ATAD 2 - Luxembourg Law for implementation is voted


In brief

On 19 December 2019, the Luxembourg Parliament voted to approve the law implementing the EU Anti Tax Avoidance Directive regarding hybrid mismatches with third countries (“ATAD 2”) into Luxembourg domestic law (the “Law”)[1]. The legislation (Bill n°7466) had been submitted to the Luxembourg Parliament on 8 August 2019.

The Law generally follows the text of ATAD 2 rather closely, adapting it mainly to integrate with the structure and terminology used in the Luxembourg Income Tax Law (“LITL”).

As anticipated by ATAD 2, the Draft Law will in general apply to tax years starting as from 1 January 2020, with the additional “reverse hybrid” measures that comprise Article 9a of ATAD 2 applying from the 2022 tax year, i.e. to tax years closing in 2022. For taxpayers having a tax year diverging from the calendar year, this means that Article 9a of ATAD 2 may apply to them already in 2021.

In detail

Only a few minor changes have been brought to the text of the Bill during the legislative process. We refer therefore to our prior Newsletter for further details as to the scope and various scenarios of hybrid mismatches that are covered by the Law:

The vote of the law was preceded by the report of the State Council issued on 10 December and the report of the Budget and Finance Commission issued on 13 December. Both include extensive comments which are very useful even if they are not per se representing an amendment or official clarification of the law.

As an example the State Council outlined its interpretation and reading of various points in the Bill as regards certain significant items, notably:

  • Tax adjustments without creation of economic rights should not be considered as “payments”;
  • No “counterfactual test” should be required based on the text of Law (in line with ATAD 2). This implies that in case the recipient of a payment under a financial instrument does not include it for tax purposes by reason of its tax status, it should not be necessary to assess whether the recipient would have included the payment if it was an ordinary tax payer in the same jurisdiction;
  • No hybrid mismatch should arise if the jurisdiction of the recipient applies a zero rate, low rate or if it applies a territorial regime;
  • Direct and indirect investors in an investment fund holding less than 10% of the ownership rights and entitled to less than 10% of the profits in the fund should be deemed not “acting together” with any other investors unless demonstrated otherwise by the tax authorities;
  • The application of the hybrid mismatch rules should not give rise to multiple taxation. As such, a CFC inclusion in a foreign jurisdiction should be an inclusion for the purpose of the hybrid mismatch rules. Similarly, dual inclusion income should be determined so as to not give rise to multiple taxation.

The reports of the State Council and of the Budget and Finance Commission left the text of the legislation as now voted largely unaltered from that set out in August 2019 in the Bill. The Budget and Finance Commission did however state that further guidance, potentially in line with that emanating from the State Council, might yet be appropriate, not least in the form of a tax authority Circular or a Grand Ducal Decree addressing various points. There is however no certainty over when, or even whether, such a Grand-Ducal Decree or Circular might emerge.

In conclusion

If not already done, taxpayers have to assess their situation considering the potential impact of the Law now effective as from the tax years starting on 1 January 2020, except for the additional “reverse hybrid” measures (implementing Article 9a of ATAD 2) applying from the 2022 tax year.

[1] Subject to confirmation by the Luxembourg State Council that no second hearing is required

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