Hybrid mismatches are the consequence of differences in the tax treatment of an entity, a financial instrument or a permanent establishment under the laws of two or more jurisdictions that may give rise to double taxation or double non-taxation.
Hybrid mismatches that result in double non-taxation have been high on the agenda of the Organization for Economic Coordination and Development ("OECD") in the context of the initiative against Base Erosion and Profit Shifting ("BEPS"). Action 2 of the BEPS Project aimed at developing recommendations regarding rules to be implemented in domestic tax law and tax treaties to tackle situations of double non-taxation. The Final Reports on the 15 OECD Action Items against BEPS were released to the public on 5 October 2015.
On 29 May 2017, the Council of the European Union adopted Anti-Tax Avoidance Directive 2 ("ATAD 2") that required EU Member States to implement as from 2020 all-encompassing hybrid mismatch rules that virtually cover any type of hybrid mismatch situation that is theoretically possible.
The hybrid mismatch rules are characterized by an extreme complexity that demands not only deep knowledge of Luxembourg tax law but also a good understanding of the tax laws of all foreign jurisdictions involved, ATAD 2 and the Final Report on BEPS Action 2 that is explicitly mentioned as a source of interpretation.
This book is a practical guide that analyses the scope, limits and mechanisms of the hybrid mismatch rules (Article 168ter of the LITL) and the reverse hybrid mismatch rule (Article 168quater of the LITL). As such, it will be a companion to readers on their journey to a full comprehension of the hybrid mismatch rules that can best be compared to 3D chess.
Oliver R. Hoor - Tax Partner (Atoz Tax Advisers)