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EU Seeks Input On New Withholding Tax Directive

Monday, October 4, 2021

On September 28, 2021, the European Commission launched a consultation on a proposed Directive that would obligate member states to introduce the same rules regarding withholding tax on dividend and interest payments.

The Directive will also include a system for tax authorities to exchange information and cooperate with each other.

According to the Commission, the Directive aims to improve burdensome withholding tax relief procedures for cross-border investors in the securities market. The changes will primarily benefit cross-border portfolio investors.

As explained in the consultation, when an EU resident makes an investment in securities in another member state, the payments received in return (dividends or interest) are normally subject to a withholding tax in the country of the investment (the source country), at a rate which is often higher than the reduced rate on the basis of an applicable bilateral double tax agreement. Where this applies, in order to eliminate the double taxation, the non-resident investor is then required to submit ex-post a refund claim of the excess tax withheld by the source country.

The Commission noted that the current procedures can be abused, as shown recently by an investigation carried out by a consortium of investigative journalists that reported the existence of an alleged large-scale tax fraud known as "Cum/Ex" scheme and subsequent "Cum/Cum" Scheme in some EU member states, which cost member states billions.

In addition, such withholding tax relief mechanisms for cross-border payments have proved to be lengthy, resource-intensive, and costly for both investors and tax agencies, the Commission said. According to the Commission, in some cases, these high costs drive non-resident taxpayers to forego their right to apply for the tax treaty benefits that they are entitled to, thereby leading to double taxation and as a consequence to less attractive net returns than for domestic investments.

The consultation considers three options, namely: improving withholding tax refund procedures to make them more efficient, establishing a fully fledged common EU relief at source system, and/or enhancing the existing administrative cooperation framework to verify entitlement to double tax convention benefits.

Feedback is being sought on the proposals until October 26, 2021.