Strategizing International Tax Best Practices – by Keith Brockman

Archive for the ‘Tax Risk Management’ Category

US developments: BAT still alive?

EY’s Global Tax Alert highlights the heightened uncertainty around the proposed Business Activity Tax (BAT) by the House and interested parties.

The BAT is a revenue raising proposal, thus the revenues from this plan would help to move a bill towards passage via the political complexities and processes required.  It is very important to monitor, as the death of this proposal would mean deriving that lost revenue from another initiative (i.e. raising the tax rate, etc.).  

http://www.ey.com/Publication/vwLUAssets/Report_on_recent_US_international_tax_developments_-_25_May_2017/$FILE/2017G_03417-171Gbl_Report%20on%20recent%20US%20international%20tax%20developments%20-%2025%20May%202017.pdf

Double Tax disputes: Draft EU Directive

The Council of the European Union has proposed a draft EU Directive, to be in effect by June 30 2019, that would resolve double taxation disputes between Member States.  A summary of the Draft Directive is provided, as well as referenced herein.

This proposal is based upon the foundation of the Union Arbitration Convention (90/436/EEC) re: cross-border tax disputes.

Key points:

  • 3 years, from first notification, to file a complaint by the taxpayer
  • Each competent authority (CA) acknowledges receipt within 2 months
  • Additional 3 months by CA’s to request additional information, by which the taxpayer has 3 months to provide
  • Approx. 6 months later, CA’s decide to accept or reject the complaint; or a CA can decide to resolve unilaterally by which the Directive is terminated
  • Taxpayer may appeal per national rules a rejection of the complaint
  • CA’s try to resolve issue within 2 years, which may be extended by 1 year
  • Upon taxpayer’s request, an Advisory Commission shall be established where the complaint is rejected by not all of the relevant CA’s, or a failure by CA’s to reach agreement.  This request can be denied by a Member State on a case by case basis where a question of dispute does not involve double taxation.
  • Advisory Commission = Chair, 1-2 representatives of each CA, and 1-2 independent persons by each CA
  • Advisory Commission to adopt a decisions within 6 months
  • CA’s may, alternatively, set up an Alternative Dispute Resolution Commission instead of the Advisory Commission; this commission has freedom of techniques to settle
  • Professional secrecy standards are prescribed
  • Advisory or Alternative Commission opines in 3-6 months
  • CA’s shall agree within 6 months of the opinion on how to resolve the complaint; they can decide on a decision that deviates from the opinion or be bound by the opinion
  • Final decision does not constitute a precedent
  •  (Redacted) decision is published and maintained in an online central repository
  • Evaluation of process by June 30, 2024 and issue a report

As the key point summary infers, there are many provisions in the Draft Directive, requiring a proactive effort by the taxpayer and relevant CA’s.  The Directive can be reviewed via the attached link:

http://data.consilium.europa.eu/doc/document/ST-9420-2017-INIT/en/pdf

Belgian’s fairness tax = Unfair

The Court of Justice of the European Union (CJEU) has struck down the controversial “fairness tax” of Belgium, based upon violations of the Parent-Subsidiary Directive and the freedom of establishment.

Taxpayers who have paid this tax should file a claim for refund, and all taxpayers should be aware of any similar “fairness” provision that unfairly discriminates taxpayers based on enacted EU legislation.

EY’s Global Tax Alert provides additional details.

http://www.ey.com/Publication/vwLUAssets/Belgian_fairness_tax_ruled_incompatible_with_EU_law_by_CJEU/$FILE/2017G_03275-171Gbl_Belgian%20fairness%20tax%20ruled%20incompatible%20with%20EU%20law%20by%20CJEU.pdf

Financing risk roadmap: ATO

The Australian Tax Office (ATO) has issued a roadmap and risk guidelines re: intercompany financing parameters.  Taxpayers have an 18-month amnesty period to move their related party financing arrangements to a “green” low-risk zone.  EY’s Global Tax Alert provides further details.

Rest of World: All countries watch what other tax administrations are legislating, thus this roadmap/risk rating process may be arising in many other countries.  This should be an additional warning signal to multinationals to review such arrangements, as what one considers “arm’s-length” may not be completely nil risk dependent on the legislation of particular countries.  Unfortunately, this will lead to additional complexity and probably double taxation consequences.  

http://www.ey.com/Publication/vwLUAssets/Australian_Taxation_Offices_compliance_approach_for_cross-border_related_party_financing_arrangements_has_major_impact_on_multinational_businesses/$FILE/2017G_03234-171Gbl_TP_AU%20TOs%20compliance%20approach%20for%20cross-border%20related%20party%20financing%20arrangements.pdf

US tax developments

President Trump has announced his simplistic intentions re: tax reform, and the timing is critical although lacking in substantive detail.

Apart from a lower rate (still undecided what that will be), the notion of territoriality is reinforced, in addition to the one-time tax on foreign earnings.  The one-time tax is an important part of any legislation, as it will be used to drive the necessary revenues, apart from other provisions, for ultimate passage.

Most importantly, there is a renewed effort by the legislators to undertake discussions with business leaders to better understand the complexity of new legislation and its overall impact on US and global trade.  The proposed import / export actions have reinforced a necessity to understand the widespread impact on different industries and the future economic growth limitations.

Realizing there are many moving parts now on Capitol Hill, it is imperative to call attention to those actions that will impact, positively or negatively, a corporation’s future ability to drive economic growth and new jobs.

http://www.ey.com/Publication/vwLUAssets/Alert:_US_President_Trumps_tax_plan_calls_for_15_percent_business_rate_-_territorial_tax_system/$FILE/2017G_01993-171Gbl_US%20President%20Trumps%20tax%20plan%20calls%20for%2015%20percent%20business%20rate%20-%20territorial%20tax%20system.pdf

VAT: GCC/UAE/India’s new rules

As UAE’s (and some other GCC States) VAT regime, effective 1/1/2018, becomes closer, it is clear that  multinationals (MNEs) need to prepare now re: VAT assessments, information required, system review, etc. to plan effectively for this new indirect tax.

Additionally, India’s new scheme also is in effect starting this year, and a similar exercise should be conducted re: operations conducted in India.

As VAT is an indirect tax, all MNE’s should ensure such local filings are coordinated with regional / global compliance governance controls.

EY’s Global Tax Alert provides additional details re: the GCC’s upcoming rules.

http://www.ey.com/Publication/vwLUAssets/UAE_Ministry_of_Finance_presents_key_information_in_relation_to_proposed_VAT_regime/$FILE/2017G_01345-171Gbl_Indirect_UAE%20MoF%20presents%20key%20information%20in%20relation%20to%20proposed%20VAT%20regime.pdf

PE & Global Mobility partner

As the subject of permanent establishment (PE) becomes more controversial amid the ever-changing rules, multinationals (MNEs) should have a proactive partnership relationship with their global mobility service provider, whether in-sourced or outsourced.

Global mobility generally reports through the HR function, thus a silo approach may result without the proactive ability of the tax function to create a cohesive team.  The concepts of legal employer, economic employer, intercompany allocations, foreign reporting relationships, contractual arrangements, intercompany agreements, etc. all need to be vetted and challenged for every assignment that may have adverse consequences for the employee and/or the company.

Countries are taking a more aggressive PE approach, thus a standard assignment template and / or agreement may not work in today’s post-BEPS world.  India, for example, has very specific rules that dictate a PE without special attention to the control and payment arrangements of the assignment.  Assessments may take years to resolve requiring additional cost and time, including the necessity of external advisors.

The organizational structure of significant functions that may cause consequences for a MNE’s tax organization should be reviewed, possibly adding dotted line relationships for global mobility, customs, external communications, etc.  At the very least, these related functions should be discussing these potential issues on a regular basis, while forming a mini-university for learning.  

As the subject suggests, the organizational structure and reporting relationships should not follow the same-as-last-year approach due to the BEPS evolution around the world.  

 

 

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