MARCH 2015 BERLIN
berlin
SUMMARY OF THE CONFERENCE 15-17 MARCH 2015
EU cross-border succession [ DANIEL LEHMANN ]
THE EU SUCCESSION Regulation comes into force
later this year. It applies to EU States, except Denmark, Ireland and the United Kingdom. Habitual residence is the default connecting factor, but a testator may choose the law of his nationality at death. No choice of venue is available to the testator. Where, for example, a German testator leaves a restricted interest to A, but confers a subsequent interest on B, it is unclear whether the same law will apply to both dispositions. The Regulation will make changes in several countries – notably changing the law governing dispositions of real estate, but it does not generally alter the law applicable to wills executed before 17 August 2015. German and French testators will no longer
020
The ITPA Green Book 2016
www.itpa.org
be able to escape forced heirship rules by acquiring English real estate, but English testators will be able to choose English law to govern their dispositions of real estate on the Continent. Existing bilateral agreements will prevail. There are many such agreements, some of long standing. Cross-border succession planning remains a minefield. The regulation will solve a number of problems but create new ones.
Base erosion and profit shifting
[ JIMMIE VAN DER ZWAAN ]
THE DRIVING FORCE IS POLITICAL. THE BEPS agenda was launched in 2013. It was thought
At the G20 meeting in Istanbul three initiatives were put in place.
to be over-ambitious, but it has gathered pace. At the G20 meeting in Istanbul three initiatives were put in place: the multilateral instrument on tax treaty measures, country-by-country reporting and IP box scrutinising (in Germany and the United Kingdom, benefits being proposed to be based on R&D expenditure). Changes in the Parent/Subsidiary Directive are to be implemented by the end of the year, aimed at the use of hybrid mismatches. A tax measure may infringe the
rule against state aid: APAs are being scrutinised. The Starbucks structure is mostly directed to avoiding US taxes, and the outcome is uncertain. In Luxembourg, the Amazon ruling is under examination, but in the Netherlands, the tax authorities have yet to discuss favourable rulings. Ireland is requiring more ‘substance’.
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