Brexit outlook on taxation of dividends and capital gains in the UK
As it is known, the referendum on the permanence of the United Kingdom in the European Union took place on 23 June 2016 and saw the prevalence of the votes in favor of leaving the EU attested to 51.9%, against 48.1% of the voters who voted to stay. Following the vote, the notification of the activation of the exit procedure took place, on March 29, 2017, pursuant to art. 50 of the Lisbon Treaty.
It follows that England will withdraw from the treaties of the European Union with important consequences on the legal and economic landscape. It is evident that this event will strongly influence the theme of double taxation, with special regard to participation exemption on inter-company transnational dividends. However, the effects will be neither immediate nor easily foreseeable.
Now, as well as the undeniable value of current affairs, this topic is also a very interesting field of coordination between all the tax regulations on taxation of dividends and capital gains in Italy and in the UK. As far as direct taxation is concerned, the main impacts should be verified with regard to the application of the parent-subsidiary directive concerning the payment of dividends. With Brexit, and the exit of the United Kingdom from the European Union, it will determine the non-applicability of the retention exemption regime provided for by the Parent-Subsidiary Directive n. 90/435 / EEC. This will mean that the exemption from withholding tax on profits distributed by a subsidiary to the parent company and the prohibition of the collection of any withholding tax on the profits received from the parent company by the subsidiary in the State will no longer apply to the English companies.
Therefore, one of the possible effects resulting from Brexit, which will no longer allow the application of the Parent-Subsidiary Directive, will be the impossibility to enforce the dividend withholding tax. Following the UK’s exit from the EU, this preferential regime will not be applicable anymore, since the subjective requirements required by the law would no longer be satisfied, such as residence in the Union by the company that distributes the dividends. Accordingly, dividend distribution should be subject to the conventional rules, in the case of drafting of double taxation agreements between the United Kingdom and the State in which the company distributing the dividends resides. As we know, these rules do not guarantee the same tax effects. In fact, it could be applicable only art.10 of the OECD convention against double taxation. Indeed, the first paragraph of the art. 10 of the OECD Model provides that the transnational dividends are taxed in the country of residence of the beneficiary of the dividends. However, on this issue the OECD does not go further, and does not express or indicate limits nor methods of taxation. For this reason, the mechanism outlined by art. 10 OECD can abstractly imply that the tax burden in the country of residence is the only one to which the dividend is subject, but only if the source state does not provide, in turn, a levy on the same income deriving from the participation.
On the contrary, it is possible that the source state provides in its national law a levy on the same income deriving from the participation. Article 10 of the OECD Model, does not prevent this phenomenon, but regulates it in its second paragraph. In fact, the second imposition of the source state is permitted with maximum limit to the levy. If the “beneficial owner” clause is met, taxation in the source state cannot apply a rate higher than 5% on the gross amount of the dividends, if the beneficial owner is a company that directly holds at least 25% of the share capital of the distributing company. If the dividends do not meet the aforementioned characteristics, the applicable rate cannot exceed 15%. Obviously, these limits are caps. In fact, nothing prevents the contracting states from agreeing to lower rates. In practice it is known that the rate most frequently adopted is 10%.
For this reason, the following appears to be the most suitable solution. That is, either a multilateral convention between UK and member states, or a bilateral convention between UK and EU itself. With this convention, the double taxation on dividends will be regulated under international law and not under EU law. This will have the consequence of a less biased treatment towards English companies with respect to the “as-is” state. In fact, it won’t be justified anymore by the EU principal objective of leaving room for more economically “healthy” logics such as the choice of the country that allows a maximization of economic efficiency in business activity. All this because the latter objective is applicable only to member states.