3.1. Trends of the European Union’s tax control policy

First of all, it is topical to reveal conditions which press on trends. In this aspect the Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC defines in its preamble that «[t]he Member States’ need for mutual assistance in the field of taxation is growing rapidly in a globalised era. There is a tremendous development of the mobility of taxpayers, of the number of cross-border transactions and of the internationalisation of financial instruments, which makes it difficult for Member States to assess taxes due properly. This increasing difficulty affects the functioning of taxation systems and entails double taxation, which itself incites tax fraud and tax evasion, while the powers of controls remain at national level. It thus jeopardises the functioning of the internal market … a single Member State cannot manage its internal taxation system, especially as regards direct taxation, without receiving information from other Member States … There is a need for instruments likely to create confidence between Member States, by setting up the same rules, obligations and rights for all Member States» [35].

Therefore, some of the following trend can be identified.

1) Globalization of tax policy, especially tax control. It is connected with the activity of large companies in low-tax heavens and offshores, but some SMEs, especially medium-sized, also can play role in this activity. As we have defined tax control within some aspects one of these aspects is an exchange of tax information. As far as it is stated in the literature «[a]fter the Foreign Account Tax Compliance Act developments in the U.S. and the recent statements by the G-20 and the EU, it [the cross-border exchange of tax information] is only a question of time — and not much time in my view — before automatic exchange of information becomes the international norm. The technical work to


implement such automatic exchange has been developed by the OECD and now the political will to put it into effect seems to be here as well» [95, pp. 1195-1196].

2) Enhancement of tax control by the institutions of the EU. As it was stated in one article that «the European Commission enhance tax control» [128]. The European Commission plays significant role in tax control. As an example, the report of Apple Inc. for the fiscal quarter ended march 28, 2015 can be presented. Here it is stated that «[o]n June 11, 2014, the European Commission issued an opening decision initiating a formal investigation against Ireland for alleged state aid to the Company. The opening decision concerns the allocation of profits for taxation purposes of the Irish branches of two subsidiaries of the Company. The Company believes the European Commission’s assertions are without merit. If the European Commission were to conclude against Ireland, the European Commission could require Ireland to recover from the Company past taxes covering a period of up to 10 years reflective of the disallowed state aid. While such amount could be material, as of March 28, 2015 the Company is unable to estimate the impact» [92].

3) Lack of interconnection between taxation and SMEs in some legal acts is leading to weaknesses of support of SMEs. This is not so influential in the context of the EU area, but the problem can arise.

In the European Charter for Small Enterprises it is written that «[b]y endorsing this Charter, we commit ourselves to work along the following lines for action, taking due consideration of small business needs» [46].

One of them is a field of taxation and financial matters. It continues that «[t]ax systems should be adapted to reward success, encourage start-ups, favour small business expansion and job creation, and facilitate the creation and the succession in small enterprises. Member States should apply best practice to taxation and to personal performance incentives. Entrepreneurs need finance to translate ambitions into reality. In order to improve the access of small enterprises to financial services, we will:

Identify and remove barriers to the creation of a pan-European capital market and to the implementation of the Financial Services Action Plan and the Risk Capital Action Plan;


Improve the relationship between the banking system and small enterprises by creating appropriate access conditions to credit and to venture capital;

Improve the access to the structural funds and welcome initiatives by the European Investment Bank to increase funding available to start-ups and high-technology enterprises, including equity instruments» [46].

As a contrast to this act, in the Small Business Act for Europe there is no single area of development of taxation. Only within some principles taxes are mentioned [1].

Anyway, as a result of it the bigger lax burden can be brought by SMEs, than by large companies, because as it is rightly written «… a statement in the Financial Times by the Conservative U.K. chancellor of the Exchequer, the Socialist finance minister of France, and the center-right German finance minister, which said: Some multinationals are exploiting the transfer pricing or treaty rules to shift profits to places with no or low taxation, allowing them to pay as little as 5 percent in corporate taxes while smaller businesses are paying up to 30 percent. This distorts competition, giving larger companies an advantage over smaller, more domestic companies. In this difficult economic climate, it cannot be right that larger companies can avoid paying tax, with families and small businesses ending up paying more» [95, p. 1196].

4) The EU is a supranational union and it develops, becoming more federal union. In 2004 there were some attempts to adopt Treaty establishing a Constitution for Europe [69], but they were failed. Anyway, the EU has went through some levels of economic integration, such as (1) free trade area, (2) customs union (implemented in 1968), (3) internal market (common market), (4) economic and monetary union (from 1986) [110, p. 93].

Nowadays, some ideas to create the United European States are arisen. For example, Viviane Reding calls for full fiscal and political union for 18 eurozone countries but says UK should remain apart [91]. Actually if it happens there is a chance to create a single fiscal authority for all federal states of the United European States. This idea is very theoretical and practical application is very doubtful.

5) From control to trust. Such an approach is detail described in work «Tax Control Framework: From a focus on risks to being in control: a different approach» presented by


the Netherlands Tax and Customs Administration [120]. Such a work was presented for large enterprises, but some ideas are applicable for SMEs.

As far as it is prescribed in the work «[t]his entails mutual trust between the taxpayer and the Tax and Customs Administration and clearer communication about each other’s responsibilities and capabilities in order to do what is right, as well as laying down and observing reciprocal agreements. Horizontal monitoring is in line with developments in society, where the individual responsibilities of corporate and government managers and administrators are defined more clearly and upheld through supervision. Businesses must be transparent for stakeholders about the degree to they achieve operational targets and the extent to which they are in control of the processes involved. The government is an example of a stakeholder» [120, p. 7].

The cooperation between SMEs and tax and custom administration on the basis of mutual trust could help each other. For Ukraine such an approach could be useful and harmful at the same time, because of, on the one hand weakness of tax discipline, on the other it would simplify activity of all SMEs in Ukraine.

6) Tax law starts using notions «moral» and «immoral». At the Public Accounts Committee conducted on Monday 12 November, 2012 at 17:12:20 [121], the committee chair, Margaret Hodge, accused Google of being immoral, because of tax minimization [86]. Such a trend is not spread, but the notions of abusive behavior of companies become deeper researched in scientific and practical fields. It could be danger for SMEs, if the criterion of morality would be applicable in tax. The criterion of morality can destroy the existing tax law and it leaves to mention classical statement of the Supreme Court of the United States that » … [t]he legal right of a taxpayer to decrease the amount of what otherwise would be his [or her] taxes, or altogether avoid them, by means which the law permits, cannot be doubted» [140]

7) Electronic taxation. It is actually linked with developing technologies. As it is rightly mentioned in one article that «technological improvements have greatly improved the general ability of governments to administer, enforce, and collect taxes»[95, p. 1200]. Such an approach is topical for Ukraine, which begins to apply electronic system for value


added tax. But this is only one aspect of electronic taxation and Ukraine is really weak in this field.



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