EY’s recent publication takes a close-up view of transparency and disclosure trends, including a detailed analysis of several countries’ latest trends. A link to the report is provided for reference:
Transparency issues of the future:
Country-by-Country (CbC) implementation and inconsistency of approaches
New transfer pricing documentation requirements
Public access for CbC reports and tax rulings
Growing trend to disclose a company’s planning, strategy, risk appetites and effective tax rates
Tax codes of conduct, formal and informal
Increased disclosure of aggressive tax positions
Electronic data gathering
Use of third-party data
Direct ERP access
Matching of data and watching for transactional trends
EU transparency update, including proposed Directives
Country transparency updates: Argentina, Australia, Brazil, China, Denmark, Ecuador, France, Germany, Greece, Mexico, Netherlands, Poland, Singapore, South Africa, South Korea, Spain, UK, US
The level of future transparency will continue to increase, with new and dissimilar demands by countries around the world. This report unveils the global trends and issues, with comprehensive analyses of various transparency trends of major countries. Accordingly, it is a publication that should be reviewed to better understand where the current trends are requiring future demands for transparency in a new world of international taxation.
EY’s Global Tax Alert provides a succinct summary of the latest BEPS (incentivized) developments around the world. A link to the Alert is provided for reference:
Overview of the Alert:
OECD: Documents re: initiative for automatic exchange of financial account information
Africa: Best Practice regional meeting to develop measures for countering BEPS
Australia: Exposure draft law re: transfer pricing documentation to be effective 1/1/2016
Brazil: Report to eliminate interest on net equity (INE) regime
Chile: Foreign residents are to provide a sworn statement to receive treaty benefits
Europe: TAXE Committee’s interim report re: tax rulings and BEPS related topics
Ireland: Knowledge development box
Italy: Patent box regime
Japan: Interest limitations
Korea: VAT re: electronic services
Luxembourg: EU Parent-Subsidiary Directive inclusions (anti-hybrid and anti-abuse clauses)
Saudi Arabia: Virtual Service PE
Spain: Patent box regime
The Alert highlights the continuous and frenzied pace of the BEPS measures, as well as the unilateral efforts that are mirroring the intent of BEPS, although not necessarily in a consistent and cohesive framework.
With the increasing complexity of audits, OECD BEPS incentivized unilateral legislation, General Anti-Avoidance Rules (GAAR), and cases proceeding to arbitration, appeals and Mutual Agreement Procedure (MAP), a comprehensive tax audit diary will prove to be of valuable reference during the audit, from commencement to final determination and thereafter.
Ideally, this diary could be signed/initialed contemporaneously by the company and tax authorities signifying agreement of the summary.
A tax audit diary may include the following components:
Summary of discussions at each audit meeting, including attendees, conclusions, future actions and promised timelines.
Paper/electronic copies of all written audit inquiries received, including a date stamp upon receipt.
Paper/electronic copies of all written audit inquiries provided, including the date provided to tax authorities.
Copies of all reports, including transfer pricing studies, provided.
Agreement as to what documents are not to be provided, with mutual consent of the company and tax authorities.
Documentation of BEPS related discussions / assessments not yet legislated into domestic law.
Summary of discussions re: jeopardy assessments / threats of additional assessments re: Competent Authority filings.
References to adequate / inadequate transfer pricing documentation, as a finding of “inadequate documentation” may provide a basis for additional interest, penalties and possible disallowance of treaty benefits, such as MAP.
The diary should be included in corporate governance documentation that will provide consistency upon changes in personnel during the course of an audit, including relevant appeals.
Additionally, this diary will be instrumental in providing information to Competent Authority personnel and advisors for clarity of the audit negotiations and discussions, as well as serving as one source of valuable reference for the audit, including similar audits of other legal entities in that jurisdiction, joint audits, etc.
A discussion of a joint audit discussion as a component of the Tax Risk Framework is included in an earlier post dated 25 October 2014 for related reference.
The OECD published the OECD Guidelines for Multinational Enterprises (Guidelines) in 2011, this being the latest version of the Guidelines.
A unique feature of the Guidelines is the implementation of National Contact Points (NCPs), agencies established by adhering governments to promote and implement the Guidelines. They also provide a mediation and conciliation platform for resolving practical issues that may arise. Chapter XI of the Guidelines, Taxation, that begins on page 60 outlines important concepts including timely tax compliance, cooperation with tax authorities, compliance with the letter and spirit of the tax laws and regulations of the relevant countries, and conforming transfer pricing principles to the arm’s length principle.
These principles should form an important foundation for a company’s Tax Policy and/or Tax Risk Framework, providing transparent objectives in the global tax risk profile. The link to the Guidelines are provided for reference.
There is also a link to the Annual Report on the OECD Guidelines for Multinational Enterprises 2013, which describes the activities undertaken to promote the observance of the Guidelines during the period June 2012 – June 2013. The Annual Report outlines the role of the NCPs, and content of proposed violations (inclusive of Taxation), that have been submitted for review. All OECD countries, and 11 non-OECD countries (Argentina, Brazil, Columbia, Costa Rica, Egypt, Latvia, Lithuania, Morocco, Peru, Romania and Tunisia) adhere to the Guidelines.
KPMG provides a timely and relevant update of tax dispute resolution issues, coupled with Best Practice ideas. The publication can be accessed from this link:
A summary is provided for quick reference:
US: New IDR process: Required (new) IDR process for all large-case exams: IDR Collaboration (carrot) & delinquency notice/summons procedures (stick)
Risk from whistleblowers: Current climate and Best Practices, including avoidance of retaliation, ethics hotline, procedural awareness, tax dept. procedures, and what to do if you suspect whistle blowing
IRS practices, various items of interest
Global tax disputes, including a focus on UK GAAR (also refer to a prior blog post)
This publication provides insight into today’s tax challenges and risks, to be mitigated by Best Practice ideas that should be an integral part of all multinationals tax framework.
It will be interesting to note developments into the new procedure by IRS as demonstrated by the agents performing the exam, as the summons procedure process is mandatory and has no exceptions. Additional time should be spent understanding the issue raised by IRS, as well as collaborating on the draft inquiry, to benefit from undue data collection and audit inefficiencies.
Additionally, the whistleblower comments should be used to test, modifying as necessary, current internal governance procedures. Such procedures should be reviewed, tested, and modified on an annual / recurring basis.
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:
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.
With China’s commitment on 27 August 2013, all G20 countries have signed the Multilateral Convention on Mutual Administrative Assistance in Tax Matters (Convention), resulting in automatic exchange of information as the new global standard.
Tax authorities are cooperating multilaterally and automatically, as the Convention provides for spontaneous exchange of information, simultaneous tax examinations and tax assistance. The accompanying press release, including a list of the 56 signatories, is available at:
What are the implications on Best Practices for these continuing developments? Ideas for consideration include the following:
Providing taxpayer information to one authority should be viewed as being provided to many countries worldwide, thus maintaining consistency is essential. A formal methodology will ensure Best Practices are being followed.
Tax assistance, simultaneous examinations and joint audits should be envisioned for reviewing the global Tax Risk Framework.
Best Practices for implementation of Mutual Agreement Procedure (MAP) are a topic of frequent discussion by tax authorities worldwide; thus Best Practices for Multinationals should also be focused on risk identification, measurement and application of MAP.
Related posts for reference:
23 July, OECD exchange of information: Multilateral Convention review
27 June, OECD FTA MAP forum to develop Best Practices
25 June, OECD report to the G20: Status, training, effectiveness
20 June, OECD Global Forum on Transparency and Exchange of Information: Activities
The EY report is invaluable in explaining the origins of a general anti-avoidance rule (GAAR), recent developments and future trends. It provides a comprehensive background on GAAR, including results from a survey of 24 countries. The February 2013 report looks at various countries developing GAAR, European Commission recommendations, how and when GAAR measures may be invoked, and what companies can do to mitigate risk in their tax risk management. One of the many highlights in the report is the comparison of tax treaties and domestic application of GAAR.
Examples of EY insights include the following:
GAAR is defined as a set of broad principles-based rules within a country’s tax code designed to counteract the perceived avoidance of tax.
Tax law designed to deal with particular transactions of concern are termed as either specific anti-avoidance rules (SAARs) or targeted anti-avoidance rules (TAARs).
China had started 248 GAAR cases in 2011, concluding 207 cases with taxes collected of $3.8 billion.
Each country will have its own definition of an “abusive” or “avoidance” transaction that could be the target of its GAAR.
A tax benefit, transaction or arrangement within GAAR regimes are not unified, thus requiring a close review of each country’s definitions.
GAAR independent review panels are developing to oversee its application
Virtually all countries have multiple SAAR and/or TAAR provisions, although only a few have been abolished with introduction of a GAAR.
Inconsistency of GAAR application to arrangements that have already been subject to one or more SAAR measures in that jurisdiction, including India, China and Chile.
China SAT seems to be expanding its beneficial ownership test into an anti-treaty shopping/anti-abuse test, creating more uncertainty.
The use of GAAR also extends to benefits provided by tax treaties. Tax treaties include bilateral anti-avoidance provisions, although several countries are applying unilateral anti-avoidance measures via interpretations of existing treaties or applying domestic law GAAR provisions to treaty benefits.
Countries are including in their tax treaties explicit authorization of the application of domestic law anti-avoidance provisions.
Approx. 12 of 24 countries surveyed allow their GAAR provisions to override existing tax treaties, unilaterally or applying domestic GAAR.
30% of participants from a 2012 GAAR webcast responded that they do not address GAAR within their tax risk management approach.
Best Practice: Use a tax governance framework with documented processes for significant transaction sign-off.
Best Practice: New GAAR, SAAR and TAAR proposals should be monitored and factored into the tax life cycle of a multinational business
Best Practice: Transaction documents should state the intended purpose of the overall transaction, as well as each step therein.
Best Practice: Document alternative positions considered, demonstrating that the final position was the only reasonable position to obtain the commercial objectives, and that there were no transactional steps taken that were explicable only in a tax benefit context.
Best Practice: Obtain external advice on significant transactions, including opinions on GAAR.
Several tables include insightful observations, including:
Table 1, GAAR introduction timeline in various countries
Table 2, Burden of proof for each country; taxpayer, tax authority, or shared
Table 3, Examples of 2011-12 tax treaties with reference to application of domestic anti-avoidance rules in the treaty context.
Table 4, Countries providing GAAR rulings/clearances
Additionally, eight questions are posed for a Board to ask in relation to GAAR:
Does the transaction have a valid commercial purpose?
Is the transaction unique and complex?
Is the tax benefit material to the financial statement?
Could the transaction be undertaken in a different manner, without attracting the potential application of GAAR?
Has an opinion been obtained that the transaction will more likely than not withstand a GAAR challenge?
Is the transaction defendable in the public eye?
What is the corporation’s tax risk profile both globally and locally?
How comfortable is the corporation with litigation if it is required to defend the transaction?
The Appendix of the report provides answers, for each of the 24 countries, to the following queries:
Does a GAAR exist? If so, year of introduction and effective date
Can the GAAR be applied retrospectively?
Do specific anti-abuse measures exist?
Does your country have specific legislation in place related to the indirect transfer of assets?
What are the circumstances in which the GAAR can be invoked?
Is the burden of proof on the taxpayer or taxing authority?
Does your country have a GAAR panel?
What is the attitude of the tax authority toward invoking a GAAR?
Is a clearance/rulings mechanism available?
Can the GAAR override treaties when invoked?
What penalties may result from the GAAR being invoked?
Provide a summary of key judicial decisions involving GAAR or other anti-abuse legislation.
Are there any legislative proposals or open consultations that may affect the future composition of a GAAR?
Prior posts for additional reference:
6 August; U.N. Committee of Experts to address the Manual for Negotiation of Bilateral Tax Treaties in October 2013
21 July; UK Finance Act 2013: GAAR has arrived
19 July; OECD BEPS Report & Action Plan
4 July; Italy: New Co-operative Compliance Program
29 June; Board Oversight and Responsibilities for Tax Risk Management
13 June; OECD: A Framework for Co-operative Compliance
5 June; GAAR: India & International Perspective
This report is a comprehensive review of GAAR and should form a foundation for planning significant transactions and adopting Best Practices within the global Tax Risk Framework. For example, the eight questions to be posed by the Board could form Best Practices for planning significant transactions. The report is a valuable tool for regional and global tax teams as the trend of GAAR, and understanding its subjective principles, is becoming more complex in today’s ever-changing tax environment.
The Organization for Economic Cooperation and Development (“OECD”) is quickly following up Step 13 in its Action Plan on Base Erosion and Profit Shifting (“BEPS Action Plan”) for enhanced transparency, information on global income allocation, economic activity and taxes paid among countries, according to a common template. Refer to my 19 July 2013 post for information on the OECD BEPS and Action Plan.
The White Paper takes a “big picture” approach, with interested parties invited to comment by 01 October 2013. An insightful summary outlines significant differences in transfer pricing documentation requirements from country to country, concluding with a recommended two-tiered approach (“Coordinated Documentation Approach”) consisting of a Masterfile and a Local file.
The recommended Masterfile is broad in scope, requesting global legal ownership/structure, geographical location of principal operating entities, in addition to management structure and geographical location of key management personnel. Major business lines would be described in extensive detail, as well as intangible strategies, intercompany financing activities, listing of APAs, MAP procedures and the consolidating income statement.
The Local File describes local management structure and geographical location of senior executives, recent business restructurings including transfers of intangibles, controlled transactions and financial information.
Annex 1 and 2 provide multi-country surveys on transfer pricing documentation and tax return disclosure requirements, with related sources of information for reference.
The OECD believes the Coordinated Documentation Approach offers a balanced trade-off between greater transparency and streamlined transfer pricing documentation requirements.
All international tax executives should follow public comments that are posted by OECD for this new Coordinated Documentation approach, discuss advantages and disadvantages with their peers, in addition to determining if they will provide comments directly. The current methodology of preparing transfer pricing documentation reports should be compared to this suggested approach to initiate insightful planning and efficiencies that will form Best Practices for future years.
I highly recommend reviewing this comprehensive publication by Ernst & Young, focusing on strategies and questions Boards should ask to prepare for tax transparency reporting. One insightful section describes key stakeholders for tax transparency reporting, including consumers, NGOs, Parliamentarians, OECD, and the media.
The publication encompasses the following concepts:
Current context for transparency
Current tax transparency reporting requirements
What others are reporting
Information that could be disclosed
Challenges to be faced
Deriving value from tax transparency
There is an excellent summary, at the end of the publication, depicting a structured approach for managing your tax profile, outlining ideas leading to a Best Practices strategy.
A Best Practices initiative for tax transparency reporting should be initiated, forming a framework to address challenges and identify opportunities.
A proliferation of complex and significant tax risks are at the forefront of global news. Aggressive tax planning, tax avoidance, tax evasion and fraud are terms used interchangeably to describe actions by multinationals. Tax authorities, governments, G8, G20, among others, are discussing new ways to combat these perceived risks in the form of additional tax transparency, audit resources, new legislation, etc. Similarly, tax organization structures should also be reviewed based on a tax risk management approach. Ideas for developing Best Practices in tax risk management include the following:
List the top 5 tax risks; then align these risks with the tax personnel whose primary function it is to focus on such risks.
Are the top 5 risks being managed efficiently internally and / or externally?
Is each risk the top priority of one or more members of the tax team?
Is the strength of each tax member aligned with the respective risk?
Are you currently able to shift resources away from geographical / functional responsibilities to address current risks?
Are the tax members adding focus on these risks in addition to their other responsibilities?
Have specific strategies been developed to address the top tax risks, and champions assignable for each risk?
Are specific training courses being developed to better inform the tax team and the business of developing risks?
Are proactive discussions being held with senior management and the Board to ensure efficient tax risk management?
Is there a quarterly tax risk review to assess status and future actions?
Have internal procedures been reviewed, as well as mitigating controls, to address potential risk gaps?
Is the business aware of such risks on an ongoing basis?
Is this an opportunity to review tax resources to achieve the proper focus on the top tax risks?
Compare the current tax organizational structure with the tax risks; is it fit for purpose?
Review Best Practices for obtaining APA’s, entering mutual audit procedures such as CAP, horizontal monitoring, enhanced cooperation in today’s increased emphasis on mutuality and and tax transparency with tax authorities.
Who conducts audit meetings with tax authorities around the world? Is this an opportunity to minimize risks at an early stage? Are these individuals knowledgeable of the top tax risks? Do you conduct training for audit meetings, including negotiation skills?
Is internal audit aligned to identify tax risk gaps in their routine audit reviews?
Is Global Mobility trained to identify potential PE risks? Consider a review of their internal processes for assignments.
Who reviews Branch activities to ensure such activities do not inadvertently lead to a PE?
Review the Transfer Pricing documentation framework to address transfer pricing issues early.
Ensure Treasury is aligned with the tax risks and processes are in place for intercompany loan arrangements.
Align cross-functionally to ensure new strategies, or a change in current strategies, are reviewed for tax risk exposure.
In summary, I would encourage a review of the tax organization structure based upon a creative tax risk approach, as compared to the present organization to highlight opportunities and Best Practices.