Strategizing International Tax Best Practices – by Keith Brockman

Archive for March, 2014

TEI’s comments: UN TP Manual, Competent Authority & APA’s

TEI has published comments addressing the UN Practical Manual on Transfer Pricing for Developing Countries, in addition to US IRS Notices for revisions to Revenue Procedures setting forth new policies to implement the Competent Authority (CA) and Advance Pricing Agreement (APA) procedures.  References to TEI’s submissions are included for reference:

UN TP Manual key comments:

http://www.tei.org/Documents/TEI%20Comments%20on%20UN%20Transfer%20Pricing%20Manual%20March%202014.pdf

  • Harmonize UN and OECD Transfer Pricing (TP) guidelines to reduce cross-border disputes
  • Risk assessment should be the primary focus, with most multinationals (MNE’s) “low-risk” status due to global and consistent TP policies and documentation
  • First step of tax authorities should be to address overall business, group TP policy and risk control framework
  • Domestic legislation defeats the purpose of a standard international TP guideline
  • Recharacterization by tax authorities should only be permitted in clear cases of abuse
  • TP documentation flexibility must be preserved
  • Burden of proof should reside with tax authorities, with penalty protection granted to taxpayer upon providing sufficient TP documentation
  • Intangible discussion precedes work of the OECD on revision of its Chapter VI Guidelines, reducing likelihood of harmonization
  • Intra-group services and management fees: Consistency of UN and OECD approaches for clarity, in addition to uniform safe harbors
  • TP documentation: “Less is more” approach to assess risk, materiality consideration on a group and country level, global and regional comparables, English language
  • Chapter 10 policy objectives are not aligned with the UN TP Manual and the arm’s-length principle

US Competent Authority key comments to Notice 2013-78 re: revisions to Revenue Procedure:

http://www.tei.org/Documents/TEI%20Comments%20on%20Notice%202013-78%20Revised%20CA%20Revenue%20Procedure%20-%20FINAL%20to%20IRS%20Mar%2010%202014.pdf

  • Opening the CA process to taxpayer initiated adjustments is welcome
  • A new procedure whereby an informal consultation is arranged with taxpayers to discuss its exhaustion of remedies to reduce its foreign tax before claiming a US Foreign Tax Credit (FTC) should not be compulsory.  The timeliness of such advice is also of concern.
  • CA initiated MAP cases and required inclusion of MAP issues that are not a part of the taxpayer’s request for assistance raises many questions.
  • Provision of all information to both CA’s is over broad and may not be mutually relevant.
  • US CA assistance may be denied if a foreign initiated adjustment is agreed to without consulting the US CA: this raises resource and timeliness issues and should also have no impact upon  the merits for claiming a US FTC.

US APA key comments to Notice 2013-79 re: revisions to Revenue Procedure

http://www.tei.org/Documents/TEI%20Comments%20on%20Notice%202013-79%20Revised%20APA%20Revenue%20Procedure%20-%20FINAL%20to%20IRS%20Mar%2010%202014.pdf

  • The Notice reflects prior creation of the Advance Pricing and Mutual Agreement (APMA) program
  • Details are set forth regarding the “pre-filing” process
  • Appendix is included stating the required materials to be submitted for inclusion
  • Rules are provided for when the IRS may cancel or revoke a completed APA
  • Inapplicable information should not be submitted, but a “suitable explanation” why the information is not relevant must be provided
  • The suggested changes will increase information required for application, and time required for APA completion, thereby reducing the likelihood that taxpayers will proceed with an APA request

 

In alignment with the OECD’s BEPS proposals, unilateral country legislation including General Anti-Avoidance Rules (GAAR), and the UN TP Manual principles for developing countries, tax controversies are expected to increase significantly.  Tremendous pressure will be placed on CA assistance around the world, and possibilities for new APA ‘s will be reviewed to reduce inherent uncertainty.

Accordingly, all multinationals and interested parties should read TEI’s excellent comments to better understand the issues to be confronted, with suggestions for thoughtful and practical ideas to achieve mutual objectives for taxpayers and tax authorities around the world.

OECD BEPS Action 2 Drafts / Vienna Convention

 

The OECD released discussion drafts on Action 2, re: hybrid mismatch arrangements, of its BEPS Action Plan.  A copy of the press release, therein referencing the documents, is attached for reference:
Numerous comments should  be received in response to the discussion proposals, however I do want to also draw attention to the statements and purpose of the Vienna Convention on the Laws of Treaties, also referenced herein:
OECD Press release excerpt:

19/03/2014 – Public comments are invited on two discussion drafts on Action Item 2 of the BEPS Action Plan.

In July 2013, the OECD published its Action Plan on Base Erosion and Profit Shifting. The Action Plan identifies 15 actions to address BEPS in a comprehensive manner and sets deadlines to implement these actions.

Action 2 of the BEPS Action Plan calls for the development of model treaty provisions and recommendations for the design of domestic rules to neutralise the effect of hybrid mismatch arrangements:

ACTION 2

Neutralise the effects of hybrid mismatch arrangements

Develop model treaty provisions and recommendations regarding the design of domestic rules to neutralise the effect (e.g. double non-taxation, double deduction, long-term deferral) of hybrid instruments and entities. This may include: (i) changes to the OECD Model Tax Convention to ensure that hybrid instruments and entities (as well as dual resident entities) are not used to obtain the benefits of treaties unduly; (ii) domestic law provisions that prevent exemption or non-recognition for payments that are deductible by the payor; (iii) domestic law provisions that deny a deduction for a payment that is not includible in income by the recipient (and is not subject to taxation under controlled foreign company (CFC) or similar rules); (iv) domestic law provisions that deny a deduction for a payment that is also deductible in another jurisdiction; and (v) where necessary, guidance on co-ordination or tie-breaker rules if more than one country seeks to apply such rules to a transaction or structure. Special attention should be given to the interaction between possible changes to domestic law and the provisions of the OECD Model Tax Convention. This work will be co-ordinated with the work on interest expense deduction limitations, the work on CFC rules, and the work on treaty shopping.

The Action Plan calls for this work to be concluded by September 2014. In connection with this work the Committee on Fiscal Affairs (CFA) has now released two consultation documents on Action Item 2 as a single proposal for public consultation.

The first discussion draft (Neutralise the effects of Hybrid Mismatch Arrangements – Recommendations for Domestic Laws) sets out recommendations for domestic rules to neutralise the effect of hybrid mismatch arrangements and the second discussion draft (Neutralise the effects of Hybrid Mismatch Arrangements – Treaty Aspects of the Work on Action 2 of the BEPS Action Plan) discusses the impact of the OECD Model Convention on those rules and sets out recommendations for further changes to the Convention to clarify the treatment of hybrid entities. The recommendations set out in these discussion drafts do not represent the consensus views of the CFA or its subsidiary bodies but rather are intended to provide stakeholders with substantive proposals for analysis and comment.

Comments on these documents should be submitted electronically (in word format) before 5.00 pm on 2 May 2014 (no extension will be granted).  It is the policy of the OECD to publish all responses (including the names of responders) on the OECD website.

Observations:

The Vienna Convention on the Laws of Treaties has been attached as a timely reference to the role of treaties and the interplay of domestic law and treaty provisions.  It is worthy to readdress these historic provisions as contrasted to the OECD’s BEPS proposals, especially with respect to domestic law override provisions of tax treaties.

The subject of General Anti-Avoidance Rules (GAAR) are also of paramount significance, due to the layers of anti-avoidance and anti-abuse rules proposed from a domestic law and / or a tax treaty perspective.  The GAAR provisions are in addition to specific anti-avoidance rules (SAAR) and targeted anti-avoidance rules (TAAR) rules that are already effected into local legislation.  The OECD documents prescribe primary and linking mechanisms between domestic GAAR and Treaty GAAR provisions to ensure consistency and uniformity.  However, such rules should consider the additional uncertainty that the “automatic” rules may generate.

The interplay, and priority, of domestic law and treaty provisions are converging quickly.  As a result, there will be additional controversies as to whether a taxpayer can utilize a treaty to avoid double taxation, and the different interpretations that tax authorities may have interpreting the complex rules.

The OECD proposals are significant in international tax policy and the application of tax treaties vs. domestic law, thereby all interested parties should submit thoughtful and practical comments to the OECD within the prescribed timeline for comment.

EU Policy Paper: Beneficial Ownership transparency

The EU Policy Paper, issued by Transparency International, is entitled :”Fighting Money Laundering in the EU: From Secret Ownership to Public Registries.”  The stated objective is to provide company ownership information freely available as a shared objective in the public interest.  The Policy Paper is referenced herein:

http://www.transparencyinternational.eu/wp-content/uploads/2014/01/TI-EU-Policy-Paper-Beneficial-Ownership.pdf

The primary objective of this initiative, as stated in the Policy Paper, is: “To keep a level playing field and maximize their benefit, public registries must be made public in all EU Member States as well as internationally.”  The ultimate Beneficial Owner is to provide detailed information.  This recommendation is pursuant to a review of the 3rd EU Anti-Money Laundering Directive, forming a basis for the 4th EU Directive.

As a Best Practice, this initiative should be monitored from a tax policy perspective in alignment with the OECD’s Base Erosion and Profit Shifting (BEPS) Action Plan steps, as well as similar trends meant to uncover complex and non-transparent ownership schemes.  It is noted that the EU Policy Paper is meant to extend the transparency reporting internationally, not only for EU Member States.

OECD: BEPS Treaty Abuse proposal released for comment

The OECD invites public comments with respect to Action 6 (Prevent Treaty Abuse) of the BEPS Action Plan.

A summary of the OECD press release, the OECD proposal and Best Practice comments are included herein for reference:

http://www.oecd.org/ctp/treaties/treaty-abuse-discussion-draft-march-2014.pdf

The Action Plan identifies treaty abuse, and in particular treaty shopping, as one of the most important sources of BEPS concerns. Action 6 (Prevent Treaty Abuse) reads as follows:

Action 6 

Prevent treaty abuse

Develop model treaty provisions and recommendations regarding the design of domestic rules to prevent the granting of treaty benefits in inappropriate circumstances. Work will also be done to clarify that tax treaties are not intended to be used to generate double non-taxation and to identify the tax policy considerations that, in general, countries should consider before deciding to enter into a tax treaty with another country. The work will be co-ordinated with the work on hybrids.

The Action Plan also provided that “[t]he OECD’s work on the different items of the Action Plan will continue to include a transparent and inclusive consultation process” and that all stakeholders such as business (in particular BIAC), non-governmental organisations, think tanks, and academia would be consulted.

As part of that consultation process, interested parties are invited to send comments on this discussion draft, which includes the preliminary results of the work carried out in the three different areas identified in Action 6:

A. Develop model treaty provisions and recommendations regarding the design of domestic rules to prevent the granting of treaty benefits in inappropriate circumstances.

B. Clarify that tax treaties are not intended to be used to generate double non-taxation.

C. Identify the tax policy considerations that, in general, countries should consider before deciding to enter into a tax treaty with another country.

These comments should be sent on 9 April 2014 at the latest (no extension will be granted). The comments received by that date will be examined by the Focus Group at a meeting that will be held on the following week.

Public Consultation:

Persons and organisations who intend to send comments on this discussion draft are invited to indicate as soon as possible, and  by 3 April at the latest, whether they wish to speak in support of their comments at a public consultation meeting on Action 6 (Prevent Treaty Abuse), which is scheduled to be held in Paris at the OECD Conference Centre on 14-15 April 2014. Persons selected as speakers will be informed by email by 4 April at the latest.

This meeting will also be broadcast live on the internet and can be accessed on line. No advance registration is required for this internet access.

General observations of proposal:

The OECD proposal provides a three-pronged approach:

  • Treaty statement re: anti-avoidance rule and treaty shopping opportunities
  • Specific anti-abuse rule based on Limitation of Benefit (LOB) provisions
  • General anti-abuse rule

Other OECD recommendations include comments re: Permanent Establishment (PE), tax policy, and broad General Anti-Avoidance Rule (GAAR) interpretation (including allowance of domestic GAAR provisions notwithstanding the relevant double tax treaty).  The GAAR proposal provides that obtaining a treaty benefit was one of the main purposes of any arrangement or transaction that resulted directly or indirectly in that benefit.  Note this GAAR proposal supplements the LOB provisions.

Proposals are also introduced to address tax avoidance risks via changes to domestic laws.  Such risks include thin capitalization, dual residence, arbitrage transactions (including timing differences), and transfer mispricing.  Intentions of the UN Model Convention are also introduced for analogous interpretation.  

The proposal notes that treaties should not prevent application of domestic law provisions that would prevent transactions re: CFC rules and thin capitalization.

Finally, the OECD proposal indicates that the treaty should clearly state that prevention of tax evasion and tax avoidance is a purpose of the tax treaties.

The proposal, in alignment with the overall OECD BEPS proposals, is targeted at avoidance of double non-taxation, without a balanced commentary and measures addressing the risk of double taxation.  Additionally, the terms “tax evasion” and “tax avoidance” are used in tandem within the proposal, although such terms are literally construed as having significantly two separate meanings and relative intent.  Finally, the allowance of domestic GAAR provisions in addition to, or in lieu of, treaty provisions and EU Parent-Subsidiary guidelines will promote additional uncertainty re: subjective interpretations of broad proposals that will ultimately lead to increased tax disputes, double taxation and the loss of multilateral symmetry.

This proposal has tremendous significance in the transfer pricing arena that must be seriously considered and reviewed in its entirety, including the possibility for early comment to ensure OECD consideration.

Nigeria: TP documentation to be filed with 2014 tax return

The Nigerian Transfer Pricing (TP) Division of the Federal Inland Revenue Service (FIRS) has requested companies to submit copies of their Group’s Transfer Pricing Policy.  Additional details of this request are included in the KPMG link for reference:

https://www.kpmg.com/Global/en/IssuesAndInsights/ArticlesPublications/taxnewsflash/Documents/tp-nigeria-march11-2014v2.pdf

Although this request is directed towards a “Transfer Pricing Policy” the initiative is an indication of the focused transfer pricing objectives of developing countries, and heightened awareness for application of the “arm’s-length” principle.  The initiative is interesting due to the fact that the request is for a macro basis policy re: arm’s-length transactions between related entities, vs. a detailed template of information that may not have direct relevance on assessing risk from a transfer pricing perspective.

For Best Practices, this request invites multinationals to develop a general transfer pricing policy as an integral part of the Tax Risk Framework documentation, with potential application of a useful documentation tool to provide publicly as applicable.

OECD: Comparable Data draft released for comment

The OECD has released a paper for comment discussing four possible approaches to addressing concerns on utilization of comparable transactions for transfer pricing analysis.  Written comments should be provided by 11 April 2014.  The following link is provided for reference:  

http://www.oecd.org/ctp/transfer-pricing/transfer-pricing-comparability-data-developing-countries.pdf

The paper will be discussed in two parallel sessions on the last day of the Global Forum on Transfer Pricing meeting of 26–28 March 2014. 

This paper sets out and briefly discusses four possible approaches to addressing the concerns over the lack of data on comparables expressed by developing countries.

• Expanding access to data sources for comparables, including steps to improve the range of data contained in commercial databases, expand developing country access to such databases, and improve access to comparables data in developing countries with a significant number of sizeable independent companies.

• More effective use of data sources for comparables, including guidance or assistance in the effective use of commercial databases, the selection of foreign comparables, whether and how to make adjustments to foreign comparables to enhance their reliability, and alternative approaches to finding comparables.

• Approaches to identifying arm’s length prices or results without reliance on direct comparables, including guidance or assistance in making use of proxies for arm’s length outcomes, the profit split method, value chain analysis, and safe harbours, an evaluation of the impact, effectiveness and compatibility with the arm’s length principle of approaches such as the so called “sixth method”, which is increasingly prevalent particularly in developing countries in Latin America and Africa, and a review of possible anti-avoidance approaches.

• Advance pricing agreements and mutual agreement proceedings, including a review of developing country experiences with the pros and cons of advance pricing agreements and negotiations to resolve transfer pricing disputes, as well as guidance or assistance with respect to mutual agreement proceedings.

The paper is timely, relevant and addresses practical and administrative concerns addressed by developing countries, as well as discussion of the arm’s-length principle.  The items addressed should be considered in addressing Best Practices for transfer pricing documentation methodologies by taxpayers and tax authorities.

Alternative Dispute Resolution (ADR): Australia’s proactive approach

The referenced PwC Alert highlights the proactive efforts by the Australian Tax Office (ATO) to initiate dispute resolution mechanisms in the audit process, as well as focus on relevant internal training to successfully accomplish these objectives.

http://www.pwc.com.au/tax/taxtalk/assets/alerts/TaxTalk-Alert-Tax-Controversy-01Feb14.pdf

The ATO is committed to the following objectives:

  • Early engagement and direct negotiation with taxpayers
  • Improving all dispute resolution processes starting with the assessment
  • ADR utilization at every stage of the dispute resolution process
  • Independent review of the audit position prior to conclusion of the audit aimed to narrow / reconsider the issues
  • Internal ADR training
  • Focused “risk-focused” approach to managing disputes

The ATO’s initiatives are timely, relevant and a welcome effort to adopt Best Practices to resolve disputes prior to costly and time-consuming formal unilateral, bilateral or multilateral appeal avenues via domestic legislation and/or double tax treaty relief.

 

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