measures announced in the Tax Action Plan for fair and simple taxation adopted in July 2020 will complement the directives proposed today and contribute to more tax transparency in the EU. Moreover, by 2023, the Commission will propose a new framework for business taxation in the EU (BEFIT) to create a more robust butalso business-friendly environment in the Single Market.

What are the next legislative steps?

Member States will need to unanimously agree in Council. The European Parliament and European Economic and Social Committee will also need to be consulted and give their opinion.

It is important tonote that EU members of the OECD Inclusive Framework are already supporting the global agreement that the Commission proposal is implementing. The only EU Member State that is not a member of the Inclusive Framework, and as such hasnot formally committed to the agreement, is Cyprus. However, we expect Cyprus to support the Directive.