Hybrid Mismatch Arrangements – A Myth or a Problem That Still Exists?

Abstract

In recent months, a fierce discussion on Base Erosion and Profit Shifting (BEPS), in particular concerning the use of hybrid financial instruments, has been rumbling. In addition to the OECD Report released under Action 2, the European Commission has also made its contribution to the fight against “international tax arbitrage” by issuing Directive (2014/86/EU) amending the Parent-Subsidiary Directive. The authors investigate various tax classification criteria of financial instruments in each EU Member State, and indicate the causes of qualification conflicts leading to unintended double non-taxation. The article provides a detailed examination of the operation of the proposed “linking rules” at the OECD and EU level. In this context, the authors address the question whether the solutions published by the OECD and the EU are an effective tool in the prevention of qualification conflicts, and whether, in the absence of a tie-breaker rule, the interrelation of these approaches may lead to double taxation. Further, it will be examined whether the newly introduced standards are able to ensure international coherence in corporate income taxation.

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