Taxation of European Companies at the Time of Establishment and Restructuring (PDF)
Issues and Options for Reform with regard to the Status Quo and the Proposals at the Level of the European Union
(Sprache: Englisch)
In 2004, the first legal entity applicable in all EU member states, the so-called European Company or Societas Europaea (SE), was introduced. Especially, the taxation of hidden reserves is still a major concern for companies wanting to reorganize themselves...
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In 2004, the first legal entity applicable in all EU member states, the so-called European Company or Societas Europaea (SE), was introduced. Especially, the taxation of hidden reserves is still a major concern for companies wanting to reorganize themselves across borders. Christiane Malke analyzes the current issues resulting from the entry into an SE, the transfer of seat of an SE from one EU member state to another one and the exit out of an SE in the 27 member states of the EU taking into consideration the Merger Directive. Based on existing deficiencies the author provides reform approaches that consider changes to the national law of the member states, to EU law as well as to the proposals provided by the European Commission regarding the introduction of a Common (Consolidated) Corporate Tax Base.
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3 Taxation of European Companies during the time of restructuring in an ideal environment (S. 16-17)As has been pointed out above, a Societas Europaea may not be established by individuals via a contribution of cash or assets but solely by reorganization of entities already existing. Furthermore, a feature of the SE is the possibility to transfer the registered office from one country to another without losing the legal entity. Thus, in the following, the focus is on generally accepted principles which need to be observed in such transactions from a tax perspective.
In this chapter an ideal environment is considered. An ideal environment may be defined as an area with a uniform tax system in which the transaction takes place, thus an area without borders. Such an environment would be provided if the transaction occurs within one country. Taking the aim of the European Company Statute into consideration, it should also be provided within the internal market of the European Union.
3.1 Guiding tax principles
3.1.1 Neutrality and efficiency
Taxes are not explicitly mentioned in the European Company Statute. It is only stated that member states may not discriminate SEs against domestic corporations for unjustified reasons or disproportionately restrict SEs when they are formed or transfers their registered offices. This implies that such reorganizations may not be hindered, which also needs to be respected with regard to taxes.79 The generally accepted principle in this context is the principle of tax neutrality. Accordingly, taxes shall not influence decisions. Ideally, in a world with taxes decisions are made in the same manner as in a world without taxes. Thus decisions would be made only with regard to profitability or other corporate aspects.80 There are two ways to put tax neutrality into more precise terms. The microeconomic perspective looks at the effects of taxation on the decision makers of single
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businesses (decision neutrality).
Accordingly, on the one hand, one can analyze whether current tax systems are neutral and, on the other hand, how neutral tax systems should look like.82 Such an approach can be justified by the following reasons. One argument is that tax planning and information costs are avoided since decisions are not influenced by taxes.83 Another argument is that the risk of incorrect business decisions is minimized since the factor taxes does not need to be taken into account.
From a macroeconomic perspective, taxation shall provide allocation and production efficiency and thus avoid the misuse of resources from the point of view of the economy as a whole since this would cause a loss of welfare, i.e. an excess burden.85 Although decision neutrality and allocation and production efficiency are put into concrete terms differently, a neutral system is the basis for an efficient system. Only if decisions at the level of the entrepreneurs are not distorted by taxes, may an optimal allocation of resources within the whole economy take place.86 Neutrality and efficiency are also part of the requirements established by the European Commission in the context of company taxation within the internal market.
Accordingly, on the one hand, one can analyze whether current tax systems are neutral and, on the other hand, how neutral tax systems should look like.82 Such an approach can be justified by the following reasons. One argument is that tax planning and information costs are avoided since decisions are not influenced by taxes.83 Another argument is that the risk of incorrect business decisions is minimized since the factor taxes does not need to be taken into account.
From a macroeconomic perspective, taxation shall provide allocation and production efficiency and thus avoid the misuse of resources from the point of view of the economy as a whole since this would cause a loss of welfare, i.e. an excess burden.85 Although decision neutrality and allocation and production efficiency are put into concrete terms differently, a neutral system is the basis for an efficient system. Only if decisions at the level of the entrepreneurs are not distorted by taxes, may an optimal allocation of resources within the whole economy take place.86 Neutrality and efficiency are also part of the requirements established by the European Commission in the context of company taxation within the internal market.
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Autoren-Porträt von Christiane Malke
Dr. Christiane Malke completed her doctoral studies at the Department of Business Administration and Taxation II at the University of Mannheim under supervision of Prof. Dr. Christoph Spengel.
Bibliographische Angaben
- Autor: Christiane Malke
- 2010, 2010, 266 Seiten, Englisch
- Herausgegeben: Christiane Malke
- Verlag: Gabler, Betriebswirt.-Vlg
- ISBN-10: 3834986550
- ISBN-13: 9783834986559
- Erscheinungsdatum: 07.05.2010
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