On 22 December 2022, the new directive establishing a global minimum taxation threshold for large companies was published in the Official Journal of the European Union. Its objective is to establish a minimum level of international taxation for multinationals. To this end, it establishes a framework of rules that foresees that, when the effective rate in a country is lower than 15%, an additional or complementary tax is levied.
The OECD estimates that this major development in international taxation will raise 220 billion euros globally.
Which companies will be affected
Council Directive (EU) 2022/2523 will apply to those corporate groups with a presence in the European Union (EU) whose annual revenues have been equal to or greater than EUR 750 million in at least two of the previous four financial years. This includes ultimate parents, intermediate parents and subsidiaries resident in the EU.
When will the minimum tax directive enter into force
This directive will have to be transposed into Member States’ legislation during 2023, in order to start applying the income inclusion rule from 1 January 2024. The under-taxed profits rule will start to apply from 1 January 2025.
How the 15% minimum tax will be paid
Income inclusion rule
The ultimate EU-resident parent of the group must pay the additional tax of the parent itself and of any of its subsidiaries, whether resident in the EU or not, where both are taxed at a rate of less than 15%.
Under-taxed profits rule
In some situations the income inclusion rule cannot be applied. For example, where the jurisdiction in which the parent is located does not provide for it. In these cases it will be the intermediate parent entities or EU resident subsidiaries of the group that will have to pay the supplementary tax.
Complementary national taxes
In addition, the directive allows Member States to adopt domestic taxes to ensure a minimum taxation of 15% for companies located in their jurisdiction. These domestic top-up taxes will be deducted from the overall top-up tax of the group.
This is how the effective tax rate will be calculated
The calculation of the effective group tax rate is a complex operation.
First, the effective tax rate is measured in each jurisdiction separately. To determine the effective tax rate, the adjusted covered taxes are divided by the eligible profits and losses.
The adjusted hedged taxes correspond to corporate income tax, albeit with some corrections. For example, in jurisdictions where the nominal tax rate is higher than 15%, deferred tax assets and liabilities are recalculated at 15%.
Eligible profits and losses are calculated on the basis of the profit and loss account used to prepare the consolidated financial statements. Adjustments are made to this accounting magnitude to eliminate income or expenses that are usually excluded from the tax base for corporate income tax purposes according to the different regulations in the various countries. For example: qualified dividends, impairment of fixed assets, expenses for illicit payments or penalties…
Consequences in Spain
These new rules should not have a major revenue impact in Spain, given that there is already a domestic minimum taxation rule that already puts the effective corporate rate, in general, above 15%.
However, some groups could be affected, since in some cases it is still possible today to be taxed below 15%. This is the case for companies under special tax regimes or applying double taxation deductions.