Application of foreign law and practice in domestic tax matters

Karina Furga, Cezary Przygodzki Salans

Host:

Coordinator:
- Karina Furga-Dąbrowska, Partner, Salans, Poland
- Cezary Przygodzki, Counsel, Salans, Poland

Other Speakers:
- Adam Bącal, judge of the Supreme Administrative Court, Poland,
- Mariusz Hołoga, International VAT Manager, ABB, Poland
- Sandra Hazan, Partner, Co-Head of Salans Global Tax Group, France

Workshop description:
Ever experienced difficulties when faced with international investments and transaction schemes involving parties from various countries?

You probably have investigated a number of times whether a particular tax treatment applied abroad can be relied on when dealing with your national tax authorities or, if a dispute ensues, when litigating before national courts.

And yet, despite your experience, there’s sometimes that niggling uncertainty as to which approach national tax authorities will actually take if the outcome of the case depends somehow on foreign law provisions, interpretation of them or decisions of foreign authorities.

Through this workshop Salans will provide a platform for tax experts, academics and practitioners to discuss theoretical and practical aspects relating to these and other issues arising from the application of foreign law and practice in domestic tax matters.

The interactive workshop formula will feature three main speeches given by:
- a renowned judge dealing with cases involving application of EU and international law in domestic tax matters,
- a tax director of an multinational company, who will share practical experience grounded in Central and Eastern European operations, and
- a tax practitioner with experience on international business matters.

Each speech will be followed by a moderated discussion between speakers and participants to provide an environment in which to exchange views on the issues raised, report on recent developments and elaborate on their own research or professional experience. It will be an opportunity for all workshop participants to develop skills and insight in an area of law that is highly-valued in the corporate world.

Capital gains taxation

Michał Roszkowski, Accreo Taxand

Host:

Coordinator:
- Michał Roszkowski, Tax Adviser, Accreo Taxand, Warsaw, Poland

Speakers:
- Walter Cutajar IFA Malta, Managing Director, Avanzia Tax Advisors Limited, Mriehel, Malta
- Andrzej Puncewicz Secretary IFA Poland, Partner, Accreo Taxand, Warsaw, Poland
- Emilia Dragu Partner, TaxHouse, Romania Taxand member
- dr Stefano Simontacchi Bonelli Erede Pappalardo, Italy

As regards income received upon exiting from an investment, it can be argued that tax authorities in the CEE region have usually taken a moderate approach, releasing such income from domestic tax, except for direct investments in real estate. A review of corresponding fiscal practice reveals that the notion of capital gains has been understood broadly, also in such important areas as taxation of income received from investment funds. In many areas, including taxation of real estate, even though capital gains could be taxable under the relevant treaty, no tax is being levied due to peculiarities of the national procedure and practice, rather than in line with the substantive rules in force. Conversely, national tax administrations may be far more restrictive in cases of re-investment, including contributions of shares or interest into another vehicle or exchanges of specific instruments for other categories of assets. Those exemplary situations indicate that economically sound restructuring operations may be hampered or delayed by strictly fiscal obstacles (often linked with other tax issues, such as stamp duty). This workshop will aim at identifying those areas of capital gains taxation which continue to attract practical and doctrinal difficulties. Experts and participants will be invited to bring the attention of the group to particular investment or exit schemes, or categories of transactions, where effective tax advice could help avoid fiscal barriers and get the deal through.

Intra-Community delivery and acquisition of goods from the perspective of new EU members

Marcin Matyka, DLA Piper

Host:

Coordinator:
- Marcin Matyka, Of Counsel,
DLA Piper, Warsaw, Poland

The VAT Directive provides for a 0% VAT rate for the delivery of goods being sent or transported to a destination situated in another Member State. At the same time, members of the EU have introduced different requirements to prove that the delivery of goods was made for the VAT-payer from another country and, what is more important, that the goods were transported to another EU country. The standard VAT settlements regarding deliveries and purchases of goods become even more complicated in the case of so-called chain transactions in the EU, i.e. when goods transported from one EU country to another one are sold to one or more intermediaries.
The matter regarding the documentation of intra-community delivery and correct recognition of intra-community acquisition becomes extremely important due to the so-called carousel fraud. The carousel fraud can also be observed, in their wide spectrum, in new Member States.
During the workshop we will discuss the settlements of the intra-community transactions made in new Member States, especially the regulations regarding documenting intra-community deliveries, as well as the tax practice regarding the chain transactions. Furthermore, we will try to indicate which aspects of goods’ transactions undertaken within the EU should be taken into special consideration in practice. Moreover, we will discuss how to identify and how to prevent the carousel fraud. Finally, we will illustrate the influence of the European Court of Justice’s decisions regarding the intra-community transactions on the tax practice of new EU members.

Transfer Pricing - law and practice

Pawel Wroblewski, Baker & McKenzie

Host:

Coordinator:
- Pawel Wroblewski, Economist, Baker & McKenzie Amsterdam N.V., The Netherlands

Transfer Pricing Documentation is mandatory in most countries and over time, the format of such transfer pricing documentation has been established more or less thanks to inter alia the EUJTPF's Master File. However, on a national level differences continue to exist between EU Member States. The workshop will address the need for transfer pricing documentation and will focus in particular on difficulties encountered in practice as a result of differing requirements and discussions as regards comparables needed to demonstrate consistency with the arm's length standard.

Exchange of information

Dr Renata Hayder, Ernst & Young

Host:

Coordinator:
- Dr Renata Hayder, Member of Management Board, IFA Poland, Partner, Ernst&Young, Warsaw, Poland

Industry sectors and advisers have reported increased cooperation and exchange of information between tax administrations, both in the regional and global dimension. Accordingly, the issue has also become of critical importance not only for legitimate optimisation schemes, but also for everyday tax practice. For instance, enhanced cooperation between authorities from various countries may allow them to better understand multilateral situations or hybrid structures and provide well-informed and balanced rulings. Similarly, the exchange of information increasingly affects pending tax proceedings, often to the benefit of taxpayers, extending the scope of available disclosure measures. Exchange of information procedures have also acquired an EU dimension, following the ECJ’s decisions condemning the refusal of tax benefits in those cases where an exchange was possible. The workshop will bring together experts in this area and will seek to explore in detail the opportunities and risks which international exchanges of information may imply.

Exchange of information and other tax base protection measures vs international tax planning.

1. Current trends in tax base protection

2. Classification of the tax base protection measures
- unilateral measures
- bilateral measures
- multilateral measures

3. Various tax base protection measures vs international tax planning
- business restructurings
taxation
- CFC regulations
- exchange of information
- combating the unfair
tax competition

4. Conclusions

VAT in the New Europe - the practical effects of harmonisation five years after accession

Tomasz Michalik, MDDP

Host:

Coordinator:
- Tomasz Michalik, Partner, MDDP Michalik Dłuska Dziedzic
&Partners

Is the Directive fully implemented? Are the tax courts using Directive and ECJ jurisprudence? Are the compliance cost higher than before May 1, 2004? Are the taxpayers aware of the opportunities resulting from the common system?
After 5 years these questions are still valid. The taxpayers are still learning how to effectively use the benefits created by the European Directives and verdicts of European Court of Justice. Tax courts are applying ECJ verdicts in their daily practice. But the legislation is still far from being fully in line with the Directive.
The workshop will be focused on the discussion on various aspects of the VAT system, from both – practical and theoretical perspective, such as different controversial input VAT recovery restrictions applied in several Member States of the region, compliance requirements, practical application of instruments such as VAT Groups, postponed accounting, anti-fraud laws and practices etc. Purpose of the workshop is to review and discuss the national legislation, analyse differences, discuss the most required changes.