Coordinamento fiscale e doppie deduzioni internazionali nel quadro dell’iniziativa BEPS

In 2013 the OECD launched an unprecedented initiative in the field of international taxation focusing its activity and attention on a new emerging global issue: the erosion of the taxable bases in qualified tax jurisdiction, and the subsequent shifting of profits in fa-vour of others. This (apparently) new phenomenon is originated by the possibility given to the busi-nesses in general (and to MNEs – Multi National Enterprises - in particular) to make the most of domestic rules and of Double Taxation Conventions in order to allocate the prof-its they make in the most favourable jurisdiction. This strategy should not be confused with tax evasion or avoidance. The two latter situations are currently tackled by specific provisions in different tax systems ranging from tailor-made provisions to GAARs (- General Anti Avoidance Rules - where applicable) to the Abuse of Law doctrine. Base erosion, on the other hand, is a broader phenomenon: it occurs when a business scheme leads to remarkable savings in taxation via the proper application of domestic rules or DTCs (Double Taxation Conventions). In this respect, Academic literature has been warning policy makers and stakeholders from the risks of possible double non-taxation induced by the overlap of DTCs with domestic rules that has ben changed trough years. Traditionally, the OECD intervention in this respect has always maintained one prior-ity: the prevention of (international) double taxation via bilateral instruments (Treaties) inspired by the Model delivered and interpreted consistently with the Commentary also drafted by the OECD itself. The explosion of the global financial crisis and the subsequent increased need for an ever increasing amount of tax revenue by many States belonging to the OECD created however the most appropriate momentum for a change of perspectives. Following the historical momentum, OECD urged for the necessity of a shift of para-digm in international taxation: time has (allegedly) come for a move from the prevention of double taxation to the implementation of an actual taxation of MNEs and cross border profits. In this respect, DTCs, the Model and the Soft law should be interpreted in a way to make actual taxation of cross border income as a certain result, preventing therefore double non-taxation. Ambitious and bold as it is, the BEPS initiative started in 2013 with a number of doc-uments and some as 15 separate actions addressing specific and qualified situations orig-inating base erosion in respective tax jurisdictions: the issue of tax coordination and dou-ble deductions are two of them, with the first being actually a remedy (also) to the sec-ond. Double deduction occurs in cases in which a cost may be deducted in both tax juris-dictions by the same legal entity (a company or a group of companies, if group relief is allowed and the group of company is considered as a legal entity) thus determining and illogic, unfair and ultimately unacceptable reduction of the overall burden. The OECD Report in this respect lists a remarkable number of different cases and sit-uations in which this outcome may be achieved by the taxpayer, without falling into any case of avoidance or abuse. Despite the considerable technical differences, with a rea-sonable margin of appreciation it could be concluded that most of them are determined by legal mismatches of qualification between the two legal jurisdictions and concerning either the flow of income or the legal entity of the case. In this respect asymmetries may concern a legal entity qualified as transparent by a jurisdiction and not by the other, or a specific income considered as an interest paid in the source State (thus deductible for tax purposes) and as dividend in the residence State (thus enjoying a full – or partial – exemption from taxation. Similar asymmetries may also concern the notion of PE (Permanent Establishment) and the ways and means to tax profits attributable to it in the different tax jurisdictions: on the top of that, the existence (or not) of the PE in the view of the two different tax ju-risdictions may also lead to double non-taxation or double deduction of costs. Action n. 2 of the BEPS Report (on Double deductions) describes in details the differ-ent situations listed above and further ways and many o reach the same result without falling into a case of Abuse of law or tax avoidance, with some of the situations depicted that may also potentially be of some interest for the Italian legal system. As a matter of fact, in a recent past, the Italian Supreme Court decided some cases in a way to open a remarkable leeway for base erosion (or profit shifting) by the taxpayer , interpreting a DTC in a way which was perhaps not entirely consistent with the OECD guidelines applicable ratione temporis. The new BEPS initiative should help to prevent from other decisions to be taken in the same direction. While discussion on the BEPS rages on in every OECD Country (and beyond) the case of Italy is however peculiar for purely domestic reasons as well. The Italian Parliament approved very recently an Act (n° 23 passed in 2014) empow-ering the Government to reform the fiscal system making in more simple, accessible, less burdensome for the taxpayer. In this respect it also provided specific guidelines to be re-spected by the Government in its future regulatory activity (with a quasi-legislative effect). It’s noteworthy to read at Article 12 of the aforementioned Act that the Government will have to draft the future decrees “… consistently with the recommendations by supra-national organizations …”. Reference is made of course (and first of all) to the EU soft law, but there’s no literal or legal element excluding the BEPS initiative from that refer-ence. This would arguably be the first case in the recent tax history of the Country in which such a large reference is made to non domestic guidelines by the Italian Parlia-ment, allowing the Government to transform policy guidelines and soft law into legally binding provisions of the Italian law. Even if it’s still too early at this stage to assess whether the Government shall pick the opportunity and make use of this possibility or not, nonetheless it remains in line of prin-ciple the relevance of the opportunity, the impact of the OECD-inspired global order and, eventually, the attempt of making a sort of lex mercatoria fisci which has still to be however drafted in details.