ICC reaffirms its views on public disclosure of tax data following recent France ruling
The International Chamber of Commerce (ICC) welcomes a ruling announced by the French Constitutional Court last Thursday, that the public disclosure of country-by-country reporting (CbCR) is a disproportionate violation of entrepreneurial freedom.
ICC has consistently responded to calls for public disclosure of tax data, holding that public disclosure of country-by-country tax reports of multinational enterprises would be counterproductive to efficient tax administration. The world business organization has also warned that it would potentially be harmful to the relationship between taxpayers and tax authorities. ICC reiterated this view more recently in response to a European Commission (EC) proposal on CbCR which would require large companies to publish tax data for every European Union jurisdiction in which they operate, together with an aggregated breakdown for their operations in other countries throughout the world.
Following on the heels of the EC proposals, the French Parliament recently adopted a law on transparency. In its Article 137, the law includes provisions for public disclosure of tax data on a country-by-country basis, which would enable the identification of essential elements of an organization’s industrial and commercial strategy. The law was submitted to the French Constitutional Court for consideration. The French Constitutional Court determined that the provisions of Article 137 represent a disproportionate violation of the freedom of enterprise and are therefore contrary to the French Constitution.
Only weeks before this ruling, the Legal Service of the European Council was requested to give a written opinion on the legal basis of the EC proposal for public disclosure of tax data. In its Legal Opinion of 11 November 2016, the Council Legal Service disagreed with the approach of the EC, indicating that the obligations envisaged by the proposal do not fall within the scope of Article 50(2)(g) TFEU (i.e. Accounting). Following the Legal Service, Article 115 TFEU is the only relevant legal basis, because the proposal concerns income tax payments made by MNEs, with the consequence that the proposal would be required to be adopted unanimously by the Council of Ministers.
The relationship between taxpayers and tax authorities should be characterized by openness and trust. Disclosure of tax data would negatively impact this important dynamic.
Christian Kaeser, Global Head of Tax at Siemens and Chairman of the ICC Commission on Taxation said: “The relationship between taxpayers and tax authorities should be characterized by openness and trust. Disclosure of tax data would negatively impact this important dynamic.”
ICC recognizes the role of CbCR as a high-level risk assessment tool for national tax administrations to ensure businesses pay the correct amount of tax – in line with international guidelines set out in the Organisation for Economic Co-operation and Development (OECD) and national tax laws. The disclosure of company data to competent tax authorities, as set out by the G20/OECD countries is recognised as an important instrument to help tax authorities improve their ability to fulfil their task in assessing the tax liabilities of their taxpayers – with the explicit provision that this information remains confidential.
“The recent positions taken by the French Constitutional Court and the European Council Legal Service, reaffirm this view and will hopefully reinforce the need to align with international guidelines, which is imperative for establishing a consistent global landscape,” concluded Mr Kaeser.