Financial Services Ireland

New opportunity open to pension funds

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New opportunity open to pension funds

In view of the fact that a massive trend of claims was filed by investment funds, based on the European Union Court of Justice (CJUE) case law (Aberdeen, Santander), a new opportunity is open to pension funds.

Indeed, the European Commission (EC), supported by the EY network of member firms, has launched a study aiming to identify potential discriminations on EU investments made by pension funds.
The outcomes of the study, to be published soon, reveal that the potential discriminations on EU investments are much more numerous than expected (more than 70, involving at least 20 Member States).

This large number can be notably explained by tax exemption benefiting domestic pension funds, whereas non-resident pension funds incurred a withholding tax (WHT) on outbound revenues. In other cases, domestic pension funds benefit from a taxation on a net basis (i.e., deductibility of technical reserves), leading to a de facto exemption of the income.

Background

EY assisted the EC in a new study, whose goals were to identify potential tax obstacles on cross-border investments made by pension funds and life insurers (in the framework of their unit-linked contracts). The starting point of the study was the Commission/Finland CJEU case law whereby the Court ruled that technical reserves booked by Finnish pension funds being directly linked to the income received and leading to a de facto exemption of such income put resident and nonresident pension funds in a comparable situation. As a result, resident and non-resident pension funds should benefit from the same tax treatment.

Why act now?

  • Despite positive developments in the regulations of certain countries, discrimination between resident and nonresident pension funds remains widely present across the EU, and opportunities to reclaim unduly collected taxes are not always identified and acted upon.
  • There are statutes of limitations to restrict the periods for which claims can be made. These are typically, but not always, on a calendar-year basis, and they need to be monitored so that opportunities to file claims are not missed.
  • Pension funds that proceed with a complete review of their European portfolio can identify potential reclaim opportunities and take appropriate actions to preserve their rights. Failing to do so may end up reducing the extent of reclaim opportunities due to statutes of limitations, as was the case for certain pension funds following the Santander reclaim opportunities.

Results of 2017 EY study

The study clearly shows that almost all the EU Member States distinguish between residents and nonresidents on the taxation of a more-or-less range of revenue deriving from investments made on their own jurisdictions (dividends, interest, real estate revenue, capital gains).The EC intends to challenge any sources of the potential discriminations, which can be categorized as follows:

  • Obvious discriminatory tax treatments: tax exemption or de facto tax exemption thanks to a taxation on a net basis mechanism of the resident vs. WHT levied on the non-resident (e.g., Germany, Netherlands, Spain, Denmark)
  • Heterogeneous tax administrative practices due to unclear legislation (e.g., Poland)
  • Higher tax administrative burden on nonresidents (i.e., extra filing procedures to request a refund of the WHT borne)

All of the above situations should lead to restricting the free movement of capital (protected by Article 63 of the Treaty on the Functioning of the European Union) as they discourage nonresidents from making investments in a Member State, or discourage Member States’ residents from doing so in other States; for this reason, they must be abolished to achieve a true single market for capital.

To read this latest Insurance Alert in full please click here or on the link in the banner below, and if you’d like to discuss any of the areas covered don’t hesitate to get in touch with me, or your usual EY contact.

Sandra Dawson

Associate Partner
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