The agreed changes will require multinational groups or standalone undertakings with a total consolidated revenue of at least €750m, in that and the previous financial year, whether headquartered within the European Union or not, to publicly disclose the corporate income tax they pay in each EU Member State plus in each of the countries that are either on the EU list of non-cooperative jurisdictions for tax purposes (‘the EU’s black list’) or listed for two consecutive years on the list of jurisdictions that do not yet comply with all international tax standards but have committed to reform (the EU’s grey list’).
This Directive aims to make corporate tax in the European Union more transparent by introducing the same reporting obligations for European businesses and non-European multinational companies doing business in the European Union through their branches and subsidiaries. While some commentators believe the proposal does not go far enough (particularly regarding aggregated vs. disaggregated information), the proposal nevertheless is a significant step towards multinationals’ tax information becoming available for public scrutiny.
The Tax Package adopted by the European Commission on 15 July 2020 had as its core objectives the generation of fair, efficient and sustainable taxes. Tax good governance both within and outside the European Union was seen as the basis for meeting the objective of fair taxation. Transparency around taxes was believed to be a key to building this good tax governance foundation. And so, achieving greater transparency around taxes, particularly taxes paid by multinationals, is one of the EC’s key tax policy objectives.
The European Parliament and Council of the EU also rank corporate tax transparency highly as a deterrent to tax avoidance and evasion. The Code of Conduct Group (CoCG) (which sits under the Council of the EU) recently updated the 'blacklist' and the 'grey list'. The Parliament and Council see transparency as a key criteria when judging a country's tax regime.
The following are important factors in the overall context of increasing transparency requirements:
Under the Directive, a group parent governed by the national laws of an EU Member State or not, with at least €750m consolidated revenues generally would be within the scope if it has at least one large or medium-sized EU entity. The definition of large or medium-sized entity is in accordance with Article 3 of the Accounting Directive (being a company that meets two of the following three conditions: a balance sheet greater than €4m, net turnover greater than €8m, or an average number of employees exceeding 50 (or a branch which meets that turnover threshold)). The disclosure requirement provides an exclusion when the subsidiaries and branches are located in the same Member State as the group parent.
Revenues, for the purpose of the Directive, are defined as the net turnover per IFRS for undertakings applying this standard, and net turnover otherwise.
The Accounting Directive already requires mining and forestry companies to report on the taxes, royalties and bonuses that they pay worldwide, while the EU's Capital Requirements Directive IV (CRD IV) requires credit institutions and investment firms to publish certain tax and financial data for each country in which they operate. The proposed Directive includes provisions to avoid the need for double-reporting by taxpayers already subject to the existing requirements.
The report should include the following details:
To ensure that the disclosure requirement is proportional and to manage the risk of making sensitive and competitive information public, the information to be disclosed is limited only to what is required to enable effective public scrutiny. The above list of required information, being a complete and final list, would help in managing the administrative burden on taxpayers in determining what information to report. In anticipation of potential scrutiny between amounts disclosed under E and F above, the report may include a narrative explaining the material discrepancies that lead to differences between income tax accrued and paid.
If the relevant entity relies on publishing CbCR as submitted to its relevant tax authority, it would be deemed to have included the information listed above. However, if it seeks to rely instead on a GRI-compliant report, it needs to ensure that it has included the information as set out above as well as meeting the GRI standard.
Where a number of affiliated undertakings of an ultimate parent undertaking carry on activities in the same tax jurisdiction, the information attributed to that tax jurisdiction would be the aggregate information of all affiliated undertakings and branches in that tax jurisdiction.
Acknowledging that the EU list of non-cooperative jurisdictions is revised twice a year, guidance has been provided as to which of the EU’s blacklist and which of the EU’s grey list countries would be taken into account for disclosure purposes. Jurisdictions must have been on the EU’s blacklist (Annex I to the list of non-cooperative jurisdictions) on 1 March of the financial year for which the report is prepared to be regarded as a non-cooperative jurisdiction for the purposes of this proposed Directive. Similarly, jurisdictions must have been included in Annex II to the EU grey list on 1 March of the financial year for which the report is prepared. Grey-listed countries must have been listed in Annex II on 1 March for two consecutive years for the purpose of this Directive.
The report would usually have to be on the parent's website and refer to one EU Member State where the branch or subsidiary has also made it available. This would remove the requirement for the non-EU parent to make a report available from each European branch and subsidiary. If an EU subsidiary is making the report, it would have to be on the website of that subsidiary or that of an affiliate. If an EU branch is making the report, it would have to be on the website of the branch, its home office or an affiliate. A Member State may ignore this website requirement if the report is filed on the State's corporate register and is accessible free of charge within the European Union (provided the relevant website references that location). The report should be made accessible at no charge in at least one of the EU's official languages within 12 months after the balance sheet date. The report should be available for at least five years.
The responsibility for making the required information available in the prescribed manner rests with the group's ultimate parent undertaking in the first instance where that parent operates within the European Union. Where the ultimate parent undertaking is outside the EU, but it has subsidiaries or branches active within the EU, these subsidiaries or branches should publish and make accessible a report prepared by the ultimate parent undertaking. If they do not have access to this report, they should request from the parent sufficient information to be able to prepare and disclose their own report of their income tax information. If the parent does not make available all relevant information to the subsidiary or branch, the undertaking should use the information available and note in the report that the parent has not made available all information to them.
The public disclosures, where these are made in a report by the subsidiary undertaking or branch, must follow a common EU template and be presented in a machine readable electronic format. There may be associated implementation challenges in preparing a machine-readable common electronic format until such time as the European Commission sets up a European Single Access Point (ESAP).
It is recognised that publicly disclosing data to be included in the report on income tax information could, in certain cases, be seriously prejudicial to an undertaking's commercial position, as competitors could draw significant conclusions about its current activities. Therefore, undertakings should be able to defer disclosing certain information for a limited number of years, provided they clearly disclose the deferral along with a reasoned explanation in the report. The Directive provides that Member States may allow that any information thus omitted shall be made public in a later report no more than five years from the date of its original omission. Information pertaining to the EU’s blacklist and the relevant EU grey list countries will not be subject to this deferral mechanism.
The Directive suggests that, during transposition, the Member State would decide on the conditions under which an undertaking might avail of this deferral. It would seem necessary that the undertaking would need to be able to demonstrate that disclosure of the information would be ‘seriously prejudicial’ to the commercial position of the undertakings to which it relates.
Member States are required to ensure that the report and any corresponding statements are published by the relevant undertaking(s) in the prescribed format. They shall ensure that members of the administrative, management and supervisory bodies of the ultimate parent undertaking or the standalone undertakings have collective responsibility for ensuring that the disclosure requirements are met in line with the Directive. This obligation also extends to Member States to ensure that subsidiary undertakings and branches that are publishing their own Public CbCR have collective responsibility for ensuring that, to the best of their knowledge and ability, the report on income tax information is drawn up, published and made accessible in a manner that is consistent with or in accordance with the Directive.
Member States could require undertakings that are required to produce audited financial statements to have the statutory auditors state in the audit report whether an undertaking was required to draw up a report on income tax information, and if so, whether this report was published.
Penalties for non-compliance with the Directive disclosure requirements, as transposed by the Member States in their domestic legislation, will apply (in line with the obligation under Article 51 of the Accounting Directive to impose penalties). The Accounting Directive does not specify what the applicable penalties should be, rather it specifies that the penalties shall be “effective, proportionate and dissuasive” and the national transposing legislation shall “take all the measures necessary to ensure that those penalties are enforced”.
The European Commission will review the application of the Directive four years after the transposition date, including a review of compliance with and impact of the Directive, a review of the deferral mechanism under the competition safeguard and a review of the aggregation basis of presenting information for third countries.
The compromise text will be subject to a vote by the European Parliament’s plenary meeting in July, and then must be officially adopted by Council.
The Directive would enter into force on the twentieth day following its publication in the Official Journal of the European Union. Member states have 18 months from the date of entry into force to transpose the Directive into domestic legislation.
See the illustration of the expected timeline from the Directive's adoption to the deadline date for transposition by Member States and ultimately, the reporting deadlines relevant to in-scope entities.
The first period for required disclosure would depend on the undertakings' financial year end. Reporting would be required for financial periods beginning on or after one year after the deadline date of transposition. Reporting is required within 12 months of the financial year end, as stated on the undertakings' balance sheet.
Member States may transpose the Directive earlier than the transposition deadline date and may provide for an earlier effective date. This may impact the first reporting deadline for in-scope groups.
Illustration of implementation timeline
Complying with the additional Public CbCR requirements under the Accounting Directive should be considered in the context of broader consideration of a group's overall tax strategy and tax governance. Given that the overall tax strategy and ESG objectives are important to boards, tax directors should prepare to raise the proposed changes with their boards at an early stage, and certainly well in advance of the group's required deadline to disclose information.
Groups should also carefully consider how their CbC data may be interpreted. With advances in data analytics, interested stakeholders, including investors and NGOs, can analyse the data and compare it with other publicly available data. In order to build an explanation of any potential issues associated with increased public disclosure regarding their tax position, groups should start to develop their tax (transparency) strategy now.
Director, Tax Function Design and Tax Transparency Leader, PwC Switzerland
Tel: +41 58 792 47 16