VYBRANÉ OTÁZKY DANE Z PRÍJMOV V KRAJINÁCH EU V KOMPARATÍVNOM REŽIME

MAG. RAFAŁ BERNAT
VEDÚCI ODDELENIA VEREJNÝCH FINANCIÍ
(DOKTORAND)
FAKULTA PRÁVA A VEREJNEJ SPRÁVY
UNIVERZITA MIKULÁŠA KOPERNIKA (NICOLAUS COPERNICUS UNIVERSITY)
TORUŃ, POĽSKÁ REPUBLIKA
E-MAIL: MAGISTERPRAWAA@INTERIA.PL

KĽÚČOVÉ SLOVÁ:
daň z príjmov, porovnávanie právnych systémov, komparatívne právo

KEY WORDS:
income tax, legal system comparison, comparative law

ABSTRAKT:
Článok sa zameriava na otázky dane z príjmov v Európe. Autor článku skúma spoločné znaky a rozdiely v štruktúre daňových noriem v rámci Európy. Úvahy autora sa týkajú predovšetkým európskych daňových sadzieb a rozsahu zdaňovania v jednotlivých členských štátoch EU.

ABSTRACT/SUMMARY:
The article focuses on comparative income tax law (from a European perspective). The author examines the common characteristics and the differences between various structural elements of European tax systems. Comments relate in particular to tax rates and the scope of taxation applicable in various EU Member States.

INTRODUCTION

A study of diversity of legal systems of the EU Member States implies categorization of those jurisdictions based on specific criteria and classifications established for the purpose of comparative review. Comparative law includes methodologies used for comparison of the substantial rules of national law with foreign laws. The term „comparative study“ is used in the academic writings as „formulation of relatively homogeneous features of at least two objects in order to determine similarities and differences between them”.

Contemporary comparative law is construed as analysis of the structure of various legal systems, of legal relationships and of the development of the laws. The present study aims at a review of the structure of the tax systems of the EU Member States in the area of income tax. It will also be examined how their legislation on income tax developed. In addition, essential features of those tax systems will be compared and certain common elements will be exposed.

CHARACTERISTICS OF THE POLISH TAX SYSTEM

It is assumed that the tax system is a set of internally consistent elements – namely of the taxes applicable in a specific jurisdiction^[1]. The (income tax) system applicable in a specific country includes normative acts, both domestic and international, concerning the structure of income tax in that country^[2]. Any such jurisdiction exercises the authority (and is actually also under the duty) to establish such a tax system, as the EU laws have left to the EU Member States significant margin of legislative discretion to stimulate in their territories the economic, cultural and social conditions by way of fiscal measures^[3]. This results also from the fact that income tax constitutes a source of important revenues of the national budgets. Therefore, it should be the beneficiary of the income tax revenues (the national public authorities) that should have the decisive power to establish the nature and the level of income tax. Poland applies progressive personal income tax (with certain exceptions) and a flat rate corporate income tax, levied on the income gained by a natural or a legal person, respectively.

Polish income tax could be best characterized as direct, non-refundable and personalized public charge imposed on the income generated by a taxable entity^[4]. It should be noted that Polish corporate income tax was implemented as early as in 1920^[5]. However, it has been considerably modified since that time^[6] (including also under influence of EU law) so as to align to tax systems of the neighbouring European countries. Currently the rates of personal income are 18% and 32 % (a flat 19 % rate is also applicable to certain categories of income). A punitive rate of 75% is also applied in personal income tax.

Corporate income tax is levied on corporate entities which as a result of their commercial activities gain income (i.e. their business revenues exceed the expenses incurred to generate them). It is assumed that the tax cannot be excessive as it would result in decrease of investment and would encourage taxpayers to avoid reporting income (or to declare losses on a permanent basis)^[7]. Corporate income tax is levied at the general rate of 19% (with exception of certain withholding taxes), with the punitive rate of 50% applicable in case of transfer pricing abuse.

It is assumed that the Polish law does not provide for income taxes other than personal income tax and corporate income tax^[8].

Polish income tax laws provide for various reliefs and exemptions. Preferential tax rules apply particularly to groups with modest income, as well as to parents and farmers. Legislators have deliberately granted fiscal benefits to those groups. It is argued that taxpayers with particularly low income are unable to bear the weight of public dues to such extent as that the middle class or the most prosperous groups of the society. Forced execution of public liabilities from individuals who originally did not even have the ability to pay would be contrary to the underlying purpose of the Personal Income Tax Act. As far as single parents or married couples with children are concerned, they enjoy limited benefits in the form of certain tax reliefs and of the joint filing, available to spouses. Parenthood and marriage are hence rewarded by the state as legitimate and useful social activities.

COMPARATIVE STUDY OF INCOME TAX SYSTEMS WITHIN THE EU

The legal system of the European Union (the primary law and the secondary law) derives both from the traditions of the German-speaking countries and those with prevalent Roman legal culture^[9]. Accordingly, the European tax system contains elements found in each of the EU Member States. Tax systems in all the EU Member States feature a catalogue of common elements in the area of income tax on individuals^[10]. Income tax is calculated based on the total income of an individual. The burden of the tax takes into account the earning capacity of the individual as well as its personal property. Taxation depends also upon the residence of the taxpayer. However, although these elements are present in all tax EU tax systems, their specific contents and application vary between the Member States. When comparing the nature of income taxes of the EU Member States it cannot be ignored either that their laws are exceedingly affected by the double taxation treaties. Admittedly, these treaties have been developed based on the OECD Model Convention^[11], but some of them include also inter partes provisions which are peculiar to them^[12]. For instance, the tax treaty between Poland and France^[13] (Article 7-9) provides for specific rules on the taxation of insurance companies and the Polish tax treaty with Austria^[14] provides that corporate taxation rules also apply to the profits of a so-called ,,silent partner’’^[15].

Certain structural divergence between the income tax systems of the EU Member States also appears. In particular, the European tax law provides no single definition of income^[16]. In the UK, notwithstanding the concepts of residents and non-residents a notion of a trust is also used^[17]. In order to determine the tax status of a person, the EU Member States apply various criteria: the number of days in which the taxpayer resided in the national territory (Norway, Ireland), possession of a home or place of residence (France, Netherlands) and the economic centre of interests (Spain, Sweden, Luxembourg, Germany)^[18].

Another step in the comparative review of the individual and corporate tax systems in the EU Member States is comparison of the current tax rates in those countries^[19].

UK tax system is characterized by high rates of income tax. An individual can be taxed at the rate of 20%, 40% and 50%. In the case of capital gains the tax rate is 18% and 28%. In Luxembourg, the income tax rate in case of individuals ranges from 8% to 40.56%. Swedish residents pay a state income tax – statlig skatt (at the rate of 20% and 25%) and a local tax (31%) – kommunalskatt. Therefore, the actual income tax burden (including social insurance contributions) may reach 57%. In the Netherlands, the tax rates on personal income are as follows: 1.95%, 10.8%, 42% and 52%, while in Germany – 14%, 24%, 42% and 45 %. German residents pay also other income taxes – the church tax (up to 8%) and the municipal tax (3.5%). In Iceland, the income tax on individuals varies from 37.34 % to 46.24 % of the income. Belgian legislation provides for the tax rate on personal income in the amount of 20%, 30%, 40%, 45% and 50%. Bulgarian residents pay 10% flat tax^[20]. PIT in Cyprus is charged at the rate of 20%, 25%, 30% and 35%^[21].

The corporate tax rate is usually higher than the standard rates applicable to individuals. This is due to the fact that corporate entities (companies, foundations conducting commercial activities etc.) usually hold much more extensive property than individuals. Corporate income tax is 26% in Sweden, while it is 25% in Austria. In other European countries, corporate income tax in 2013^[22] is imposed at the following rates: Belgium (33.99%), Bulgaria (10%), Croatia (20%), Cyprus (10%), the Czech Republic (19%), Denmark (25%), Estonia (21%), Finland (24.5%), France (33.33%), Greece (26%), the Netherlands (25%), Spain (30%), Iceland (10%), Ireland (12.5%), Lithuania (15%), Lichtenstein (12.5%), Latvia (15%), Malta (35%), Norway (28%), Germany (29.55%), Portugal (25%), Romania (16%), Slovakia (23%), Slovenia (17%), Sweden (22%), Hungary (19%) and Italy (31.4%). The countries under consideration could thus be divided into three major categories, including the countries with low tax rates (Iceland, Liechtenstein, Bulgaria), medium tax rates (Slovenia, Hungary, Czech Republic) and high tax rates (France, Italy, Belgium) on business income. The natural consequence of the fiscal policy applied by the countries applying a low tax rate to foreign undertakings or to capital companies is their ability to attract increasing foreign investment. It is worth noting that certain territories in Europe do not apply income tax at all, which is the case of the Isle of Man (Island of Man) or Jersey. However, these territories are not part of the European Union, despite the fact that they remain under the control of a Member State (the United Kingdom). The average rate of income tax in the European Union in 2013 is 20.67%.

The legislation of all the EU Member States provide for reliefs and exemptions from income tax. In the UK, an entrepreneur can take advantage of the incentives targeted at businesses (entrepreneurs' relief), which allows for the preferential income tax rate of 10%. An entrepreneur can, however, benefit from this relief only once and on the condition that its income does not exceed GBP 10 million. Another relief (roll-over relief on transfer of business) is related to the deferral of the tax point in the income tax. An entity making a contribution to a capital company in exchange for its shares would be taxed on capital gains only upon the sale of the shares so acquired. In Luxembourg, the sale of a minority shareholding in a company is exempt from income tax. Swedish entrepreneurs can use part of the income to fund their intended capital expenditures (preferential tax rate of 23% would apply). It is also worth mentioning that all the EU Member States apply certain form of a basic tax allowance (a tax-free amount), as exemplified by the Netherlands (EUR 20.780), Germany (EUR 8.130) and Finland (EUR 16.100). Such allowance warrants that a taxpayer retains minimum property necessary to cover his or her living expenses.

In all the EU Member States married couples are given preferential treatment in the area of income tax (for example, annual joint filing). Also, elderly people can count on tax breaks. In Germany, a person aged 55 years who transfers his or her business is exempt from taxation on the respective income up to the amount of EUR 45.000.

TRENDS OF DEVELOPMENT OF THE TAX SYSTEMS UNDER REVIEW

In compliance with Article 114 and 115 of the Treaty on the Functioning of the European Union^[23] regulations of the EU Member States should be subject to harmonization. However, notwithstanding the directives harmonising specific areas of taxation such as cross-border dividends, interest and royalties paid between related corporations, cross-border corporate restructuring and individual interest savings held in another EU Member States, until today no legal acts (directives or regulations) have been adopted by the EU that would comprehensively determine the income tax system of the EU Member States^[24].

The tax systems of the EU Member States are changed by the EU legislators with the purpose^[25] to combat harmful tax competition between them, remove fiscal obstacles to cross-border activities of the EU companies and mitigate complexity and multitude of the existing tax treaties. Still, it must be admitted that the competitiveness of the tax systems of the EU Member States may have both the negative and the positive dimension. Competition is consistent with the principle of subsidiarity and decentralization, increases the efficiency of the tax systems and provides the less developed countries with the ability to booster faster economic growth^[26]. However, such competition also leads to fiscally-driven inefficiencies in the allocation of economic activities and the disproportionate distribution of income and wealth in society^[27].

Possible effects of the changes made in the income tax law on the entire tax system are also debated. According to certain authors^[28], these changes must always satisfy the conditions such as constitutionality, effectiveness, lack of a significant reduction in the budgetary revenue and consistency with other public dues. During the recent years, the primary objective which the tax legislators faced has been to develop such a system for the taxation of income that would ensure the highest possible revenue for the state budget, without the simultaneous degradation of the wealth of individuals and reduction in economic activity^[29]. Characteristics of various nations are also particularly relevant in that respect^[30]. Specifically, rich nations (Sweden, Germany) are prepared to accept high taxes, but in return they require from the public authorities social services and security. In the Western Europe taxpayers adopt a rather demanding attitude towards the public authorities. As, for instance, German residents pay a large share of their income to support public security services, any incompetence of the police is regarded as a sign of poor management of the public funds (collected through taxes). On the other hand, in the countries of Eastern Europe (such as Romania and Bulgaria), which levy lower income tax, taxpayers do not require to such extent that the budget revenues from taxes will be used to improve (or maintain appropriate) living conditions of the citizens. In those countries, income tax is construed rather as a duty of the taxpayer and not as a contribution towards implementation of the tasks entrusted to the public authorities in the general interest.

It is worth noting that the discussion of whether the income tax in European countries is to be linear or proportional has been on-going for years and will not probably end in the imminent future.

The idea to introduce a flat-rate income tax is justified by the fact that it would leave to a taxpayer a higher net income (as compared with a progressive tax) to invest in the national economy (e.g. by purchasing consumer products)^[31].

Questions are also raised^[32] as to the legitimacy of the application of a uniform tax rate (e.g. 22%) to all taxpayers (regardless of legal personality) and as to the mechanisms linking the tax rates with the character of the source of revenue. Such a solution would seem fair, as the source of income affects also its value. However, the idea to impose the same tax obligations on all the taxpayers, whether individual or corporate, is in contradiction with the rule of proportional participation in public duties, depending on the taxpayer’s ability to pay. The correct solution is to tax income rather than revenue (which does not reflect the actual profit). If the taxpayer gains actual profits (genuine income) the latter cannot claim that taxation of that (at least minimal) income is an act against the rule of law^[33] (per fas et nefas – by any means, even those unauthorized).

CONCLUSIONS

Comparison of the tax systems of the EU Member States in the area of income tax allows for certain consistent conclusions. Tax as a public charge is embedded in the legal systems of most European countries^[34]. Income tax is a permanent tribute collected by the state in relation to the wealth of the taxpayer. Its rate, object, taxable entities and the criteria for granting tax reliefs and exemptions are set by the legislative authority of each country. European Union law only defines the rules of conflict (including partly avoidance of double taxation) of income tax systems so that a taxpayer changing its domicile and place of employment is effectively only taxed once. It further appears possible to conclude that the nature of the income tax system of a particular country depends on the wealth of that country, its political system, the wealth of individual citizens and distribution of consumer goods in the past. Poland is a country with an average wealth level, in which citizens have little confidence in the tax administration. The main factor stimulating Polish taxpayers to settle their tax liabilities is their awareness of potential sanctions. During the previous historical period the most entrepreneurial individuals, those which were most capable and diligent, did not actually increase their wealth. That became possible only with the transformation into the market economy. Thus, Polish residents consider income tax mainly as a constraint and a partial seizure of their income by the state. This approach is contrary to that prevailing in Sweden, which is a wealthy economy for centuries free from damage caused by military conflicts (including political neutrality during the Second World War). Swedish residents are accustomed to active participation of the state in all the aspects of their life (safety, health, higher education). Therefore, they are also willing to transfer to the state a part of their property by way of income tax (even 51% of income), since they expect that that contribution will be indirectly reverted to them through various benefits offered by the public authorities.

The author would also like to point out that the comparison of income taxes in force in the EU Member States is a complex and multifaceted issue which should be further explored in a comprehensive monographic study.