Читать книгу The IP Box Regime. A Study from an International and European Perspective - Elizabeth Gil García - Страница 11

The establishment of a clear and coherent definition of R&D&I for tax purposes is not a trivial issue. An increasing number of countries grant tax incentives to several activities and it would be desirable that those incentives were offered to the same type of activities, regardless of the country where the activity is carried out. That is to say, activities unanimously considered as R&D&I. OECD Manuals fulfil this point to some extent. Indeed, several countries have implemented the OECD definitions on R&D&I in their legal system, e.g., the French Tax Code (Code Général des Impôts, CGI) defines R&D in similar terms of the Frascati Manual.35 There are, however, significant differences among countries, so it is not possible to find a single and general R&D&I concept for tax purposes.

Moreover, it should be noted that each country will define R&D&I based on its own political, social or economic circumstances, and even such definition may vary over time. This point makes, first, difficult to ‘harmonise’ the R&D&I concept for tax purposes and, second, the variations over time may provide undertakings with legal uncertainty. In this sense, predictability of a tax policy is crucial for corporations to integrate the tax benefit in their R&D&I investment plans, which can span many years. If a policy instrument is frequently changed and granted on an irregular basis, a tax incentive will not be fully taken into account when firms make their investment decisions. This decreases then the effectiveness and efficiency of the policy.36

While the majority of governments grant tax incentives to R&D, other countries, e.g., Spain or France, have implemented also innovation tax reliefs. As a result, in Spain, article 35 of the Corporate Income Tax Law (Ley del Impuesto sobre Sociedades, LIS) defines not only R&D but also innovation (in general terms, following OECD Manuals).37 Both R&D and innovation imply a significant scientific or technological improvement. However, while innovation must be addressed to get some outcomes, it is not required a specific result from R&D activities. In the case of R&D activities, it is required an objective novelty, which means that the solution to a problem should not be readily apparent to someone familiar with the basic stock of common knowledge and techniques for the area concerned.38 On the contrary, innovation activities require subjective novelty, which implies that a product or process is new to the firm.39 The LIS grants a better tax treatment to R&D activities rather than innovation activities.40 In fact, this is the widespread tendency among countries. In France, the tax credit amounts to 30% of the expenses related to R&D up to €100 million (i.e. €300,000), and 5% for the excess; while a tax credit is available for innovation expenditures of small and medium-sized enterprises (SMEs) that amounts to 20% of the expenditures, up to €400,000 (i.e. the maximum credit is €80,000).41

On the other side, some countries make differences between basic (or fundamental) research and applied research. In Denmark, for instance, tax incentives on R&D refer in general to applied research. Thus, basic research is excluded unless otherwise agreed.42 According to an OECD report published in February 2019, few countries explicitly incentivise basic research.43 For instance, in Spain, article 35 of the LIS refers both to basic research and applied research. In Hungary, companies may deduct the direct costs of basic research, applied research and experimental development (conducted by the taxpayer as its own activity).44

Similarly, in India, the Income Tax Act 1961 (ITA) permits a deduction for R&D expenditures whether or not they are associated with basic research, applied research or experimental research. Thus, businesses are encouraged to perform several categories of scientific research.45 In Australia, the Income Tax Assessment Act (ITAA) 1997 distinguishes between core R&D activities and supporting R&D activities. The first category refers to R&D in the terms of the Frascati Manual, including the criteria of novelty, uncertainty and systematic.46

Moreover, when defining the scope of the tax incentive, the broader or narrower definition taken into account will extend (or not) the tax benefit to more or less STA. That is to say, a country that strictly follows OECD definitions will not grant tax incentives to the excluded activities (e.g., software development). Nevertheless, some jurisdictions have introduced preferential tax measures not only for R&D&I but also for other STA. For instance, in Austria, before January 2016, an education allowance was granted in respect of expenses incurred for the education and training of employees.47 In Colombia, income derived from software developed in Colombia and protected under patents until 31 December 2017 was exempted for taxable years 2016 and 2017.48

In other cases, R&D&I definitions are related to some specific sectors or activities. This is the case of Belgium, whose Income Tax Code (Code des Impôts sur les Revenus, CIR 92) links R&D with environment challenges.49