On 29 May 2017 the Council of the European Union formally adopted a Council Directive (EU) 2017/952 (“the new Directive”) amending Directive (EU) 2016/1164 (“Anti-Tax-Avoidance Directive”) as regards hybrid mismatches with the tax systems of countries outside the EU (i.e. “third countries”). The new directive is a milestone of the EU’s implementation of the OECD's guidance on hybrid mismatches under Action 2 of the Base Erosion and Profit Shifting (“BEPS”) project.
The new Directive extends the EU’s anti-hybrid rules aiming to neutralize situations where international corporate groups exploit disparities between tax regimes in EU Member States and non-Member States in order to decrease their total tax liability. The anti-hybrid rules will apply to all taxpayers that are subject to corporate tax in one or more Member States, including to EU permanent establishments of entities resident for tax purposes in a third country.
The EU Member States should transpose the Anti-Tax-Avoidance Directive by 31 December 2018 and apply it from 1 January 2019, except for the exit taxation rules to be transposed by 31 December 2019 and applied from 1 January 2020. Pursuant to the Anti-Tax-Avoidance Directive Member States which have targeted rules that are equally effective to the interest limitation rules of the new Directive, may apply them until the OECD reaches agreement on a minimum standard, or until 1 January 2024 at the latest.
The new Directive should be transposed by EU Member States into their national laws and regulations by 31 December 2019 and applied from 1 January 2020, except for the reverse hybrid mismatches rules which should be transposed by 31 December 2021 and applied from 1 January 2022.