BEPS Developments in Direct Taxes in Light of the EU VAT Treatment of Shareholding and Financing Activities

Abstract

In the Base Erosion and Profit Shifting (BEPS) era, direct taxes such as corporate income tax and withholding tax increasingly require taxpayers to align shareholding and financing activities with economic reality. As a result, it is expected that such activities will more often be performed by entities that also have ‘regular’ operating activities. For VAT, shareholding activities may be considered noneconomic activities and financing activities are typically exempt from VAT, with both activities therefore potentially leading to a limitation of the input VAT recovery right. As entities with regular operating activities are expected to incur more costs (which may be subject to VAT), any VAT recovery limitation resulting from non-economic or VAT exempt activities may have more impact for such entities. The shift towards economic reality in direct taxes can therefore lead to an increase in irrecoverable VAT. This article discusses the treatment of shareholding and financing activities under the EU VAT Directive in light of current developments in direct taxes such as the OECD BEPS project and the ‘Danish cases’ issued by the Court of Justice of the European Union (CJEU). The authors use an example of a multinational group to illustrate that developments in direct taxes may indirectly lead to adverse VAT consequences. The article provides taxpayers, their advisors, and policy makers with recommendations from a VAT perspective in light of the changes in direct taxes. The authors also recommend that the interaction between direct taxes and VAT receives more attention in the legislative process, especially in the context of further European harmonization. VAT, BEPS, anti-abuse, VAT recovery, economic reality, PPT, Multilateral Instrument, Danish cases, economic activity, Brexit