Structuring and Taxes for Companies Doing Business in the EU
The European Union is one of the world’s largest trade blocs, accounting for approximately 15% of world trade. Its domestic common market, with free movement of goods, capital, services, and labor, is also one of the largest worldwide – with more than 500 million consumers, 350 million of which share a common currency.
However, despite being a common market and that certain regulations – especially those related to the primary sector and financial services – are being harmonized across the EU, the bloc is made up of 28 jurisdictions (including the UK) with different corporate and tax legislation and compliance requirements, and their own commercial traits.
The EU also hosts some of the highest tax jurisdictions and highest corporate compliance burdens. Conversely, there are a number of tax directives and double tax agreements between countries that allow for tax optimization. The EU also hosts some of the most developed financial services industries, which are key drivers and conduits of international trade.
Therefore, for a successful international business, it is common at some point to look to expand operations or trading activities across the EU.
However, when doing so, both EU and non-EU based businesses that are looking to expand into the common market need to assess and consider a number of structuring and tax matters when conducting business across the EU. These matters are usually business and industry-specific, and, therefore, careful structuring and tax planning should be undertaken to assess potential exposure to taxation and local business regulations, whether direct or indirect, and their implications from a financial and commercial standpoint.
In this article, we review some of the most relevant structuring and tax matters to take into account when doing business in the EU, for both EU-based businesses and non-EU based business. We touch on a range of areas, from permanent establishment and corporate tax residency considerations to value-added tax matters for companies trading in the EU. We also review the caveats to consider when using tax-neutral vehicles to do business across the bloc.
This article is not intended to be a comprehensive analysis and is not legal or tax advice of any kind. One should seek qualified professional advice for their specific business and markets before making any strategic decisions.
PE vs Subsidiary for Non-EU based businesses
First of all, non-EU companies need to assess whether it is more suitable to establish a subsidiary in an EU member state or otherwise operate as a foreign company with or without a permanent establishment, and the commercial and tax implications of doing so.
This will involve considering the specific, intended EU-related business activities of the non-EU company, and whether it would be considered a permanent establishment (PE) in the EU.
The concept of PE is used to describe a given foreign company that has a stable and ongoing presence in a country, generating local revenue and with sufficient facilities for running in an independent manner. However, the criteria for determining a PE can vary across jurisdictions.
Generally speaking, a foreign company with a PE in a given country is usually liable for taxes, i.e. its worldwide income arising from the ongoing activities of the PE is subject to local corporate tax rates and value-added tax registration requirements. To avoid taxation, the EU presence of the foreign company would need to be limited to representative functions only and not to actively trade.
Note that just because a given company has customers in a jurisdiction does not mean that the company has a permanent establishment or is carrying out a trade. A non-EU company may have customers in the EU but not have a permanent establishment or carrying out a trade there.
Most EU member states use the OECD criteria, which consider a PE as a fixed place of business through which the business of a company is wholly or partly carried out.
A fixed place of business could be the place of management, the existence of a branch, office, factory, workshop, or a mine, an oil or gas well, a quarry or any other place of extraction of natural resources.
Generally, using facilities for storage, display or delivery of goods, for the purposes of maintaining stock or for the purpose of having another company process them wouldn’t be regarded as a PE.
However, if the company has no office in a given EU member state, but has staff or agents who negotiate, conclude and sign contracts exclusively on behalf of the company, and exercise it regularly – a so-called dependent agent – this might trigger PE provisions. The same applies to companies that provide services on the ground in a regular manner.
Furthermore, a given tax treaty between countries may alter the criterion used for determining whether a foreign company’s EU activity is considered a PE. If there is a double tax agreement (DTA) in place – income taxed at the PE level should not be taxed again in the domicile of tax residency of the company.
In the absence of a tax treaty, the company may run the risk of being taxed twice on the same income. Most jurisdictions provide tax credits and deductions for foreign tax paid, although the scope of them may vary significantly.
Note that the current PE criterion usually refers to some sort of physical presence in the jurisdiction which generates revenue, and does not cover certain ‘digital services or products’. Selling your products and services online to clients located in a jurisdiction, may not by itself trigger a PE in that jurisdiction, however, this might change, as we will see below.
The European Commission proposed introducing the concept of digital or virtual permanent establishment – which would tax local income derived by foreign companies that have a significant ‘digital presence’ in the country. This digital presence would be assessed by local revenues, users, and contracts. It is expected that the digital PE concept will be transposed into local law by January 2020. The scope and definition of significant ‘digital presence’ remain to be seen; we will talk about it at length in a future article.
A Non-EU company having a permanent establishment in the EU triggers tax registration and tax reporting requirements, i.e. filing tax returns and transfer pricing documentation. Some countries, such as Spain, oblige PEs to withhold taxes when remitting funds to the head office, while others, such as the UK, do not.
Note that Tax Registration may also be mandatory for foreign companies that provide workers on a paid basis in or to the country, even if the company does not have a PE, and is just there for representative functions.
Generally, when it comes to PE taxation, tax authorities will take the approach of determining taxable income and deductible expenses attributable to the PE as if the PE is an independent entity from its head office. In some instances, this might be done by calculating profit margins based on a percentage mark‑up on costs and expenses incurred.
A PE can be registered, but may not need to be, as a branch of the foreign company in the relevant Commercial Register. Branches are the half-way between having a mere place of business or establishment and a full subsidiary. For tax purposes, Branches are usually treated as a PE of a foreign company.
A branch is not a separate entity of its head office but may carry out trading activities in its own name rather than in the name of the head office (as opposed to a mere ‘establishment’), and may have a certain degree of autonomy. However, it cannot carry its own rights and obligations, and branch assets form part of the assets of the head office.
In certain instances, establishing a branch may carry certain benefits over forming a subsidiary. Branches provide for a much more simple legal and governance structure – the board of directors of the parent company controls local operations directly.
Furthermore, a branch can be easily winded down, as opposed to a subsidiary – which needs to follow a more expensive, laborious and lengthy formal procedure and may require the appointment of a liquidator. That might be an important aspect to consider for foreign companies that have a specific project to carry out, or are initially entering the market with uncertainty on the outcome, and are unsure as to whether they will maintain a presence in the jurisdiction.
From a financial reporting standpoint, branches usually need to file a full set of accounts of the parent company to the relevant tax authority where the branch is registered.
Depending on the scope of activities and the long-term goals, one may consider setting up a subsidiary instead. Unlike a branch, a subsidiary has a separate legal personality and, as a result, the parent company will not be liable for the debts and obligations of its EU operations.
Furthermore, operating via a subsidiary might provide commercial and financing benefits; local businesses and banks may be more comfortable in dealing with local entities.
From a tax standpoint, the subsidiary will be on its own a fully separated taxable entity and will be subject to taxes in the jurisdiction of incorporation and/or effective management, separately from the parent company.
As previously mentioned, if the PE and the parent company are located in non-treaty countries, accrued income might be taxed twice (although tax credits for foreign tax paid might be available). In that case, establishing a subsidiary might be more suitable tax-wise, especially if no withholding tax on dividends is due at the subsidiary level, and a participation exemption on dividends received is available at the parent level.
Corporate Tax Residency for EU Companies
Either an EU-based business or a non-EU business forming an EU subsidiary can elect across 28 jurisdictions (as of now) to set up their corporate vehicle and access the common market. In the European Economic Area, there is Freedom of Establishment: a business can carry on economic activity in a continuous way in one or more EEA States.
Some jurisdictions provide more advantageous tax regimes than others. For instance, Cyprus, Malta, Ireland, Bulgaria, Romania or Hungary have relatively low effective corporate tax rates – between 5% and 12.5% – whereas others such as Germany, France or Portugal levy high corporate tax rates, around 30-35%. A few months ago, we wrote an article on where to set up an International Business in Europe, reviewing some of them.
One can definitely look at the most tax advantageous jurisdiction for setting up shop under the Freedom of Establishment principle and benefit from a lower tax regime.
However, there are certain caveats related to corporate tax residency. Generally, corporate tax residency is not only assessed by the place of incorporation, but also by the place where the company or operation is effectively controlled and managed from. Furthermore, most EEA countries have concluded DTAs between them – which set the rules to determine the corporate tax domicile of a given company.
If an EU-based business is incorporated in an EU jurisdiction but is effectively controlled and managed from another jurisdiction, it would be subject to taxes in the latter. To assess corporate tax residency, a given tax authority would look at the personal tax residency of the directors or controlling persons, the place of business, the location of the board meetings, and whether the company actually has economic substance such as employees or physical offices, among other factors.
For instance, a Cyprus company controlled from the UK, with a UK-based board of directors, and without a place of business in Cyprus may be deemed tax resident in the UK. This also applies to non-EU based groups who might want to operate in a given Member State for commercial reasons but incorporate in another for tax reasons. In the mid/long-term this strategy won’t be an effective solution.
Therefore, when assessing jurisdictions of incorporation, one should consider the suitability of establishing economic substance there, taking into account commercial matters and whether it makes sense to establish a business presence.
Certain arrangements such as nominee or professional directors may not work to establish economic substance. Professional and nominee directors usually act as directors of a number of companies, and if there is a tax audit, they would be significantly simple to spot.
A good approach might be to hire a local executive director who works exclusively for the company and has an adequate remuneration for his or her position, with a local office, local employees and local expenditures.
However, even if the company has established economic substance and is controlled and managed from that specific jurisdiction – if the company has offices or another sort of commercial substance elsewhere in the European Union, permanent establishment rules apply in the same way as for non-EU companies, as discussed previously.
If it is deemed that the EU company has a PE in another EU Member State, income attributed to the PE would be taxed locally.
As previously discussed, a PE is a designation of a fixed place of business and can be triggered by the place of management, branch or offices, factories, workplaces, or by having a dependent agent, among others.
Also note that, although the EU and the EEA are common markets, tax matters between the Member States are handled independently. One needs to look at the specific DTAs between jurisdictions for further clarity. Note that not all jurisdictions have signed tax treaties with all their European counterparts.
Corporate Tax Residency and Permanent Establishment provisions should be carefully taken into account when designing a tax planning strategy either for EU-based businesses as well as for non-EU based businesses operating with EU subsidiaries.
Offshore Companies doing business in the European Union
Doing business with EU counterparts via offshore companies might present certain challenges, especially if we are talking about B2B service types of business.
When we talk about offshore companies, we refer to companies incorporated in tax-neutral jurisdictions, whether they are blacklisted by the EU or not, and which are not registered as tax resident elsewhere.
EU companies may have issues when deducting payments made to offshore companies, and tax authorities may request a higher burden of proof of business. This provides certain challenges when conducting B2B in Europe, as opposed to selling a product or providing a service to end-consumers, which, in any case, cannot deduct their payments for personal tax purposes.
The level of burden varies depending on the specific EU member state; for example, Cyprus tax authorities may not be as inquisitive as German ones if a local company is trading with offshore companies. Nonetheless, higher regulatory oversight is, in general, an increasing trend across the whole European territory.
The nature of transactions and business activity are generally the most relevant factors looked at by tax authorities.
If the concept of the payments can be easily proven – e.g. purchase of goods – there may be no issue for the EU company to provide evidence and deduct these invoices for tax purposes.
If the concept of the payment is for certain services, such as consulting services, which are more difficult to provide evidence of, a given tax authority might not recognize the expense.
For that reason, if your business relies on B2B transactions with certain EU member state, depending on your business activity, a single offshore company might not be the ideal vehicle. It may make sense to use a larger structure.
EU companies may reject direct business with offshore companies to avoid heavier scrutiny from tax authorities and triggering additional audits or inspections on their accounts. Reputation and culture also matter – the ‘Offshore Stigma’ aversion is rampant in the EU, as opposed to, for instance, in Asia. Certain EU companies may refuse to do business with companies incorporated in certain offshore jurisdictions just because of this.
Furthermore, a given EU company may request the offshore supplier to include a Tax ID in their invoice for tax compliance purposes, which offshore companies that are not registered as tax resident anywhere may not be able to provide.
For businesses operating with both EU companies and offshore companies, there are certain caveats to consider.
First, there are transfer pricing rules to comply with. Intra-group transactions should be made at fair market value and at an arm’s-length basis. Tax authorities may scrutinize these transactions and may request comprehensive transfer pricing documentation on them. If the business turnover/assets pass certain thresholds, local and master file TP documentation must be prepared.
If tax authorities deem that these transactions lack commercial substance and are just in place to minimize tax liability, they could be disregarded for tax purposes.
Furthermore, one should consider the effective place of management of the offshore company, as it could be considered a local entity for tax purposes if the company is controlled from an EU country.
If the structure consists of an offshore holding-EU subsidiary, most EU countries apply high withholding taxes on dividends, interests, and royalties paid by the subsidiary.
If the offshore company is a subsidiary of the EU company, CFC rules may apply, which may lead to undistributed income from the offshore subsidiary to be attributable to the parent company. However, the scope of CFC rules varies across the Member States, some having a more lenient and others a stricter approach.
Value-Added Tax (VAT) for Non-EU companies
For the purposes of this section, we will only be considering VAT compliance for non-EU companies trading in the European Union. EU VAT requirements can be complex, and this piece is not intended to be comprehensive, and instead just outlines basic requirements in some situations.
A non-EU company that imports and/or sells taxable supplies in the EU needs to be registered for VAT purposes may need to appoint a fiscal representative in each of the countries they are trading with, who will deal with filing obligations and may be jointly liable for VAT payments of the company. Appointing a fiscal representative is not mandatory in all countries – Netherlands, Germany, UK and Czech Republic, among others, have waived this requirement.
This makes VAT registration an administrative and cost burden for a non-EU company. Many non-EU companies opt for working with an agency in Europe or establishing their own subsidiary for easier VAT compliance, among other reasons.
If a foreign company has a permanent establishment, whether registered as a branch or not and trades with European Union clients, it must register for VAT. Generally, exemption thresholds for small businesses do not apply to foreign companies.
The foreign company with PE will need to charge VAT on its domestic sales of goods and provision of services and will pay VAT on their domestic purchases. The company would need to prepare and file a VAT return with both their taxable purchases (input VAT) and their taxable sales (output VAT). The difference between input VAT and output VAT will need to be remitted to the relevant tax authority (if positive) or will be refunded to the company (if negative). VAT reporting periods vary across countries – monthly or quarterly being the most common. For companies with irregular trading, countries such as France require reporting on an activity basis, and others a single annual return.
For intra-community B2B trading, whether goods or services, the VAT Reverse Charge generally applies. The Reverse Charge moves the burden for the recording of a VAT transaction from the seller to the buyer for that good or service.
A VAT exemption applies in the Member State of dispatch when they are made to a taxable person in another Member State – which will account for the VAT on arrival.
The recipient of the goods or services makes the declaration of both their purchase (input VAT) and the supplier’s sales (output VAT) in their VAT return. Therefore, in the VAT return, the two entries would cancel each other out from a cash payment standpoint
If the supplier has incurred local VAT related to the service or goods supplied under the Reverse Charge, it may recover them through an EU VAT reclaim.
Both the supplier and the recipient company would need to register with the VAT Information Exchange System (VIES). They will also need to file Intrastat declarations if the arrival or dispatched goods exceed certain annual thresholds – which vary across countries, from EUR 90,000 to EUR 1,000,000. The supplier will also need to file an EC Sales Lists report document that allows authorities to track intra-community B2B sales – which applies to both goods and services.
If the foreign company does not have a permanent establishment in the EU but conducts certain trading activities, it may still need to register for VAT.
For instance, if the non-EU company is importing goods into the EU, then the company would need to register for VAT, and pay VAT and any applicable customs duties in the port of entry. Currently, there is an exemption from VAT for a given good valued below EUR 22.00. However, the EU will abolish this VAT exemption from 1 January 2021.
When it comes to importing goods, companies should carefully consider the port of entry, which can have a significant impact on their cash flow. In most EU countries import VAT is payable at the time of importing the goods. However, in other countries, such as the Netherlands, non-EU companies that have appointed a Fiscal Representative can defer the payment of import VAT until filing the periodical VAT return, avoiding pre-financing the VAT – at the time of the VAT return, input VAT would be offset by the output VAT charged to the customer. Besides pure commercial factors, a company should also consider the efficiency of a given Customs Office when choosing their port of entry.
If the company purchases and exports goods from the EU, it would need to register for VAT as well in order to claim back the VAT paid on the supply.
Furthermore, any company importing into and/or exporting from the EU – regardless of whether it is incorporated in the EU or not – would need to secure an EORI (Economic Operators Registration and Identification) number.
If the non-EU company is supplying goods from one EU member state to another EU member state, then VAT registration requirements and Reverse Charge provisions may apply, as previously explained.
There are certain transactions that generally do not trigger VAT registration for non-EU companies without a permanent establishment in the EU.
For instance, a non-EU company without a PE providing services to an EU company would not usually be required to secure a VAT number and charge VAT, with certain exceptions such as for services related to immovable property, and electronic services.
Electronic services include servers for websites and data storage, subscriptions to games or publications, paid-for downloads of books, music or videos, or software applications, among others. Electronic services provided by a non-EU company are subject to VAT, and the company would need to register for VAT in one Member State, and charge VAT to the consumer. As of 1 January 2019, non-EU companies can access the VAT Mini One Stop Shop (MOSS) scheme which simplifies the VAT reporting procedure.
When it comes to e-commerce businesses operated outside the EU, that sell goods to European consumers, one should consider how the business is organized.
If goods are shipped directly from a non-EU country to the end-consumer, and the end-consumer is the importer of record, he or she will incur VAT and customs duties, if applicable.
If the company is the importer of record, it will need to register for VAT and EORI in a given port of entry, and charge VAT to the customer, as previously explained. If the company is using a fulfillment facility, registering for VAT is also mandatory.
Furthermore, if the company is using a fulfillment center or distributing the goods on its own across the whole European Union, it would need to be registered and obtain a VAT ID number in each of the countries that its customers are located, file VAT reporting, and charge the local VAT rate if they surpass the distance sales thresholds on their sales in each Member State on a given year.
The distance sales thresholds vary – Germany, Luxembourg, the Netherlands, and the UK have a EUR 100,000 threshold, whereas Spain, Italy, France, Belgium, Finland, and Austria have a EUR 35,000 limit.
However, as per recent VAT developments announced by the European Commission, marketplaces and electronic interfaces such as Amazon or eBay will be liable for collecting VAT on behalf of non-EU suppliers. It will be deemed that two supplies would have taken place – a B2B supply between the seller and the Marketplace, and a B2C supply between the marketplace and the end-consumer.
This may allow for eliminating the burden for non-EU e-commerce companies using electronic marketplaces to register for VAT in each of the countries where their customers are located.
In addition, as of 1 January 2021, companies selling goods to end-consumers across different Member States will be able to use the One Stop Shop (OSS) scheme and will no longer be required to have multiple VAT ID numbers and report VAT in the various EU Member States. Under the OSS scheme, the supplier will charge local VAT in the Member State where the customer is located, but VAT registration and reporting will be done in a single Member State.
Value-Added Tax (VAT) for EU companies
Generally, EU companies need to register for VAT in their jurisdiction of incorporation and permanent establishment (if applicable). If the company is selling goods or providing services locally, it would need to charge VAT to the client, at the applicable rate, and file a periodical VAT return with their local tax office on their Input VAT and Output VAT, and pay or claim for reimbursement of the VAT balance, as applicable.
In most EU countries, VAT registration exemption applies to small businesses provided that their taxable supplies of goods or services do not exceed certain annual limits. The annual limits are usually calculated considering the previous 12 months or considering the forecasts of the next 12 months.
The UK has the highest VAT registration exemption threshold, GBP 85,000, whereas Spain and the Netherlands have no exemption. Note that these VAT registration exemptions apply only to companies doing local business, and not trading with other EU countries.
Therefore, an EU company trading across the EU will need to register for VAT. If the EU company is importing goods it would need to obtain an EORI number, and register for VAT in the port of entry and pay VAT (if VAT payment deferral is not permitted) and customs duties – in the same way as previously explained for non-EU companies. Unlike foreign companies, EU companies are not generally required to appoint a fiscal representative.
As previously explained, Reverse Charge applies to intra-community B2B trading, whether goods or services, as long as the buyer is registered for VAT purposes.
The supplier is not required to charge VAT, and it would be the buyer who will record VAT, declaring the transaction’s input VAT and output VAT using the local rate, whose entries would cancel each other. Both companies would need to be registered with VIES, and file Intrastat Declarations if certain annual thresholds are exceeded. The supplier will also need to file the EC Sales lists.
For intra-community B2C transactions, the general rule is that VAT should be charged at the applicable rate of the country in which the consumer is located, provided that taxable sales surpass the distance sales threshold of that country.
If the company does not exceed the aforementioned Distance Sales thresholds on their annual taxable sales in an EU Member State, it can charge its local VAT rate and report to the local tax office.
However, if the distance sales threshold is exceeded in a given Member State (between EUR 35,000 and EUR 100,000 depending on the country), then the company would need to register for VAT in that country, charge the VAT rate of that country and file the VAT returns on that country. As previously explained, this would be simplified starting January 1, 2021, with the OSS scheme, whereby multiple VAT identification numbers will not be required.
The same applies for website hosting, the supply of software, access to databases, downloading apps or music, online gaming, and distance teaching services – which are deemed to take place where the customer is located, and VAT due in his or her EU Member State. The Service provider would need to either register for VAT where the customer is located or obtain only one VAT ID number via the MOSS scheme, and charge VAT rates and report VAT in the country of the customer.
However, if the total taxable supplies arising from the provision of intra-community electronic services does not exceed a threshold of EUR 10,000, the service supplier will be able to charge their local VAT rate. However, under the MOSS scheme, the service supplier can still report VAT to their local tax office.
Other B2C services such as consulting, accounting or legal services, among others, are generally deemed to take place in the country where the service provider is located. Therefore, the service provider should charge their local VAT rate and report that VAT in its EU country.
There are certain exceptions to this rule. For instance, if an intermediary, services are taxed at the location in which the intermediary intervenes. If the services are connected with immovable property, VAT applies in the country in which the property is located – both for B2B and B2C transactions. For the transport of passengers, VAT in each of the countries through which the trip passes, and the taxable amount, is calculated according to distances. For the transport of goods, VAT is generally due in the country of departure. These are just some of a large number of exceptions in EU VAT rules.
The Bottom Line
As we’ve seen, there are a number of tax and structuring matters to consider when doing business in the European Union.
A non-EU company should primarily consider the scope of activities carried out within the EU, and assess whether they would be deemed as a permanent establishment, and if so, their tax implications.
If a permanent establishment is sought, a non-EU company should consider whether operating via an EU subsidiary would be more beneficial from a commercial, governance and financial standpoint.
There are a myriad of factors that come into play here, but generally speaking, the benefits of having an EU subsidiary will likely offset any potential downside in terms of cost and organizational structure, especially if the company plans to operate in the EU in the long-term and is subject to VAT registration and compliance.
Non-EU based businesses using tax-neutral vehicles should analyze the pros and cons of setting up a subsidiary, and how it would commercially affect them, given their specific business activity. If any downsides emerge, it may be worth looking for alternative legal structures.
EU-based businesses and EU subsidiaries of foreign businesses should strongly take into account corporate tax residency and PE provisions, their actual place of business and economic substance when structuring their business. The EU is made up of 28 countries with varying levels of tax burden, many of which are substantial. But from a tax standpoint, what really matters is where the business is controlled and operated from.
Furthermore, Group Companies need to carefully consider transfer pricing requirements, and other anti-avoidance rules when structuring commercial relationships between entities. The EU’s revenue offices are some of the strictest and most inquisitive on that matter, and, unlike other places, tax laws are enforced in the EU.
The intra-community VAT framework can sometimes be complex, with a number of rules to follow, and exceptions and unique provisions for specific businesses. VAT compliance represents a high administrative and cash flow burden, especially for non-EU companies. Therefore, one should take into account how their trade with European counterparts is conducted, the specific underlying goods and services, as well as the jurisdictions involved.
These are just some considerations to keep in mind when doing business in the EU. The EU is one of the largest markets in the world, but also one of the most highly-regulated regions; there are rules for absolutely everything, and, the consequences of being non-compliant can have a significant impact on a given business.
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