Strategizing International Tax Best Practices – by Keith Brockman

Posts tagged ‘BEPS’

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:

Click to access 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.

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OECD / UN

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Australia BEPS: Not waiting for OECD

KPMG has provided an excellent overview of Australia’s unilateral efforts to carry out OECD’s proposals.

http://www.kpmg.com/Global/en/IssuesAndInsights/ArticlesPublications/taxnewsflash/Pages/2014-1/australia-effects-of-documentation-country-by-country-reporting-for-australian-taxpayers.aspx

Some key questions include:

  • From a OECD perspective, Would penalties be applicable when a Country-by-Country (CbC) template is not completed, if such information is part of the Transfer Pricing Master File?
  • The Australian Tax Office (ATO) has already started its process to collect similar information as the CbC template, with 125 review notification letters to be sent to taxpayers, requesting detailed international data and a presentation to the ATO.
  • The ATO review would include details of global corporate value chains, including sales, profits, and taxes paid in every jurisdiction, payments to / from low tax jurisdictions, e-commerce and tax risk governance.  The ATO should ensure that confidential information is only shared with other tax authorities in alignment with confidentiality protocols judicially established in each respective jurisdiction.  Additionally, it will be interesting to note how such information is defined, or not defined, by the ATO to ensure information that is collected from taxpayers will be consistent for analyses.

These actions bring forth additional questions re: the OECD proposals, the ATO’s response and advance warnings to taxpayers of how such information will be collected and provided in advance of the OECD’s timelines.  To the extent procedures are enacted by taxpayers to collect such data, while the OECD and other tax authorities provide different rules, definitions and timelines, it will substantially increase time and cost by multinationals to respond to multiple initiatives.

Another point of consideration is the symmetry of ATO’s CbC request with that of the OECD: Will the ATO change their rules to coincide with that of the OECD when such rules are issued, and will the separate country’s legislation trump / override the OECD’s final recommendations?

 

 

 

 

 

 

 

 

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OECD / UN

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OECD BEPS Action Plan: Revised timeline

The OECD has recently published a revised timeline for its Base Erosion and Profit Shifting (BEPS) Action Plan that can be accessed via the attached link:

Click to access calendar-planned-stakeholders-input-2013-2014.pdf

With a short timeframe for comment to multiple initiatives, it is imperative to review this timeline change, especially if comments are to be prepared.  This revision in timing also provides transparency for the OECD’s aggressive objectives to assess the milestones accordingly.

The OECD timeline also highlights the expedited actions of individual EU Member States, and other countries, to implement independent BEPS initiatives that may, or may not, be in alignment with the OECD’s final proposals.  To the extent such objectives are significantly different in principle and approach, it has not yet been envisaged if, and how, such disparities will be resolved by taxpayers and tax authorities.

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OECD / UN

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Canada’s BEPS initiative, with Treaty Shopping: 2014 Federal Budget

Details of Canada’s initiative to develop its own Base Erosion and Profit Shifting (BEPS) action plan are outlined in its 2014 Federal Budget, with a link to KPMG’s comments on the Budget referenced herein.

Click to access tnfc1408.pdf

Highlights of the tax initiatives include proposals to expand existing anti-avoidance rules for thin capitalization, and a back-to-back loan provision.  Additionally, the Budget has requested comments, by June 2014, to the following questions for a framework to develop its own BEPS Action Plan:

  • What are the impacts of international tax planning by multinationals on other participants in the Canadian economy?
  • Which of the international corporate income and sales tax issues identified in the OECD BEPS Action Plan should be considered the highest priorities for examination and potential action by the government?
  • Are there other corporate income tax or sales tax issues related to improving international tax integrity that should be of concern to the government?
  • What considerations should guide the government in determining the appropriate approach to take in responding to the issues identified?
  • Would concerns about maintaining Canada’s competitive tax system are alleviated by coordinated multilateral implementation of base protection measures?
  • What actions should  the government take to ensure the effective collection of sales tax on e-commerce sales to Canadian residents by foreign vendors?

The Budget also addressed the treaty shopping consultation paper released in August 2013, which TEI provided comments thereto (refer to 14 January 2014 post).  The government’s position is that  a domestic law re: treaty shopping is preferable to a treaty-based approach.  This proposed rule would be included in Canada’s Income Tax Convention Interpretation Act, thus applicable to all of Canada’s treaties.  Comments on this position are to be submitted within 60 days.  General provisions of this rule are summarized for reference, with a separate link provided for KPMG’s Submission on Canada’s Consultation on Treaty Shopping in December 2013 :

Click to access kpmg-submission-to-treaty-shopping-consultation.pdf

  • The domestic treaty-shopping rule is a “general purpose” provision, versus a “limitation on benefits” approach.
  • A tax treaty benefit is denied for relevant treaty income if it is reasonable to conclude that one of the main purposes for undertaking a transaction, or a transaction that is part of a series of transactions or events, that results in the benefit was for the person to obtain such benefit.
  • It relies on the conduit presumption for tax treaty benefits, absent proof to the contrary.  Safe harbour presumptions are provided for this test.

With the OECD working aggressively to finish the BEPS Action Plan items timely, including the recent draft of a Country-by-Country Reporting template for comment, it is hoped that new international principles and documentation standards being developed are not adopted earlier, and unilaterally, by countries each changing such rules based on its sole interpretation and discretion, which later are effected into local legislation.

Most importantly, multinationals and other interested parties should monitor BEPS related provisions in countries proposing separate legislation, in addition to that proposed by the OECD.  To the extent the OECD’s principles differ from separate country legislation, international tax challenges will significantly increase, with additional likelihood of double taxation.

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Transfer Pricing

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PwC TP update / Best Practices

PwC has published an informative update addressing hot topics in transfer pricing for different industries.

Click to access pwc-tpp-perspectives.pdf

Key industries and issues addressed comprise the following:

  • Oil & Gas: intercompany service charges re: direct/indirect benefit and Competent Authority in non-treaty countries
  • Global Audits: MAP, OECD BEPS Action Plan, Cooperative Compliance programs, arms-length principle, PE, GAAR and Strategic Risk Assessment
  • Industrial Products: Cost Sharing Agreements, Intangibles, Supply chain management, M&A interaction
  • Interco. Financing: Guarantee fees, transfer pricing methodologies
  • Financial Industry: Dodd-Frank Act, Regulatory practice coordination with transfer pricing
  • Russia TP: New rules 2012 introducing arms-length principle, new Department and work group re: TP, specialized TP group re: intercompany transactions
  • S. America: Global marketing/sourcing, intercompany services documentation, currency restrictions
  • Real Estate Funding
  • ERP Systems and TP
  • Politics of taxation: OECD BEPS Action Plan, TP disclosures, PE risks
  • Pharmaceutical / Life Sciences
  • Value Chain Transformation: Model Maturity matrix

This publication is relevant and timely, including Best Practices and transfer pricing issues for different industries.

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Transfer Pricing

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Belgium renews transfer pricing emphasis

The Belgian tax authorities (BTA) are accelerating their focus on transfer pricing ahead of the OECD’s recommendations from its Base Erosion and Profit Shifting (“BEPS”) Action Plan.  The transfer pricing initiatives are highlighted herein for reference and are discussed in the attached link from PwC.

http://www.publications.pwc.com/DisplayFile.aspx?Attachmentid=7092&Mailinstanceid=28847

Summary of initiatives:

  • Additional transfer pricing resources, with 30 individuals assigned to transfer pricing by year-end 2013.
  • A targeted action plan was started in January 2013, selecting 230 companies for a transfer pricing audit.
  • Determine taxpayer selection via risk assessment by the transfer pricing audit team, leveraging on information exchange with foreign tax authorities.  Companies with significant loss carry-overs and/or volatile profit margins will reflect a high risk rating.
  • The Belgian Tax Authority’s Special Investigation Tax team, re: fiscal fraud, and its transfer pricing audit team will form a collaborative centre of excellence to collect and share transfer pricing knowledge, including sharing respective databases.
  • An extension of the 3 year statute of limitations is envisaged.

As evidenced by the Belgian initiatives, the focus on transfer pricing will intensify as information initiatives are being developed within a jurisdiction in addition to exchange of tax information with other tax administrations.  These initiatives dictate increased emphasis on transfer pricing documentation for risk assessment and issue consistency in response to audits as tax information is shared.

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Transfer Pricing

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EU Parent-Sub Directive: GAAR/Mismatch proposals

The proposals for the EU Parent-Subsidiary Directive have been published, with a summary and KPMG review in this post.

Proposed amendments on 25 Nov., 2013

•    Domestic law implementation

•    Financial mismatches (PPL, hybrids, etc.)

•    GAAR:

Artificial arrangements: to gain improper tax advantages, and defeats object, spirit & purpose of tax provisions

•     Compliance with Directive by 31 Dec. 2014

Determination of artificiality (one or more):

•     Legal characterization, vs. legal substance, of individual steps

•     Does not reflect economic reality

•     Arrangement is not ordinarily used in reasonable business conduct

•     Arrangement has offsetting or cancelling elements

•     Transactions are circular in nature

•     Arrangement results in a significant tax benefit which is not reflected in the business risks undertaken by the taxpayer

Click to access eu-nov25-2013.pdf

This proposal follows GAAR implementations by several countries in advance of the OECD BEPS Action Plan.  This subjective anti-avoidance action should be followed, as other countries will also be examining the relevant wording and guidance therein.

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Tax Risk Management

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South Africa’s Davis Tax Committee: Update / BEPS alignment & input

Following his 2013 Budget announcement, the Minister of Finance publicised the members of a tax review committee on 17 July 2013. The committee, now known as the Davis Tax Committee (DTC), will examine the role of South Africa’s tax system to promote growth, job creation, sustainable development and fiscal self-reliance. It will take the long term objectives of the National Development Plan into account in its work.  The following links provide reference to the DTC homepage and biographies of its members.

http://www.taxcom.org.za/aboutus.html

Click to access Tax%20Review%20Committee%20-%20Brief%20Biographies.pdf

Using its Terms of Reference as the point of departure, the DTC has adopted a work programme that has prioritised the establishment of specialist sub-committees on small businesses, the appropriateness of the tax base and tax mix in South Africa, and base erosion and profit shifting (BEPS).

The DTC has also adopted an approach that is participatory and consultative. This will provide for wide engagement with all stakeholders. Special dialogue sessions are arranged on an ongoing basis to take into account a diversity of interests and opinions. The DTC accordingly calls upon all interested parties to make use of the opportunity to contribute to the mentioned priorities for now.

Top priority of the DTC at the moment is to address ways in which the tax system can be improved to facilitate entrepreneurship and the growth of small businesses. Various tax packages already exist to encourage small businesses. The DTC needs to review these packages to find an optimal tax package that assists small businesses in contributing towards economic growth and reducing the high unemployment rate. Urgent contributions in this regard will be most welcome by 20 November 2013.

Contributions with regard to the tax burden and tax mix are invited by 30 November 2013. The BEPS Sub-Committee is working on a longer timeframe that is aligned with the OECD BEPS Action Plan. Contributions with regard to BEPS are welcome by 31 January 2014.

All contributions can be made via e-mail to taxcom@sars.gov.za . More details on the work of the DTC and its Terms of Reference can be found on its website, http://www.taxcom.org.za .

For multinationals with operations in S. Africa, it is beneficial to maintain reference to the operations of the DTC, their alignment with the OECD BEPS Action Plan and provide input, as applicable.  

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Tax Risk Management

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EU JTPF: Transfer Pricing – Secondary adjustments review

The EU Joint Transfer Pricing Forum (JTPF) report on secondary adjustments was agreed in October 2012.  With the OECD Base Erosion and Profit Shifting (BEPS) Action Plan currently under discussion, it is worthy to review the process of secondary adjustments and their various implications and complexities.  The report discusses the adjustments under the EU Parent Subsidiary Directive, EU Arbitration Convention, and Mutual Agreement Procedure (MAP).  For non-EU countries, it is imperative to review consequences of a secondary adjustment due to additional costs, complication and double taxation risks.

Click to access final_report_secondary_adjustments_en.pdf

It is possible that a transfer pricing adjustment is accompanied by a so-called “secondary adjustment”.

Transfer pricing legislation in some States allows or requires “secondary transactions” in order to make the actual allocation of profits consistent with the primary adjustment. Double taxation may arise due to the fact that the secondary transaction itself may have tax consequences and results in an adjustment.

The OECD MTC does not prevent secondary adjustments from being made where they are permitted under domestic law.

Secondary adjustments may in some Member States be subject to specific penalties or result in penalties under the general penalty regime.

Procedure for removing double taxation: In their responses to the questionnaire on secondary adjustments most Member States which apply secondary adjustments stated that they do not consider double taxation issues resulting from secondary adjustments as being covered by the Arbitration Convention (AC), only a few consider them covered by the AC Convention, and some other MS indicated that the applicability of the AC to secondary adjustments remains an open question for them.  However, most Member States applying secondary adjustments would be willing to address them in the course of a MAP. Therefore, in cases where it is not possible to avoid double taxation at the outset, e.g. by way of applying the Parent Subsidiary Directive (PSD), a taxpayer would – in a case of (potential) double taxation resulting from a secondary adjustment – have to file two requests, i.e. a request under the Arbitration Convention and a request for a MAP. The latter would require in each case a treaty being concluded between Member States that includes a MAP provision comparable to Article 25 of the OECD MTC (preferably including an arbitration clause as per Article 25 (5) OECD MTC).

A review of secondary adjustments, and their application for transfer pricing adjustments, should be reviewed in advance of final audit settlements to ensure additional complexities do not arise.

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Transfer Pricing

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OECD G20 Report & Best Practice Analogies

OECD’s report to the G20 leaders in St. Petersburg, Russia is attached for reference, consisting of a Progress Report to the G20 in Part I, and details of the OECD Base Erosion and Profit Shifting (BEPS) Action Plan and offshore tax evasion efforts in Part II.  This posting will capture some highlights from the report, and pose analogies for Best Practices in alignment with the OECD’s initiatives.  The report may be accessed at:

Click to access SG-report-G20-Leaders-StPetersburg.pdf

The Introduction provides commentary on “legal tax avoidance,” renewed demands for greater transparency, calling for all taxpayers to pay their fair share, and completion of a global model for automatic exchange of information by 2014.

Initiatives of the Global Forum on Transparency and Exchange of Information (the Global Forum) have resulted in 119  jurisdictions committed to standards of transparency and exchange of information.  Best Practices includes communicating  results of the Global Forum to global and regional tax teams, and business leaders, to ensure that global consistency of information is being provided to tax authorities.  

The Global Forum promotes exchange of information via a monitoring and peer review process.  The process includes Phase 1 reviews, examining a jurisdiction’s legal framework for exchange of information, and Phase 2 reviews that examine information exchange in practice.  How well does the exchange of information process work for Multinational Enterprises (MNEs)?  Is this report, with a schedule of subsequent discussions on its impact, automatically sent to all tax team members, or is each individual personally responsible for accessing, reading and comprehending the report, including Phase 1 and Phase 2 reviews?

Peer reviews result in recommendations for improvement, with all jurisdictions required to provide follow-up reports describing actions taken. Re: global audits, are recommendations for improvement provided during, and after, the audit, with action steps documented?

The Global Forum has organized four training seminars in 2012, and five training seminars this year, in addition to implementation toolkits.  Appendix 4 of Part 1 provides a listing of members and observers, inherently resulting in potential impacts for these proposals beyond the OECD member countries.  How many training forums and business tools have been provided by MNEs in the last two years to review the ongoing trend of global tax proposals?

Part 2 lists the 15 activities of the BEPS Action Plan to be addressed by all relevant stakeholders.  For analogy, has the MNE also listed those same activities, addressing potential impacts, risk quantifications and expected actions for each of the proposals, including a relevant timeline and accountability?  Are all international tax team members and business leaders aware of the BEPS Action Plan?

Automatic exchange of information is becoming the norm, versus the exception, for tax authorities around the world.  How are tax changes, audit queries, changes in tax laws, etc., communicated within the MNE enterprise quickly and efficiently?  Is  a tax newsletter communicated to the global business, addressing areas of focus and learning?

Annex 2 of the Progress Report outlines a model of multilateral automatic exchange of information designed to implement a step change in transparency.    This section is useful in addressing future legislative changes, draft model competent authority agreements, legal / confidentiality concerns, and legal bases for the exchange of information.  MNEs should track public comments and future changes of OECD member countries and observers to address these initiatives.

The highlights of the OECD G20 Report, and suggested comments for Best Practices, are meant to promote creative thought and reflection to effectively plan for the rapid evolution of change in the international tax arena.

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OECD / UN, Tax Risk Management

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OECD Base Erosion and Profit Shifting (BEPS) report & Action Plan

http://www.oecd.org/tax/beps.htm

Click to access OECD.pdf

The BEPS report, previously released, and the new Action Plan are available for public review, with many commentators already providing insight on the Action Plan.

The 24 month Action Plan is comprehensive and aggressive, with tax transparency and disclosure rules likely to be implemented early in that timeline.  The report also discusses an improvement of global rules in developing countries, further referenced by work of the Tax Inspectors without Borders study, as discussed in my 9 June 2013 post.

One very interesting proposal in the report is the development of a multilateral convention to address BEPS issues.  This will allow countries to rapidly implement some actions without formally renegotiating bilateral treaties.  Additionally, Appendix C provides examples of tax planning structures by multinational organizations.

The OECD BEPS report and Action Plan will provide additional momentum and debate for the proposed actions, for which multinationals should prepare an internal action plan to address such initiatives.

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OECD / UN, Tax Risk Management, Transfer Pricing

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