Jurisdictional Aspect of the New EU Member States Prof. Dr. Geerten M.M. Michielse Technical Assistance Advisor to the IMF Georgetown University Law Center Washington DC

Basic Issues (“Aqui Communautaire”) Common external tariff (customs duties) Common external tariff (customs duties) Minimum excise duties Minimum excise duties –(alcoholic beverages, tobacco products and petroleum products) VAT (minimum rates: 15% - 5%) VAT (minimum rates: 15% - 5%) Direct taxes Direct taxes –Parent-Subsidiary Directive (90/435/EEC) –Merger Directive (90/434/EEC) –Signatory of Arbitration Convention –State aids and Code of Conduct for Business Taxation Compliance with ECJ Decisions Compliance with ECJ Decisions

Basic Conflict (EU law versus international tax law) EU law EU law –EU residents should be treated as residents of Member State International tax law International tax law –Traditional distinction between residents and nonresidents (including EU residents)

Compliance with ECJ Decisions (based on EU Treaty freedoms) NondiscriminationArt. 12 EU Treaty NondiscriminationArt. 12 EU Treaty Freedom of goodsArt. 28 EU Treaty Freedom of goodsArt. 28 EU Treaty Freedom of employmentArt. 39 EU Treaty Freedom of employmentArt. 39 EU Treaty Freedom of establishmentArt. 43 EU Treaty Freedom of establishmentArt. 43 EU Treaty Free movement of capitalArt. 56 EU Treaty Free movement of capitalArt. 56 EU Treaty

Tax Sovereignty All new EU Members States make the traditional distinction between residents and nonresidents All new EU Members States make the traditional distinction between residents and nonresidents Individuals: place of habitual abode Individuals: place of habitual abode Corporations: Corporations: –effective place of management in Czech Republic –incorporation in Estonia and Hungary –‘legal seat’ in Poland –headquarters base in Slovenia

Freedom of Employment (main issues) Personal allowances (Schumacker case) Personal allowances (Schumacker case) –Poland and Slovenia: comply –Estonia: no allowances –Hungary: credit against tax (liability requirement) –Czech Republic: only basic allowance Deductibility of pension premiums (Bachmann case) Deductibility of pension premiums (Bachmann case) –all countries: limited to resident funds Splitting system (Werner case) Splitting system (Werner case) Special nonresident tax rate (Asscher case) Special nonresident tax rate (Asscher case)

Freedom of Establishment (main issues) Profit determination of permanent establishments (Avoir fiscal and Saint-Gobain case) Profit determination of permanent establishments (Avoir fiscal and Saint-Gobain case) –Czech Republic and Hungary: tax base subject to comparison with resident taxpayers –Estonia: tax event = distribution of profit Group tax treatment Group tax treatment –Poland and Slovenia: only for resident companies

Free Movement of Capital (main issues) Regarding place of investor Regarding place of investor –Estonia, Hungary and Slovenia: exemption for resident corporate shareholders –Czech Republic: exemption for redistribution of domestic source dividends –Poland: no exemption Regarding place of investment Regarding place of investment –Only in Slovenia different treatment: domestic source dividends exempt, foreign source dividends not

Conclusions Need for allowing personal allowances in case nonresidents are earning substantially all or all income in source country Need for allowing personal allowances in case nonresidents are earning substantially all or all income in source country Allowing deduction if premium is paid to fund, resident in another EU Member State Allowing deduction if premium is paid to fund, resident in another EU Member State Tax treatment of pe’s generally according to ECJ decisions Tax treatment of pe’s generally according to ECJ decisions Taxation of dividends (free movement of equity capital) is basically in line with Art. 56 Taxation of dividends (free movement of equity capital) is basically in line with Art. 56