IRS Notice 2018-99, published on Christmas Eve, has created quite a controversy in its short history for creating non value-added work in extricating costs of a company’s (leased or owned) parking facilities for which a federal tax deduction would not be allowable. The Notice and TEI’s letter are attached for reference.
TEI’s timely letter expresses the history of this provision, and most importantly the inordinate amount of work, legal fees, etc. that would be involved pursuant to the Notice.
Two safe harbor provisions are suggested for implementation; Owned facilities $100 per parking spot per directly attributable expenses, and leased facilities would use 5% of the rent as the deemed amount subject to disallowance.
It is hopeful that IRS will quickly respond to current controversy and adopt such harbor provisions, or similar provisions, to avoid significant costs involved in preparing the 2018 federal income tax returns.
Click to access n-18-99.pdf
Click to access TEI%20Comments%20on%20Notice%202018-99_FINAL_2.22.19.pdf
Tax Executives Institute, Inc. (TEI) recently provided comments to the proposed BEAT regulations, including the following:
- Use of services cost methodology should be clarified
- A payee’s Subpart F income should be excluded (i.e. avoid double taxation)
- Nonrecognition transactions should be excluded
- A payor’s recognized loss transaction should not also have BEAT implications
- No blended rates
- Anti-abuse rule should be clarified
- A recomputation approach should be available for NOL taxpayers
The thoughtful comments provide additional context of the intent for the BEAT provisions, and suggestions to carry out the intent of legislation without extending into other transactions that would have been initially thought as not within the BEAT purview.
Click to access TEI-Comments-Proposed-BEAT-Regulations-FINAL-to-IRS-19Feb2019.pdf
The Tax Executives Institute (TEI) provided insgihtful comments to the recently issued GILTI Proposed Regulations, addressing the following main points:
- Proposed regulation section 1.951A-3(h)(1) (the “temporarily held property rule”) provides that temporarily held property acquired with “a principal purpose” of reducing a U.S. shareholder’s GILTI inclusion will be disregarded
- Basis adjustment rule for tested losses
- Only used tested losses should increase Subpart F E&P
- Basis reductions should only apply to actual transfers of stock
- Deemed Sec. 367(d) expense should reduce tested income
- Prop. Reg. § 1.951A-2(c)(5) anti-abuse rule (and authority to issue such rule)
TEI’s comments are well reasoned and should be reviewed to further understand the complexities, and need for added clarification going forward.
Click to access TEI%20Comments%20-%20Proposed%20GILTI%20Regulations%20Section%20951A%20-%20FINAL%2026%20November%202018.pdf
Tax Executives Institute (TEI) recently submitted a letter in response to requested comments by the OECD re: revisions to its transfer pricing guidelines. The submission is well drafted and articulate, generally urging OECD to improve current practices rather than adopting new complex mechanisms.
An example of several suggestions is provided:
TEI suggests a number of elements should be included in future guidance to improve transfer pricing compliance practices. First, tax authorities should share their risk assessments with taxpayers so taxpayers can improve their compliance processes where appropriate, or engage in a discussion with tax authorities regarding their view of the taxpayer’s compliance risk. Second, to avoid transfer pricing disputes, Chapter IV should urge tax authorities to focus audit activity on transactions that are more likely to be tax motivated (i.e., between high and low tax jurisdictions), rather than simple intercompany transactions where the taxpayer makes reasonable efforts to price the transactions and where the possibility of a tax motivation is remote. For example, head office cost allocations between countries with relatively comparable tax rates should be viewed as low risk. Finally, the OECD should encourage countries to consider halting interest and penalties if dispute resolution takes longer than two years and if the country does not have a mandatory arbitration procedure.
TEI’s submission should be read in its entirety to further understand the direction of OECD and possible remedies in the complex world of transfer pricing.
Click to access TEI%20Comments%20-%20OECD%20TPG%20-%20Chapter%20IV%20and%20VII%20-%20FINAL%20to%20OECD%2019%20June%202018.pdf
The Tax Executives Institute, Inc. (TEI) previously issued excellent comments regarding divergent views of the Big 4 accounting firms for US GAAP tax accounting issues for the new US Tax Act aspects.
These views are still divergent today as we approach the end of March, and further issues continue to develop that impact the cash tax and tax reporting aspects for the US Tax Act. Accordingly, the same facts may provide a different repatriation tax liability and tax accounting for different multinational companies, certainly a difficult variable for comparison by tax experts and, most importantly, by investors.
As these positions may continue to diverge, position papers and discussions with the audit firm, Audit Committee of the Board of Directors and the company should be scheduled to ensure there are no surprises as earning release dates are emerging.
Click to access TEI%20Letter%20re%20ASC%20740%20treatment%20of%20BEAT%20and%20GILTI.pdf
On October 19, 2017, Tax Executives Institute (TEI) filed a letter with the Platform for Collaboration on Tax, a joint initiative of the World Bank, OECD, International Monetary Fund, and United Nations, regarding the Platform’s draft toolkit on the taxation of offshore indirect transfers. TEI’s comments focused on the need for the Platform’s toolkit to educate and provide options to nations considering taxing offshore indirect transfers, rather than prescribing a preferred approach, among other things.
The Platform for Collaboration on Tax (the Platform), a joint initiative of the Organisation for Economic Co-Operation and Development, International Monetary Fund, United Nations, and World Bank, released a document entitled The Taxation of Offshore Indirect Transfers – A Toolkit (the Draft Toolkit or Toolkit) on 1 August 2017. The Draft Toolkit was designed to help developing countries address the complexities of taxing offshore indirect transfers of assets, which the Platform states is a practice by which some multinational corporations try to minimize their tax liability.
The toolkit and TEI’s submission paper are referenced herein for review
Highlights of TEI’s comments include the following points:
- There should be symmetry and neutrality as compared to direct asset transfers
- Status of toolkit is unclear, and is not a source of authoritative guidance
- The goal of the draft toolkit is unclear
- A capital gains tax can distort economic transactions
- Gains and losses should be the subject of the toolkit
- Most indirect transfers are made for economic, not tax, reasons
- The general treaty definition of immovable property seems to have been abandoned with no reason
The toolkit can be applauded for launching a multi-organizational approach with some good ideas, although such ideas should be further challenged and developed prior to an overall vision and detailed rules promulgated
Click to access discussion-draft-toolkit-taxation-of-offshore-indirect-transfers.pdf
Click to access TEI-Comments-Offshore-Indirect-Transfers-Oct192017.pdf
The Tax Executives Institute (TEI) has provided comments to the FASB’s proposed changes to disclosure requirements for the reporting of income taxes. As the increased transparency demands continue, the attached views exemplify the theoretical and practical considerations for new standards re: added benefits for the readers of financial statements.
As the world of tax increases in complexity, public disclosures should avoid subjective and forward looking projections, as well as avoiding any potential conflicts with strategic forecasts and confidential information.
TEI’s comments are well written and should be welcomed by the tax and financial community looking to increase the transparency and practicality of financial statement times without duplication or non value-added actions.
Click to access Comment-Letter-on-Proposed-Updates-to-ASC-740-Disclosures-PostedJan122017.pdf
As a long-standing advocate of Tax Executive Institute’s (TEI’s) expertise and peer networking for all executive tax members of multinationals, their reappointment as a member of the VAT Expert Group is a sound testament to their advice for the international tax community.
Additionally, TEI’s training programs, and opportunities to be a guest speaker, should be taken advantage of if one has the opportunity.
TEI Appointed as Member to the European Commission’s VAT Expert Group
On September 30, 2016, the European Commission reappointed TEI as a member of the VAT Expert Group for a three-year term. The VAT Expert Group was established in 2012 for the purpose of “advis[ing] the Commission on the preparation of legislative acts and other policy initiatives in the field of VAT” and “provid[ing] insight concerning the practical implementation of legislative acts and other EU policy initiatives in the field of VAT.” The VAT Expert Group’s next meeting will take place on October 17, 2016 in Brussels.
TEI has participated as a member of the VAT Expert Group since its inception. Allard van Nes will continue to continue to serve as TEI’s primary representative and Lorry G. Limbourg will serve as Mr. van Nes’ alternate. TEI wishes to thank Lynne Clare for her work as the alternate representative during TEI’s prior terms.
Tax Executives Institute, Inc. (TEI) has recently submitted comments in response to OECD’s public discussion draft on Action 15 re: technical issues for the upcoming Multilateral Instrument.
A link to TEI’s excellent comments are provided for reference:
Click to access TEI-Comments-BEPS-Action-15-Tax-Treaty-Related-Measures-June-29-2016.pdf
- Mandatory binding arbitration was not included, thus the increase in MAP cases seem inevitable.
- A “baseball” type of arbitration is recommended.
- All MAP cases should be eligible for arbitration.
- All signatories should adopt the Action 14 minimum standard.
- Countries should have the ability to choose what treaty-related BEPS measures it will adopt.
- Countries should have the ability to choose what treaty partners and relevant tax treaties would apply for various BEPS provisions.
- The modified provisions are only effective upon official ratification.
- A new peer process should be adopted for treaty interpretation.
The multilateral instrument is key to the consistent application of BEPS Actions, and the well-written TEI comments are highly recommended for all interested parties.
The referenced TEI comments provide an excellent understanding into the challenges and complexity of Cost Contribution Arrangements (CCAs). http://tei.org/Documents/TEI%20Comments%20BEPS%20Action%208%20-%20CCAs%20-%20FINAL%20to%20OECD%2028%20May%202015.pdf\ Key observations:
- The Discussion Draft comments deviate from the current accepted methodology of sharing costs (apart from contributions of pre-existing intangibles at fair value) into an assessment of value in order to be consistent with the arm’s length principle.
- A CCAs risk arrangement is much different than other contractual arrangements, for which comparability is illusory.
- The Draft provides that low value-added series should be valued at cost for practical reasons, whereas BEPS Action 10 prescribes an election to value such services at a markup of 2-5%. These approaches should be aligned.
- If contributions are measured at value vs. cost, clarity of withholding tax application would be welcome.
- The condition of required balancing payments should be removed as it is not a feature of arm’s-length adjustments.
- Qualifications for a CSA participant should be clarified, as the Draft precludes a participant unless it has “the capability to make decisions to take on the risk-bearing opportunity, to make decisions on how to respond the the risks, and to assess, monitor, and direct any outsourced measures affecting risk outcomes under the CCA.”
- Funding the research and development in a CCA should receive increased emphasis.
- Complex and extreme examples should be accompanied by practical and easy examples to implement CCAs.
TEI’s comments introduce well written rationales for suggested changes to the Draft, resulting in a win-win opportunity for taxpayers and tax authorities. CCAs seem to be difficult to comprehend in various tax jurisdictions, thus the practicality to be introduced would significantly reduce misconceptions / assumptions for the use, and benefits, of a CCA.
TEI has provided recent comments addressing OECD’s Discussion Draft for BEPS Action 3: CFC rules. A link to their comments are provided for reference:
Click to access TEI%20Comments%20BEPS%20Action%203%20-%20CFC%20Rules%20FINAL%20to%20OECD%2030%20April%202015.pdf
- Lack of definitive guidance will introduce additional complexity, double taxation and inconsistency of treaty applications.
- Overlap with other BEPS Actions and the role of CFC rules questions new complex rules at this time.
- Confusion re: transfer pricing rules and excess profits approach with arm’s length principle.
The well drafted comments provide clarity surrounding the complexity and uncertainty for new rules addressing BEPS concerns by interested parties. The first question therefore should always be: Do we need these rules at this time?
Notwithstanding the Discussion Draft’s proposals and comments by TEI, among others, MNE’s should plan for increased efficiencies to coordinate and report information, while ensuring global consistency for application of transfer pricing methodologies.
Tax Executives Institute (TEI) has provided comments to the issuance of BEPS Action 12 Discussion Draft.
A link to TEI’s comments is provided for reference:
Click to access TEI%20Comments%20BEPS%20Action%2012%20-%20Mandatory%20Disclosure%20-%20FINAL%20to%20OECD%2029%20April%202015.pdf
- Multiple levels of disclosure options are provided, leading to inconsistency and complexity
- Information provided is yet another compliance burden for MNE’s, with little cost/benefit to tax authorities
- Concern about release of information to the public, especially prior to the time that full appeals are exhausted
- Tax disclosure should only be required upon filing a tax return with a tax benefit from a reportable transaction
- Limited rules re: who should report
- Primary purpose or de minims filter process is not recommended
- Reporting should be limited to new or innovative aggressive tax planning structures
- Countries with criminal liability provisions should exclude reported transactions with self-incrimination protection
- Penalty protection for reported transactions
TEI’s comments are well written, concise, practical and relevant. Their comments should be carefully reviewed prior to implementation of additional disclosures re: BEPS Action 12 that may prove to have little benefit and significant complexity.
TEI submitted comments on the Modified Nexus Approach for IP (BEPS Action 5) and International VAT/GST Guidelines. Links to the submissions are provided for reference:
Click to access TEI%20Comments%20-%20BEPS%20Action%205%20Harmful%20Tax%20Practices%20-%20FINAL%20to%20OECD%2019%20February%202015.pdf
Click to access OECD%20VAT%20Guidelines%20-%20B2C%20Practical%20Application%20-%20TEI%20Comments%20-%20FINAL.pdf
Summary: IP, BEPS Action 5:
- Accelerated comment process will likely lead to suboptimal results.
- The singular entity approach to benefit from the IP regime is problematic from a potential restructuring necessity and poses deviations from the arm’s length principle.
- R&D and patents have been expressly stated as benefitting from the IP regime, whereas other activities are not yet mentioned.
- Limiting the preferential regime to strictly patents, vs. innovative software, etc., represents a myopic approach.
- The 2021 expiration date for existing regimes seems too short-sighted for patents that may last 20 years.
Summary: International VAT/GST Guidelines
- Unilateral implementation of such guidelines erodes the neutrality principle, leading to double taxation or double non-taxation.
- Recommendations should align with the OECD discussions for a reverse charge mechanism in B2B scenarios.
- Supplier based documentation requirements should be practical and simple.
- The statement that a VAT/GST registration does not create PE should be moved from a footnote to the body of the document for clarity.
- The lack of consistency in application of transfer pricing adjustments for VAT/GST will provide increased risk of double taxation.
- Final rules that are clear and uniformly interpreted should be implemented via simple, consistent, flexible and proportional guidelines.
TEI’s comments for these two critical topics convey practical and thoughtful considerations for change prior to final implementation. They should thereby be reviewed to better understand the global context and potential consequences for these actions.
TEI has provided comments in response to several OECD BEPS Actions, linked herein for reference.
Action 10:Profit Splits-Key comments:
- Profit split methodologies should be limited to scenarios where there is not reliable arm’s length pricing.
- Simple examples provided do not provide a comprehensive basis for detailed replies and consideration.
- A profit split approach may be subject to abuse by tax authorities.
- Hindsight application of transfer pricing methodologies should only be used in exceptional circumstances.
Click to access TEI%20Comments%20BEPS%20Action%2010%20-%20Profit%20Splits%20-%20FINAL%20to%20OECD%206%20February%202015.pdf
Actions 8-10: TP Guidelines
- Transfer pricing analyses discussed in the proposal would require significant resources for MNE’s and tax authorities.
- The possible merging of the approaches of attributing profits for Article 7 (PE) and Article 9 (Associated Enterprises) should be clarified.
- The imposition of “insufficient transfer pricing documentation” penalties should be abandoned/relaxed by tax authorities for a reasonable period of time after implementation of the new guidelines.
- Additional compliance burdens elicit increased complexity and confusion.
Click to access TEI%20Comments%20BEPS%20Actions%208-10%20-%20Risk%20and%20Recharacterisation%20FINAL%20to%20OECD%206%20February%202015.pdf
Action 4: Interest
- The proposal represents a shift away from the arm’s length principle, introducing difficult and impractical problems to resolve.
- Capitalisation factors include many considerations other than tax.
- Double tax consequences are more likely, as MNE’s will not be able to easily rearrange financing structures worldwide.
- The withholding tax impacts should be clarified for foreign tax credit and related calculations.
- MNE’s with a higher effective tax rate, and thus less prone to base erosion or profit shifting arrangements, should be excluded.
- The concept of global limitation calculations, and interest sharing, needs to be further discussed to determine efficient audit guidance.
Click to access TEI%20Comments%20BEPS%20Action%204%20-%20Interest%20Deductions%20-%20FINAL%20to%20OECD%203%20February%202015.pdf
Action 10: Commodities
- Right to use publicly available quoted exchange prices as a comparable is a welcome proposal.
- Discussion of other issues, including pricing, pricing date, and documentation should be further considered and clarified.
Click to access TEI%20Comments%20BEPS%20Action%2010%20-%20Commodity%20Transactions%20-%20FINAL%20to%20OECD%203%20February%202015.pdf
TEI’s comments are always informative, practical and highlight issues that are both useful as well as problematic. Therefore, these comments provide an excellent forum, along with comments from other interested parties, for further consideration prior to drafting final guidance.
Tax Executives Institute, Inc. (TEI) recently published comments re: OECD BEPS Action 10, addressing Low Value-Adding Intra-Group Services, and Action 14 re: Dispute Resolution Mechanisms. The comments elicit practical considerations, including worldwide consistency, in their well written and reasoned responses. Although many individuals/organizations have provided comments, TEI’s submissions merit required reading and thoughtful consideration. Links to TEI’s comments are included for reference:
Click to access TEI%20Comments%20BEPS%20Action%2010%20-%20Low%20Value%20Added%20Services%20-%20FINAL%20to%20OECD%2013%20January%202015.pdf
Click to access TEI%20Comments%20BEPS%20Action%2014%20-%20Dispute%20Resolution%20-%20FINAL%20to%20OECD%2015%20January%202015.pdf
Key comments re: Action 10, Low Value-Adding Services
- Non-global implementation will diminish the intended value of this initiative.
- A “rebuttable presumption” should replace the “benefits test” for low value -added services.
- Exclusion of corporate senior management’s services is complex; it may be easier to include such services.
- A mark-up % of 0-5% should replace 2-5% for flexibility and reflecting cost contribution arrangements.
- Any percentage within the safe harbour range should be allowable.
- Guidance should be issued re: coordination of Action 10 and Action 13 re: transfer pricing documentation.
- Reference to the OECD’s previous work on safe harbours has been omitted, for no stated reason.
- The safe harbour should be available if the taxpayer’s method is different in another jurisdiction (i.e. APA’s, non-OECD alignment).
Key comments re: Action 14, Dispute Resolution Mechanisms
- Published MAP guidelines and procedures are welcome, although redacted settlements would also reveal legal basis for outcomes, and may be used as precedent for taxpayers.
- KPI’s should be established.
- Monitoring the MAP process is an excellent proposal suggested in the report.
- A global dispute resolution mechanism and mandatory binding arbitration should be developed, with arbitration available as a pre-MAP appeal avenue.
- Deadlines for Competent Authority (CA) requests should be in place, along with penalties for CA if they do not respond timely.
- Maintaining confidentiality is critical and should be a primary focus, especially for countries initially adopting this process.
- Transparency of independency for Competent Authorities would improve confidence in the process.
- Taxpayers should participate in face-to-face meetings to facilitate the process, and a simplified process should initiate MAP assistance.
- Precluding taxpayers from using MAP, directly or indirectly giving up their rights, is not acceptable.
- Binding arbitration provisions and/or use of a domestic or treaty-based anti-abuse rule should not preclude MAP.
- Tax, interest and penalties should be suspended during the MAP process.
The comments on Action 14 are especially critical, as dispute resolution will be a critical factor in ensuring that the BEPS guidelines legislated into law will have consistent, fair and transparent processes to resolve disputes timely and effectively.
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