Читать книгу The IP Box Regime. A Study from an International and European Perspective - Elizabeth Gil García - Страница 13

Terms and expressions used by jurisdictions may, in certain cases, provide firms with legal uncertainty. In truth, it is very common that they are not able to distinguish R&D&I projects and other activities based on S&T. Therefore, the most feature that has to be present in a legal system is the legal certainty provided to all citizens and economic players. Precisely, those inaccuracies may contribute to different interpretations of a tax provision.56

In the author’s view, the tax definition should refer to both basic and applied research. Indeed, research aims to generate new knowledge (basic research) that allows the resolution of specific problems (applied research). In other words, research pretends the generation of new knowledge or the resolution of certain problems. Obviously, this option will depend on every country. The scientific community is against the distinction between basic research and applied research as the first one may become into the second one. Additionally, any kind of applied research implies a previous activity of basic research.57 The results of the research can be tested through prototypes or pilot plants (experimental development), and the process will conclude with the implementation of new or improved products (technological innovation).

In terms of legal certainty, the tax definition may be complemented by an illustrative list with doubtful cases, including only those activities with a high scientific value.

In the author’s view, there should not be difference between the R&D&I concept given by the scientific community and the one used for tax purposes. For instance, in India, domestic tax law does not contain a specific definition of R&D expenditure, and it is left to the DSIR, Ministry of Science and Technology, to determine whether the programme undertaken by the taxpayer is eligible for benefits available in respect of R&D expenditure.58 Indeed, it does not correspond to the tax authorities the identification of an activity as R&D&I. In this regard, Frascati and Oslo Manuals are technical documents, and the international acceptance of these definitions is a relevant criterion to consider them for tax purposes.

4. J. González Sabater, Financiación de la I+D+i. Incentivos públicos para la innovación tecnológica empresarial, Netbiblo, 2011, p. 19.

5. OECD (2002), Tax Incentives for Research and Development: Trends and Issues, OECD Publishing, Paris, p. 27.

6. OECD (2015), Frascati Manual 2015: Guidelines for Collecting and Reporting Data on Research and Experimental Development, The Measurement of Scientific, Technological and Innovation Activities, OECD Publishing, Paris.

7. OECD/Eurostat (2019), Oslo Manual 2018: Guidelines for Collecting, Reporting and Using Data on Innovation, 4th ed., The Measurement of Scientific, Technological and Innovation Activities, OECD Publishing, Paris/Eurostat, Luxembourg.

8. The concept of STA has been elaborated by UNESCO in the Recommendation concerning the International Standardization of Statistics on Science and Technology, approved in plenary session on 27 November 1978. Also in: UNESCO (1984), Guide to Statistics on Science and Technology, Division of Science and Technology – Office of Statistics, ST/84/WS/19, UNESCO, Paris, p. 8.

9. The UNESCO, both in its 1978 Recommendation and its 1984 Guide, gives this classification of STA.

10. OECD (2015), Frascati Manual 2015, p. 44. In similar terms, the International Accounting Standard (IAS 38) defines research as “original and planned investigation undertaken with the prospect of gaining new scientific or technical knowledge and understanding”. On the other hand, development is defined as “the application of research findings or other knowledge to a plan or design for the production of new or substantially improved materials, devices, products, processes, systems or services before the start of commercial production or use”.

11. See OECD (2015), Frascati Manual 2015, pp. 46-48. The UNESCO in its 1984 Guide identifies four essential elements that should be present to define a scientific activity as scientific research: (i) creativity; (ii) novelty or innovation; (iii) scientific methods; and, (iv) new knowledge (UNESCO (1984), Guide to Statistics on Science and Technology, Division of Science and Technology, op. cit., p. 9).

12. See OECD (2015), Frascati Manual 2015, pp. 50-52. The 1984 UNESCO Guide provides some examples to illustrate the differences between basic research, applied research and experimental development. For instance, a study of the causal relations between economic conditions and social development will be defined as basic (or fundamental) research. On the other hand, applied research will be referred to a study of the economic and social causes of the drift of agricultural workers from rural districts to towns for preparing a programme to halt this development in order to support agriculture and prevent social conflicts in industrial areas. Finally, experimental development will be the testing of a programme of financial assistance to prevent rural migration to large cities (UNESCO (1984), Guide to Statistics on Science and Technology, Division of Science and Technology, op. cit., p. 15).

13. OECD/Horizon2020 (2018), Review of National R&D Tax Incentives and Estimates of R&D Tax Subsidy Rates, p. 8 [available at: http://www.oecd.org/sti/rd-tax-stats-design-subsidy.pdf (accessed 27 Mar. 2021)].

14. OECD (2015), Frascati Manual 2015, pp. 65-66.

15. UNESCO (1984), Guide to Statistics on Science and Technology, Division of Science and Technology, op. cit., p. 17.

16. OECD (2015), Frascati Manual 2015, p. 67.

17. In this vein, see: UNESCO (1978), Recommendation concerning the International Standardization of Statistics on Science and Technology, UNESCO, Paris; UNESCO (1984), Guide to Statistics on Science and Technology, Division of Science and Technology, op. cit., p. 21.

18. Definition contained in the Recommendation concerning the International Standardization of Statistics on Science and Technology (UNESCO, 1978). Also in: UNESCO (1984), Guide to Statistics on Science and Technology, Division of Science and Technology, op. cit., p. 21.

19. OECD (2015), Frascati Manual 2015, p. 70.

20. UNESCO (1984), Guide to Statistics on Science and Technology, Division of Science and Technology, op. cit., p. 21.

21. R&D is one of a range of activities that can generate innovations, or through which useful knowledge for innovation can be acquired (OECD/Eurostat (2019), Oslo Manual 2018, p. 46).

22. See OECD (2015), Frascati Manual 2015, pp. 60-62.

23. OECD/Eurostat (2019), Oslo Manual 2018, pp. 20 and 246. The former edition of the Oslo Manual (2005) defined innovation as “the implementation of a new or significantly improved product (good or service), or process, a new marketing method, or a new organizational method in business practices, workplace organization or external relations” (OECD/Eurostat (2005), Oslo Manual: Guidelines for Collecting and Interpreting Innovation Data, 3rd Edition, The Measurement of Scientific and Technological Activities, OECD Publishing, Paris, p. 46).

24. OECD/Eurostat (2019), Oslo Manual 2018, p. 44. Implementation refers to the point in time when a significantly different new or improved product or business process is first made available for use (OECD/Eurostat (2019), Oslo Manual 2018, p. 246).

25. In this regard, the existence of opportunity costs implies the likely intention to pursue some form of value creation (or value preservation) by the actors responsible for an innovation activity. Value is therefore an implicit goal of innovation, but cannot be guaranteed on an ex ante basis. The realisation of the value of an innovation is uncertain and can only be fully assessed sometime after its implementation. The value of an innovation can also evolve over time and provide different types of benefits to different stakeholders (OECD/Eurostat (2019), Oslo Manual 2018, p. 254).

26. OECD/Eurostat (2019), Oslo Manual 2018, p. 46.

27. OECD/Eurostat (2005), Oslo Manual: Guidelines for Collecting and Interpreting Innovation Data, 3rd Edition, op. cit., pp. 48-49.

28. OECD/Eurostat (2005), Oslo Manual: Guidelines for Collecting and Interpreting Innovation Data, 3rd Edition, op. cit., p. 17.

29. OECD/Eurostat (2019), Oslo Manual 2018, pp. 20-21.

30. OECD (2013), Supporting Investment in Knowledge Capital, Growth and Innovation, op. cit., p. 56.

31. OECD (2013), Supporting Investment in Knowledge Capital, Growth and Innovation, op. cit., p. 22. Also in: OECD/Eurostat (2019), Oslo Manual 2018, p. 249.

32. OECD (2013), Supporting Investment in Knowledge Capital, Growth and Innovation, op. cit., p. 150.

33. OECD (2013), Supporting Investment in Knowledge Capital, Growth and Innovation, op. cit., p. 56.

34. In fact, R&D activities are directed to the development of knowledge (International Accounting Standard 38 (IAS 38), Intangible Assets).

35. G. Cavalier and J.L. Pierre, “Tax Incentives on Research and Development (R&D). France Report”, Cahiers de Droit Fiscal International, Vol. 100a, Sdu Uitgevers, The Hague, The Netherlands, 2015, p. 308.

36. Commission, A study on R&D Tax Incentives. Final Report, Taxation Papers – Working Paper No. 52, Luxembourg, 2014, pp. 79-80.

37. Article 35(1) (a) of the LIS defines research as “an original planned investigation in order to discover new knowledge and greater understanding in the field of Science and Technology”. On the other side, development implies “the application of research findings or any other scientific knowledge to manufacture new materials or products or to design new production processes or systems, as well as to obtain substantial technological improvement of pre-existing materials, products, systems and processes” (art.35(1) (a) of the LIS). Finally, innovation refers to “an activity whose result is a technological advance in getting new products or production processes, or substantial improvements of the pre-existing products or production processes” (art.35(2) (a) of the LIS). R&D&I definitions for tax purposes established in article 35 of the LIS “are closed to the OECD Manuals (Frascati and Oslo) in the case of R&D activities than in technological innovation activities” (F. Alonso Murillo, “Tax Incentives on Research and Development (R&D). Spain Report”, Cahiers de Droit Fiscal International, Vol. 100a, Sdu Uitgevers, The Hague, The Netherlands, 2015, p. 679).

38. OECD (2002), Frascati Manual 2002: Proposed Standard Practice for Surveys on Research and Experimental Development, The Measurement of Scientific and Technological Activities, OECD Publishing, Paris, p. 34

39. In this regard, the Spanish General Tax Directorate (Dirección General de Tributos, DGT) states, in its (binding) ruling of 14 June 2001 (No. V0052-01), that novelty should imply an essential change in the product or process. Thus, routine work for improving the quality of the product or changes in the physical form of the product do not constitute innovation (DGT ruling No. V0071-01).

40. J. González Sabater, Financiación de la I+D+i. Incentivos públicos para la innovación tecnológica empresarial, op. cit., p. 83.

41. P. Burg, France - Corporate Taxation sec. 1., Country Tax Guides IBFD (accessed 27 Mar. 2021).

42. D. Dalsgaard and N. Winther-Sørensen, “Tax Incentives on Research and Development (R&D). Denmark Report”, Cahiers de Droit Fiscal International, Vol. 100a, Sdu Uitgevers, The Hague, The Netherlands, 2015, p. 265.

43. OECD/Horizon2020 (2019), Review of National R&D Tax Incentives and Estimates of R&D Tax Subsidy Rates, p. 15.

44. G. Erdős, Hungary - Corporate Taxation sec. 1., Country Tax Guides IBFD (accessed 27 Mar. 2021).

45. M. Abdellatif, “Looking for Efficient Tax Incentives to Stimulate Research and Development and Economic Growth”, New Zealand journal of taxation and policy, Vol. 15, No. 2, Wellington, 2009, p. 154.

46. The Subdivision 355-B refers to the meaning of R&D activities and other terms. In particular, section 355-25 defines core R&D activities as “experimental activities: (a) whose outcome cannot be known or determined in advance on the basis of current knowledge, information or experience, but can only be determined by applying a systematic progression of work (…); and (b) that are conducted for the purpose of generating new knowledge (including new knowledge in the form of new or improved materials, products, devices, processes or services)”.

47. Y. Schuchter and A. Kras, Austria - Corporate Taxation sec. 1., Country Tax Guides IBFD (accessed 27 Mar. 2021).

48. The Colombian software regime was identified, in 2015, as an inconsistent regime with the nexus approach (OECD (2015), Countering Harmful Tax Practices More Effectively, Taking into Account Transparency and Substance, Action 5: Final Report, p. 63).

49. In particular, the deduction shall apply to profits and gains from the taxable period in which “fixed assets intended to promote research and development of new products and advanced technologies that do not affect the environment or that aim to minimize the negative effects of the environment” (article 69 §1 2 b) of the CIR 92).

50. Commission, A study on R&D Tax Incentives. Final Report, op. cit., p. 59.

51. In this vein, the Spanish National Court (Audiencia Nacional, AN), in its Judgment of 9 Dec. 2010 (Case No. 5764), affirms that, from the company perspective, R&D&I activities are not an end in itself, but only a means towards improving its activity. In particular, the improvement of the products or services that the firm offers while a benefit for the whole society is generated.

52. Firstly, a relevant product market comprises all those products and/or services, which are regarded as interchangeable or substitutable by the consumer, by reason of the product’s characteristics, their process and their intended use. Secondly, the relevant geographic market comprises the area in which the undertakings concerned are involved in the supply and demand of products or services, in which the conditions of competition are sufficiently homogeneous and which can be distinguished from neighbouring areas because the conditions of competition are appreciably different in those area [Commission Notice on the definition of relevant market for the purposes of Community competition law (Official Journal C 372, 09/12/1997 P. 0005 - 0013)].

53. OECD (2015), Frascati Manual 2015, p. 60.

54. OECD/Eurostat (2019), Oslo Manual 2018, p. 46.

55. OECD (2002), Frascati Manual 2002: Proposed Standard Practice for Surveys on Research and Experimental Development, op. cit., p. 18.

56. In this regard, the Judgment of the Spanish National Court of 20 June 2013 (Case No. 2751) points out that the R&D&I tax concept is indeterminate in nature. Moreover, there is an overuse of generic formulas and confusing terms in the delimitation of the R&D&I tax concept. Finally, the novelty requirement may lead to opposite interpretations due to the use of lax terms, such as an “original investigation” or “new knowledge”. Thus, a narrow interpretation would imply the lack of novelty and, therefore, the denial of the tax incentive, while investment in R&D&I would be favoured under a broad approach.

57. In Spain, for instance, the Supreme Court has also considered such issue in regard of the deductibility of VAT rates in its Judgement of 16 February 2016. Previously, the Judgement of the High Court of Castilla y León of 21 March 2014, and the Judgements of the National Court of 6 October 2011 and of 19 May 2015.

58. G. Chopra and I. Sekhri, “Tax Incentives on Research and Development (R&D). India Report”, Cahiers de Droit Fiscal International, Vol. 100a, Sdu Uitgevers, The Hague, The Netherlands, 2015, p. 387).