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Faculteit Rechtsgeleerdheid Universiteit Gent Academiejaar Faculteit Rechtsgeleerdheid Universiteit Gent Academiejaar 2013-2014 THE INTRODUCTION OF A FINANCIAL TRANSACTION TAX: BELGIAN, EUROPEAN AND INTERNATIONAL INITIATIVES. Masterproef van de opleiding 'Master in de rechten' Ingediend door Wouter Van Der Veken (studentennr. 00903449) Promotor: prof. dr. Michel Tison Commissaris: Jan Loosen [Page intentionally left blank.] Faculty of Law Ghent University Academic Year 2013-2014 THE INTRODUCTION OF A FINANCIAL TRANSACTION TAX: BELGIAN, EUROPEAN AND INTERNATIONAL INITIATIVES. Master's thesis in the 'Master of Laws' program Submitted by Wouter Van Der Veken (student no. 00903449) Supervisor: prof. dr. Michel Tison Commissioner: Jan Loosen PREFACE AND ACKNOWLEDGEMENTS Being drawn to the often (mildly) esoteric area of banking, financial and capital markets law and blessed with a healthy interest in tax law, the financial transaction tax seemed like (and proved to be) an exciting and challenging multidisciplinary subject matter for a master's thesis. I could not truly foresee, however, how far the research would lead me into the realms of EU law and, to a lesser extent, international law. Writing a thesis on a topic as politically polarized as financial transaction taxes obviously entails some pitfalls. In an informational environment dominated by political and interest groups, it is difficult to catch sight of any nuance. Even doctrinal texts and legal analyses are often the product of enthusiastic advocacy or fierce opposition. This is not necessarily detrimental to quality and insight, but it does make an impartial analysis somewhat more demanding. Nevertheless, I have tried to stick to the facts and reference all views. Throughout the legal analysis, I have attempted to stay true to the CJEU's approach as evidenced by practice, rather than following strict theoretical concepts and patterns. The latter would ever too often lead to premature conclusions. Time will tell whether this thesis was written on the eve of the world's first supranational and broad-based FTT, to be transposed in 11 countries of the EU. Some accounts report evolutions in the negotiations towards a less broad FTT in an initial phase. The research for this thesis was based on the Commission's proposal as it currently stands. Possible changes in the near future, however, are likely and, due to their uncertain nature, could not be factored in. I would like to express my sincere gratitude to professor dr. Michel Tison, without whose forthright remarks and questions, not seldom urging me to go back to the essence, I would have been lost in the complexity of the financial sector and EU law. I would also like to thank some other people who were essential for the completion of this thesis. In particular, I would like to thank Lynn, my parents, grandparents, family and close friends for their kind understanding and moral support. Aalst and Hamburg 6 May 2014, Wouter Van Der Veken IV TABLE OF CONTENTS PREFACE AND ACKNOWLEDGEMENTS.................................................................................................... IV TABLE OF CONTENTS ............................................................................................................................... V LIST OF ABBREVIATIONS USED ............................................................................................................. VIII INTRODUCTION, SCOPE AND OBJECTIVES ................................................................................................ 1 FIRST PART - BELGIAN, EUROPEAN AND INTERNATIONAL INITIATIVES: HOW THEY PROVIDE GUIDANCE IN FUTURE TAX DESIGN ............................................................................................................................ 3 I THE EMERGENCE OF THE FINANCIAL TRANSACTION TAX .......................................................... 3 1 The FTT as a steering tax ........................................................................................................ 3 2 FTTs in practice: pre-crisis FTTs ............................................................................................ 5 3 FTTs in practice: post-crisis FTTs .......................................................................................... 6 3.1 National initiatives........................................................................................................... 6 3.2 A European FTT? ............................................................................................................ 7 4 Overview of selected FTTs ..................................................................................................... 8 II RELEVANT FACTORS FOR THE EVALUATION OF POLICY OBJECTIVES AND EFFECTS .................. 11 1 FTTs and the standoff between market efficiency and Keynesian economics ...................... 12 2 FTTs as revenue-raising taxes ............................................................................................... 13 3 Possible adverse effects ......................................................................................................... 14 4 Are FTTs easily avoided? ...................................................................................................... 15 5 Conclusion: importance of balanced tax design in achieving the social optimum ................ 16 III COMPARATIVE ANALYSIS OF TAX DESIGN ............................................................................. 16 1 Methodology and rationale .................................................................................................... 16 2 Comparative analysis: overview of design options and selected issues ................................ 16 2.1 Taxable event ................................................................................................................ 16 2.1.1 Chargeable transaction .......................................................................................... 17 2.1.1.1 Object of the transaction: equity and debt securities, currencies and/or derivatives ......................................................................................................................... 17 2.1.1.2 On- and/or off-exchange traded instruments ...................................................... 22 2.1.1.3 High-frequency trading ...................................................................................... 23 2.1.1.4 Primary market operations and restructuring ..................................................... 23 2.1.1.5 Exemptions for certain instruments .................................................................... 25 2.1.1.6 Exemptions for certain transactions ................................................................... 27 2.1.1.7 "Transactions": moment of chargeability ........................................................... 28 V 2.1.1.8 Conclusion .......................................................................................................... 30 2.1.2 Taxable Person ...................................................................................................... 31 2.1.2.1 General FTT or aimed at financial institutions ................................................... 31 2.1.2.2 Transaction party ................................................................................................ 32 2.1.2.3 Exemptions ......................................................................................................... 33 2.1.2.4 Intermediary relief and relief for central counterparties ..................................... 34 2.1.2.5 Transactions within groups ................................................................................. 38 2.1.2.6 Conclusion .......................................................................................................... 39 2.1.3 Territorial scope ..................................................................................................... 40 2.1.3.1 Connecting factors: general ................................................................................ 40 2.1.3.2 EU 11 FTT territorial scope: establishment, contagion effect and economic substance defence .............................................................................................................. 46 2.1.3.3 Conclusion .......................................................................................................... 47 2.2 Tax base ......................................................................................................................... 47 2.2.1 Which amount? ...................................................................................................... 48 2.2.2 Netted amount at settlement .................................................................................. 51 2.3 Tax rate .......................................................................................................................... 51 2.3.1 General .................................................................................................................. 51 2.3.2 High speculation-aimed rate .................................................................................. 54 2.4 Conclusion: tax base and rate ........................................................................................ 54 2.5 Tax collection and enforcement .................................................................................... 55 2.5.1 Importance of financial market infrastructure and regulation ............................... 55 2.5.2 Person liable to pay ..............................................................................................
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