Читать книгу The IP Box Regime. A Study from an International and European Perspective - Elizabeth Gil García - Страница 22

Knowledge transfer is on the interest of tax law because of the income arising from certain intangibles or IP rights. A priori, and in the light of the ability-to-pay principle, such income will be subject to tax. However, a preferential tax treatment may be granted to income derived from IP assets, i.e. the IP box regime or patent box regime. These preferential regimes may stimulate knowledge transfer. This is actually the difference between input and output incentives as IP box regimes are aimed to promote the application of the research carried out allowing the further development or exploitation of a patent (as analysed in Chapter 3).

As mentioned, it is not only important the promotion of investments in R&D&I but also the promotion of the knowledge transfer, as the lack of incentives may lead to low rates of patents registrations and low rates of commercialisation of new products and services.91 Thus, once the activity of R&D&I ends, a preferential tax treatment may be granted to income derived from IP assets. This is justified in the interest countries have to attract certain businesses, avoid the IP delocalisation and be more competitive in a global world.92 For instance, in a study prepared for the Commission in 2017, it was found that the highest number of patents was located in France, Belgium and the Netherlands. These countries have a patent box regime, so it seems to indicate that these regimes pay (or may pay) a role in attracting patents.93

The IP box regime is the main type of an output incentive. In general terms, IP boxes provide an incentive on the basis of reduced tax for economic operators to develop new innovate products and processes or to perform services.94 In fact, the aim of the patent box regime is to provide an additional incentive for companies to retain and commercialise existing patents and to develop new innovate patented products.95 Currently, the IP box regime is basically a European tax incentive as several Member States are granting an IP box regime with the purpose of fostering the creation and development of new R&D&I intangibles.96 In particular, those Member States are Belgium, Cyprus, France, Greece, Hungary, Ireland, Italy, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Slovakia and Spain.97 Notwithstanding this, some examples of IP box regimes can also be found out of the European Union. For instance, India introduced, in the Finance Act 2016, somehow of IP box regime as domestic companies earning royalty income from patents developed and registered in India are subject to tax at a reduced rate of 10%.98 Also in China, the reduced rate for high-new technology enterprises is regarded as an IP regime.99

This type of incentive refers then to the income derived from the outcomes of the R&D&I process. In particular, income resulting from the direct exploitation, from the licence or from the assignment of IP will be subject to tax. However, and with the aim to stimulate those transactions, the IP box regime constitutes a special tax regime that provides income arising from certain intangibles with a preferential tax treatment. Moreover, a relevant point of the regime is the consideration of innovation as a commercial good.100

As mentioned in subs. 3.3., technology transfer contracts are a channel for the knowledge transfer. In these cases, there are two parties involved in the transfer of technology. On the one hand, the licensor or the assignor of the IP asset and, on the other hand, the licensee or the acquirer of the intangible. Thus, the transfer of technology will actually occur if both parties agree with it. The patent box regime stimulates that one-party transfers (either through a licence agreement or through an assignment contract) the intangible, allowing its further development or exploitation. As a result, the transferor takes a great advantage of the research results because of the preferential tax treatment granted. On the other side, from the perspective of the transferee, the acquisition of new technology implies a cost and, at the same time, may imply an advantage in terms of competitiveness because of the introduction of an innovative item within the industrial process. In general, the IP recipient will be able to deduct the cost and even may claim an input incentive.

The IP box regime grants a tax advantage for income resulting from certain intangibles or inventions that are (already) protected under IP rights. Indeed, inventions can be patented under certain conditions (e.g., novelty, industrial application).101 The patent allows the inventor, during a limited period (in general, 20 years), to avoid other uses or the sale of the invention without his consent in the countries where the patent has been granted.

The development and generation of intangibles are socially relevant; thus, law focuses on intellectual property. The patent provides the inventor with a right to exploit the intangible during a limited period of time, which allows him not only to recover the investment but also to obtain economic benefits. After such period, the patented invention becomes part of the public domain. This is a type of social contract.102 This could be seen as a sufficient incentive to foster the creation and transfer of intangibles and, consequently, it may arise the question about the need to grant an additional incentive through the tax system.

On the other side, it should be noted that, in several cases, the invention will be registered as a patent in a different country where the value activity (the underlying R&D&I) has been carried out. Probably, in the territory where the patent will be exploited. In this sense, the European Patent Office (EPO) does not require information concerning the place of its creation. This allows placing the patent in the territory that offers more advantages, e.g., the existence of a subsidiary or branch engaged in R&D&I and particularly the existence of special tax measures.

From the company’s perspective, technological innovation is an international activity. That is to say, firms will perform R&D&I activities in a different place of the territory where the invention will be registered as a patent and, probably, the commercialisation will be made in a third country.103 This business tax planning may lead to a public revenue loss as well as to distort competition. The IP box regime may be potentially harmful as it implies no or low effective taxation. This type of regimes reduces the tax burden of taxpayers performing R&D&I activities.

In the same vein, this incentive accentuates the risk of IP delocalisation and profit shifting, i.e. the artificial transfer of benefits.104 The OECD Action Plan on BEPS (as analysed in Chapter 4) addresses these issues. As Pistone affirms, BEPS should (and hopefully will) generate significant turmoil in areas of international tax planning where hidden complicities of numerous countries with multinational enterprises persist. In particular, the author highlights the case where multinational enterprises are allowed to operate at preferential tax conditions for the official, and desirable, ground of fostering R&D&I, which do not necessarily have an actual direct connection between R&D&I and the actual income-generating activity.105 This is the reason why the OECD requires an economic substantial activity for the maintenance of preferential tax regimes, such as IP box regimes.

59. UNESCO (1984), Guide to Statistics on Science and Technology, Division of Science and Technology, op. cit., pp. 18-19.

60. OECD/Eurostat (2019), Oslo Manual 2018, p. 89.

61. OECD/Eurostat (2019), Oslo Manual 2018, p. 128.

62. Commission, “Metrics for Knowledge Transfer from Public Research Organisations in Europe. Report form the European Commission’s Expert Group on Knowledge Transfer Metrics”, Expert Group Report, European Commission, 2009, p. 5.

63. B. Pérez Bernabeu, “La I+D+i colaborativa a la luz de la normativa sobre ayudas de estado (Especial referencia a las Spin-off universitarias)”, Crónica Tributaria, No. 156, 2015, p. 176.

64. As Lucas Durán, the technology transfer is related to the communication of a set of knowledge (regardless of its registration) targeted to the production of goods and services and, in consequence, such knowledge is associated with industry and commerce (M. Lucas Durán, “Aspectos tributarios de las transferencias internacionales de tecnología” in M. Lucas Durán (editor): Derecho de la I+D+i – Investigación, desarrollo e innovación, Bosch, 2010, p. 590).

65. Commission, “Metrics for Knowledge Transfer from Public Research Organisations in Europe. Report form the European Commission’s Expert Group on Knowledge Transfer Metrics”, op. cit., p. 4.

66. In this regard, there are two forms of codified knowledge: “(i) publications, where copyright protects how ideas are expressed but not the ideas themselves; and, (ii) patents, which grant exclusive rights to use the inventions explained in them” (EUROPEAN COMMISSION, “Metrics for Knowledge Transfer from Public Research Organisations in Europe. Report form the European Commission’s Expert Group on Knowledge Transfer Metrics”, op. cit., p. 5).

67. Commission, “Metrics for Knowledge Transfer from Public Research Organisations in Europe. Report form the European Commission’s Expert Group on Knowledge Transfer Metrics”, op. cit., pp. 4-5.

68. Ibid.

69. OECD/Eurostat (2019), Oslo Manual 2018, p. 128.

70. Communication from the Commission: Framework for State aid for research and development and innovation (2014/C 198/01).

71. OECD (2013), “Knowledge Networks and Markets”, OECD Science, Technology and Industry Policy Papers, No. 7, OECD Publishing, Paris, p. 63.

72. Commission, “Metrics for Knowledge Transfer from Public Research Organisations in Europe. Report form the European Commission’s Expert Group on Knowledge Transfer Metrics”, op. cit., p. 5.

73. Knowledge may come also from private research institutions or other firms.

74. B. Pérez Bernabeu, “La I+D+i colaborativa a la luz de la normativa sobre ayudas de estado (Especial referencia a las Spin-off universitarias)”, op. cit., p. 176.

75. Commission (2020), Amendment to the Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak, C(2020) 2215 final.

76. It was followed by Sophia Antipolis (France) in the 1960s and Tsukuba Science City (Japan) in the early 1970s. Today, there are over 400 science parks worldwide [http://www.unesco.org/new/en/natural-sciences/science-technology/university-industry-partnerships/science-parks-around-the-world/ (accessed 27 Mar. 2021)].

77. This definition is available at the official site of IASP (www.iasp.ws). According to IASP, expressions such as “technology park”, “technopole” or “research park” can be regarded as synonymous terms of “science park”.

78. A.M. Hernández Peña, Entender y potenciar la I+D+i. Las Universidades como ejemplo. Para juristas y no juristas, Servicio de Publicaciones de la Universidad de las Palmas de Gran Canaria, 2011, p. 127.

79. For further information on the Madrid Science Park: https://www.uam.es/ss/Satellite/en/1234886352057/1242646806746/servicio/servicio/Madrid_Science_Park_(PCM).htm (accessed 27 Mar. 2021).

80. Information about the companies is available at: https://fpcm.es/en/business-directory/ (accessed 27 Mar. 2021).

81. A.M. Hernández Peña, Entender y potenciar la I+D+i. Las Universidades como ejemplo. Para juristas y no juristas, op. cit., p. 127.

82. For instance, at the University of Alicante (Spain), the spin-off company “Glen Biotech S.L.” arose from the ideas made in the Laboratory of Phytopathology of the University with the purpose to develop innovative products based on biological control agents (www.glenbiotech.es).

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

84. S. Martínez Rodríguez, “Incentivos fiscales para la PYME en otros países europeos y en Estados Unidos”, Ministerio de Industria, Turismo y Comercio. Secretaria General Técnica, Subdirección General de Desarrollo Normativo, Informes y Publicaciones – Centro de Publicaciones, 1st ed., Madrid, 2011, p. 3.

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

86. See Commission, A study on R&D Tax Incentives. Final Report, ob cit., p. 85.

87. M. Valta, “Taxation of Intellectual Property (IP) in Domestic Tax Law” in G. Maisto (ed.): Taxation of Intellectual Property under Domestic Law, EU Law and Tax Treaties, EC and International Tax Law Series, Vol. 16, IBFD, 2018, p. 7.

88. Commission (2020), Amendment to the Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak, C(2020) 2215 final.

89. A. Brazzalotto, “Italy” in G. Maisto (ed.): Taxation of Intellectual Property under Domestic Law, EU Law and Tax Treaties, EC and International Tax Law Series, Vol. 16, IBFD, 2018, p. 478.

90. H. Taveira Torres, “Tributación de intangibles” (General Report) in F. Serrano Antón, E. Simón Acosta and H. Taveira Torres (editors): Fiscalidad y globalización, Ed. Aranzadi, 2012, p. 1155.

91. This is the Canadian case noted by Pantaleo, Poschmann and Wilkie. They suggest that businesses possibly would receive less tax relief for conducting R&D, and more for adopting, commercialising, or otherwise exploiting the output of the R&D process (N. Pantaleo, F. Poschmann and S. Wilkie, “Improving the Tax Treatment of Intellectual Property Income in Canada”, Commentary No. 379, Fiscal and Tax Policy, C.D. Howe Institute, 2013, p. 2).

92. It seems today’s society is the “society of intangibles” (see H. Taveira Torres, “Tributación de intangibles” (General Report), op. cit., p. 1126).

93. Commission, Aggressive tax planning indicators (Final Report), Taxation Papers, Working Paper No. 71, 2017, p. 99.

94. M. Felder, IP Boxes from a European, Liechtenstein and Swiss Perspective, Schulthess Verlag, Zúrich, 2013, p. 1.

95. B. Pérez Bernabeu, “R&D&I Tax Incentives in the European Union and State Aid Rules”, European Taxation, Vol. 54, No. 5, 2014, p. 181.

96. IP box regimes were enacted for the first time in France and Ireland around the seventies (Commission, Patent Boxes Design, Patents Location and Local R&D, Taxation Papers – Working Paper No. 57, Luxembourg, 2015, p. 8).

97. In United Kingdom, a patent box regime applies since 2012.

98. S. Shah, India - Corporate Taxation sec. 1., Country Tax Guides IBFD (accessed 27 Mar. 2021).

99. S. Ma, China (People’s Rep.) - Corporate Taxation sec. 1., Country Tax Guides IBFD (accessed 27 Mar. 2021).

100. M.B. Salgado Barca and R. Pallarés Rodríguez, “El patent box en España: análisis del artículo 23 del LIS”, Quincena Fiscal Aranzadi 19, 2014, p. 69.

101. According to the lattest Annual Report of the European Patent Office (EPO), in 2018, close to half of European patent applications were requested from Member States of the European Patent Organisation (47%), followed by United States (25%), Japan (13%), China (5%) and South Korea (4%). Data of the Report are available at the official site of the EPO: https://www.epo.org/about-us/annual-reports-statistics/annual-report/2018.html (accessed 27 Mar. 2021).

102. It is commonly held that patents are contracts between the inventor and the society, because the inventor is addressed to generate (individual) benefits and the society is interested in innovation for obtaining new or improved products or for promoting the knowledge transfer.

103. For instance, in some cases, the taxpayer will set-up R&D&I activities in a high tax jurisdictions and later on he will shift the intangible abroad. This may be the case of U.S. multinationals. See B.N. Bogenschneider, “The Tax Paradox of Capital Investment”, Journal of Taxation of Investment, Vol. 33, No. 01, Fall 2015.

104. A large body of literature has documented that differences in corporate taxes are important for the location of a firm’s capital and profits. Countries offering lower corporate tax rates attract more capital and profits from multinationals (Commission, A study on R&D Tax Incentives. Final Report, op. cit., p. 43).

105. P. Pistone, “Coordinating the Action of Regional and Global Players during the Shift from Bilateralism to Multilateralism in International Tax Law”, World Tax Journal, Vol. 6, No. 1, 2014, p. 7.