Strategizing International Tax Best Practices – by Keith Brockman

Posts tagged ‘transfer pricing’

Singapore: TP comments

The Inland Revenue Authority of Singapore (IRAS) has issued a consultation paper requesting comments on a revision to their transfer pricing (TP) guidelines.  The particular questions for which comments are requested, no later than 24 September, consist of the following:

  • Challenges in preparing TP documentation contemporaneously
  • Difficulties in obtaining group and entity information in Annex A of the paper
  • Examples of low-risk documentation areas
  • Frequency of documentation updates

A link is provided for reference to the consultation paper:

Click to access pconsult_IT_Transfer%20Pricing%20Documentation_2014-09-01.pdf

Key observations:

  • TP documentation to be organized in alignment with the OECD master file and local entity reporting methodology.
  • TP documentation not applicable for routine services with a 5% safe harbour mark-up
  • Inadequate TP documentation will lose the support of IRAS in MAP discussions to resolve double taxation.
  • Annex A provides additional requests for group information that may be the source of requested comments, including:
    • Worldwide organization chart
    • Group’s business models and strategies
    • Profit drivers, including a list of legal ownership for intangibles
    • Supply chain activities and functions
    • Business relationships among all related parties
    • Group’s transfer pricing policies for all types of transactions between related parties
    • Consolidated group financial statements

Singapore is a jurisdiction (and there may be many more) that is reviewing the OECD’s Action Plan country-by-country reporting template and forthcoming comments as a base upon which to expand TP reporting.

Multinationals will need to capture every country’s additional legislative requirements arising from the OECD’s Action Plan.  The additional complexity, cost and time will place a further constraint upon the ability to provide information perceived to be directly relevant for every jurisdiction around the world.  Additionally, the threat of lack of support for the MAP process via a determination of inadequate TP documentation (if legislated into law) will increase the risk of double taxation and TP appeals worldwide.

All interested parties should take time to submit comments prior to the 24 September deadline.

 

 

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Tax Risk Management

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IMF Policy Paper: Int’l Tax Spillover Effect

The International Monetary Fund (IMF) has published an interesting paper addressing the impacts that current, and proposed, international tax legislation has on others.  Selected key issues include tax treaties, indirect transfers of interests, interest deductibility, arm’s length pricing, formulary apportionment, treaty shopping, and appendices of tables and statistics.  The paper also highlights guiding principles for international tax design, timely concepts as the OECD is preparing to publish responses to several of its BEPS Action Plan items this coming week.

The paper can be referenced at:

Click to access 050914.pdf

The paper is valuable in addressing tax policy topics and issues, thereby setting the stage for future international tax debates.

 

 

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Transfer Pricing

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Best Practice TP article: TP documentation: time for a strategy refresh

I have attached for reference my first published article, addressing transfer pricing documentation: time for a strategy refresh.

The article was published by Accountancy Magazine.  A reference to the article is included for reference:

https://www.accountancylive.com/transfer-pricing-documentation-time-strategy-refresh

The article addresses the OECD BEPS proposals, including country-by-country reporting, with Best Practice ideas included for Action Plan items.

Additionally, insights into processes for developing a comprehensive plan for revised TP documentation are discussed.

Finally, the hot topics of General Anti-Avoidance Rules (GAAR), local tax disclosures and tax policy statements are addressed for further insight.

 

 

 

 

 

 

 

 

 

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Transfer Pricing

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Australia TP: Self-assessment regime

Australia’s new transfer pricing rules require that officers signing the corporate tax return must sign off for transfer pricing arrangements on a self-assessment basis.  The self-assessment process would affirm that the transfer pricing is pursuant to arm’s length consideration that would be transacted between unrelated parties.  Details of the new self-assessment regime are referenced at the attached link:

http://www.kpmg.com/AU/en/IssuesAndInsights/ArticlesPublications/tax-insights/Pages/a-new-obligation-for-public-officers-28-august-2014.aspx

Additional review of transfer pricing documentation may be required for self-assessment consideration.  The OECD BEPS proposals may also impact such reporting in the future.

 

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Transfer Pricing

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Service fees & royalties: China’s SAT new (backward) focus

China’s State Administration of Taxation (SAT) issued an internal circular, instructing tax bureaus to review, and report, companies that have made large service fee or royalty payments between 2004 and 2013.  Tax bureaus will submit their findings to the SAT by September 15, 2014, followed by special investigations and potential tax adjustments.  The transfer pricing audit period is 10 years, thus the look-back period is within the statute of limitations.  The KPMG Tax Alert is provided for reference:

Click to access tp-china-aug25-2014.pdf

Key observations:

  • SAT’s commentary to the UN in April 2014 sets forth stricter guidelines for payment and deductibility than the OECD guidelines suggest (i.e., if the beneficiary is not in need of such services or the provider also benefits, then benefit by the service recipient alone is not justification).
  • Additionally, the SAT argues that the definition of shareholder services in the OECD Guidelines is too narrow.
  • Payments made to “tax haven” jurisdictions will receive special attention.
  • Economic substance in overseas entities will be reviewed.

Service fee and royalty payments are receiving global attention by tax authorities, although this retroactive review and narrow interpretation of deductible payments by the SAT will lead to additional assessments and the risk of double taxation going forward.  Multinationals should review transfer pricing documentation with respect to China, including the identification of any duplicative services as well as the benefits received from such services by major jurisdictions.

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Transfer Pricing

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Global tax policy in 2014: EY publication

Ernst & Young (EY) has published a very informative study, based on a survey of 830 executives in 25 markets.  The second section of the publication includes analyses of tax outlooks for 38 countries, including BEPS actions.  The 38 countries highlighted in the publication include:

Australia / Austria / Belgium / Canada / Chile / China / Czech Republic / Denmark / Finland / France / Germany / Greece / Hong Kong / Hungary / India / Ireland / Italy / Jordan / Korea / Lithuania / Luxembourg / Malaysia / Mexico / Netherlands / New Zealand / Norway / Panama / Poland / Russia / Singapore / Slovakia / South Africa / Spain / Sweden / Switzerland / United Kingdom / United States / Venezuela

A link to the publication is included for reference:

Click to access EY-the-outlook-for-global-tax-policy-in-2014.pdf

The publication includes an introductory section highlighting tax rates and a 2014 tax policy outlook.  The outlook includes the following sections:

  • How countries are adjusting their corporate tax base in 2014
  • Incentives
  • Withholding taxes
  • Transfer pricing changes
  • Interest / Business expense deductibility
  • Changes to tax treatment of losses
  • Changes to CFC rules / thin capitalization

The second section analyzes 38 separate countries, addressing the following topics:

  • Tax rates
  • 2014 tax policy outlook:
    • Key drivers of tax policy changes
    • Fiscal consolidation / stimulus
    • Tax policy outlook for 2014, including political landscape, current tax policy and administrative leaders, key tax policy changes in 2013, country position on OECD BEPS Action Plan, pending tax proposals and consultations opened / closed.

This publication is especially valuable in country outlooks, including the OECD BEPS Action Plan proposals, and should be consulted to develop continued awareness of current and future trends in international taxation.

 

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Tax Risk Management

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Secondary TP adjustments: Legislation for S. Africa 2015

S. Africa has introduced a change in its legislation for 2015 addressing “secondary adjustments.”  The legislation aims to revert to a “deemed dividend”  concept of classification from the current “constructive loan” methodology.  A link explaining the legislation, in addition to the OECD definition of a “secondary adjustment” is provided for reference:

http://www.kpmg.com/ZA/en/IssuesAndInsights/ArticlesPublications/Tax-and-Legal-Publications/Pages/Additional-changes-made-to-transfer-pricing-legislation.aspx

Prior to final settlement of any audit, the effect of a “secondary adjustment” as well as a “corresponding adjustment” in another jurisdiction should be known to preserve appeal rights for that audit while avoiding double taxation.  This knowledge should be comprehended and utilized as an effective audit tool by internal tax and legal colleagues, in addition to external advisors ( who may not have multinational audit defense experience).

 

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Tax Risk Management

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OECD report to G20: Issues re: Developing countries

The OECD has published a report (Part 1) addressing base erosion and profit shifting (BEPS) in developing countries and how these relate to the OECD/G20 BEPS Action Plan. A ranking of low, medium or high is assigned to each of the 15 Actions in Annex A re: the impact on developing countries.  Section 5 of the report highlights the primary issues to be addressed, including base-eroding payments, treaty issues, new business models and transfer pricing documentation.

Part 2 of the report, to be presented in September 2014, will (1) confirm which of the Actions are of most relevance to developing countries, (2) discuss other BEPS-related issues not in the Action Plan, and (3) address actions needed to ensure that developing countries can fully benefit from the Action Plan items and how specific BEPS actions may need to be adapted/simplified or supplemented to ensure they are effective for developing countries.

An interesting comment in the Executive Summary states: “The international nature of tax planning means that unilateral and uncoordinated actions by countries will not suffice and may actually make things worse.”  Note that recent unilateral actions by developed countries to advance BEPS initiatives would further corroborate this statement.

Additionally, it is stated that approx. 3,000 bilateral tax treaties operate worldwide, with about 1,000 of these involving developing countries.  This is a significant fact, as the OECD seeks to ultimately develop tools for countries to enact such legislation, notwithstanding the fact that it may take years to achieve global implementation.

A link to the report is provided for reference:

http://www.oecd.org/tax/part-1-of-report-to-g20-dwg-on-the-impact-of-beps-in-low-income-countries.pdf

The report is invaluable as it provides significant trends and challenges faced by developing countries, coupled with potential solutions under consideration to address such challenges.

 

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OECD / UN

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Chinese GAAR: Review of a draft “Administrative measure”

The Chinese State Administration of Taxation (SAT) has released draft General Anti-Avoidance Rules (GAAR) to supplement its current GAAR legislation and Circular 2.  The draft rules, when final, will be effective for all arrangements executed after 1/1/2008, the effective date of the Corporate Income Tax Law and the Detailed Implementation Rules.  The KPMG tax alert provides relevant information for this draft guidance, which can be referenced at the following link:

http://www.kpmg.com/CN/en/IssuesAndInsights/ArticlesPublications/Newsletters/ChinaAlerts/Documents/China-tax-alert-1407-19-Guidance-on-Chinese-General-Anti-Avoidance-Rule.pdf

Observations of “clarifications” to the law:

  • Shift from a “primary purpose” test to include “one of its main purposes” to obtain tax benefits.
  • Ordering rules are set forth: Domestic SAARs, Treaty SAARs, and domestic GAAR.
  • It is noted that in most recent Chinese tax treaties, there is a “Miscellaneous Rule” article reserving the right to use GAAR irrespective of treaty commitments.
  • There is not a GAAR review committee.
  • Documentation to be provided by taxpayers includes communications between the taxpayer and its tax advisors, and other parties to the transaction.
  • Documentation may also be requested directly from the tax advisors to the taxpayer.
  • GAAR adjustments include re-characterization of the arrangements, or income, deductions, tax incentives and related foreign tax credits, denial of the existence of a party to the transaction, and any other reasonable method.

This draft emphasizes the use of GAAR by tax authorities to counter perceived tax abuse and treaty shopping techniques.  There is a complex interplay between the treaty provisions, by which treaty relief may be sought, and domestic legislation whereby there is a higher possibility of double taxation.  Prior posts re: GAAR may also be searched in this blog, detailing a non-uniform burden of proof standard, high subjectively threshold and the continuing development of this anti-abuse provision by tax authorities around the world.

It is noted that the draft rules also extend documentation requests directly to tax advisors, including communications to or from the taxpayer.  This explicit provision emphasizes the importance of coordinating relevant communications between the taxpayer and all outside parties to ensure that form and substance requirements are aligned.

GAAR documentation should be considered for all transactional planning, including prior transactions for which current developments are evolving.

 

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Transfer Pricing

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Asia Corporate Treasury risks: Tax & Treasury collaboration

PwC has published the inaugural Asia Corporate Treasury Survey 2014, based on responses from 117 organisations across 7 countries in Asia.  The Report includes risk management approaches, treasury structures and various other treasury topics that revealed significant opportunities for Asian treasury centres to deliver strategic business benefits.  The Report highlights the necessity of tax and treasury collaboration in developing Best Practices due to the mutuality of objectives and complementary issues for which one function should not operate independent from the other.  A link to the Report is included for reference:

http://www.pwc.com/en_GX/gx/audit-services/corporate-treasury-solutions/assets/pwc-building-the-case-for-asia-corporate-treasury-fa.pdf

The Contents include the following topics:

  • Deployment of treasury staff
  • Core treasury activities in Asia
  • Treasury function in Asia
  • Key financial risks
  • Risk approach
  • Hedge accounting
  • Bank relationships
  • Type of debt used
  • Funding management strategies
  • Investment of excess cash
  • Key cash management activities in Asia
  • Cash centralisation
  • Treasury technology
  • Future changes to think about

The Report provides valuable insight into the rapidly growing Asian region and the complexities encountered in addressing Best Practice methodologies,

Every organization should periodically review the structure of tax and treasury due to their interwoven functions, as well as compare the risk drivers for each function.

Relevant Best Practice questions include the following examples:

  • Are the tax risk framework and treasury risk framework integrated processes, or are such frameworks developed independently?
  • Does tax and treasury share updates re: new debt instruments, OECD BEPS action plan, hybrid instruments, triggering foreign exchange risk proactively, etc.?
  • Are training workshops / opportunities provided for the integrated functions, leading to a Best in Class methodology for both treasury and tax processes?
  • What is the future vision for tax and treasury?
  • Is the transfer pricing documentation for loans, pooling structures, etc., consistent with current treasury practices globally?
  • What is the withholding tax certification process from a tax and treasury perspective?

The Report, and Best Practice observations, are valuable topics for internal discussion and benchmarking the combined processes with peer organizations.

 

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Tax Risk Management

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Treasury related transfer pricing disclosures: Czech Republic

The Czech Republic has published new tax return disclosure requirements for the 2014 year, including 2013 data for selected taxpayers.  A link to the requested information is provided for reference:

Click to access KPMG-Financial-Update-2014-07-Special-Issue.pdf

The Czech Republic disclosures include the amount of short-term and long-term intercompany receivables and payables at the end of the current and prior years for comparison.

Best Practice: Treasury training for BEPS – As more countries implement transfer pricing disclosure legislation, with increased emphasis on intercompany loans and financing transactions, it is imperative that Tax Team members provide BEPS training for international treasury centers.  This training should raise awareness of the OECD BEPS initiatives resulting in increased disclosures and inquiries from Business Units, as well as provide internal transparency and governance for significant treasury transactions.

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Transfer Pricing

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UN BEPS Questionnaire: Contrasting comments re: Arm’s length principle

The UN Subcommittee on Base Erosion and Profit Shifting (BEPS) Issues for Developing Countries has reiterated its request for comments to its BEPS Questionnaire, copied herein for reference.   Additional time is available for comments submitted by 8 August 2014.

The Subcommittee is mandated to draw upon its own experience and engage with other relevant bodies, particularly the OECD, with a view to monitoring developments on base erosion and profit shifting issues and communicating on such issues with officials in developing countries directly and through regional and inter-regional organizations.

Links to the Questionnaire and responses are provided.  Comments from Brazil, Mexico, Singapore, Christian Aid & Action Aid, and the Economic Justice Network and Oxfam South Africa are posted for review.

http://www.un.org/esa/ffd/tax/Beps/index.htm

Click to access BepsIssues.pdf

The wide divide in the role (and perception) of the arm’s length principle for transfer pricing is very apparent in the responses from Singapore and Christian Aid & Action Aid.

Actions 6 &  7: Singapore’s comments: 
“The continued correct application of the arm’s length principle to allocate profits based on function, assets and risks will help to ensure that profits are allocated based on where value is created.”  

“We would like to highlight that the focus on countering BEPS should be to grow the economic pie for every country, and not let the work be sidetracked by protectionism and development of rules for political expedience.”

Actions 8-10: Christian Aid & Action Aid’s comments:
“Transfer (mis-)pricing is a significant challenge to developing countries, and improvements to current rules need to take place to ensure developing countries can seek appropriate tax contributions from Transnational Corporations (TNCs).  The best solution may be outside of the arm’s length principle however, something that the OECD appears to not want to consider.  We believe that there should be more comprehensive research done into alternatives to the arm’s length principle and how effective they may be for developing countries.”

Questionnaire:

Countries’ experiences regarding base erosion and profit shifting issues.

Developing countries are invited to provide feedback by answering the following questions. Feedback (and any questions about the feedback requested) should be sent to taxffdoffice@un.org. The deadline for responses is 8 August 2014.

1. How does base erosion and profit shifting affect your country?

2. If you are affected by base erosion and profit shifting, what are the most common practices or structures used in your country or region, and the responses to them?

3. When you consider an MNE’s activity in your country, how do you judge whether the MNE has reported an appropriate amount of profit in your jurisdiction?

4. What main obstacles have you encountered in assessing whether the appropriate amount of profit is reported in your jurisdiction and in ensuring that tax is paid on such profit?

The Subcommittee have identified a number of actions in the Action Plan that impact on taxation in the country where the income is earned (the source country), as opposed to taxation in the country in which the MNE is headquartered (the residence country), or seek to improve transparency between MNEs and revenue authorities as being particularly important to many developing countries (while recognising that there will be particular differences between such countries). These are:  Action 4 – Limit base erosion via interest deductions and other financial payments  Action 6 – Prevent Treaty Abuse  Action 8 – Assure that transfer pricing outcomes are in line with value creation: intangibles  Action 9 – Assure that transfer pricing outcomes are in line with value creation: risks and capital  Action 10 – Assure that transfer pricing outcomes are in line with value creation with reference to other high risk transactions (in particular management fees)  Action 11 – Establish methodologies to collect and analyse data on BEPS and the actions to address it  Action 12 – Require taxpayers to disclose their aggressive tax planning arrangements  Action 13 – Re-examine transfer pricing documentation

5. Do you agree that these are particularly important priorities for developing countries?

6. Which of these OECD’s Action Points do you see as being most important for your country, and do you see that priority changing over time?

7. Are there other Action Points currently in the Action Plan but not listed above that you would include as being most important for developing countries?

8. Having considered the issues outlined in the Action Plan and the proposed approaches to addressing them (including domestic legislation, bilateral treaties and a possible multilateral treaty) do you believe there are other approaches to addressing that practices that might be more effective at the policy or practical levels instead of, or alongside such actions, for your country?

9. Having considered the issues outlined in the Action Plan, are there are other base erosion and profit shifting issues in the broad sense that you consider may deserve consideration by international organisations such as the UN and OECD?

10.Do you want to be kept informed by email on the Subcommittee’s work on base erosion and profit shifting issues for developing countries and related work of the UN Committee of Experts on International Cooperation in Tax Matters?

Do you have any other comments you wish to share with the Subcommittee about base erosion and profit shifting, including your experience of obstacles to assessing and then addressing the issues, as well as lessons learned that may be of wider benefit?

 

The insightful Questionnaire, as well as commentaries received, reflect the continuing conflict re: transfer pricing principles to be applied by developed and developing countries.  Additionally, unilateral requests for BEPS comments by countries also reflect the tendency to adopt OECD principles as adapted to local needs.

As a result, transfer pricing documentation will be inherently more complex and non-standardized, while controversies between tax authorities and multinational corporations will multiply significantly in magnitude and scope.

 

Category:

OECD / UN

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Transfer pricing documentation & BEPS: Refresh strategy

As time is of the essence for various OECD BEPS proposals to be made public, the interim time gap may be an excellent time to refresh global transfer pricing documentation strategies.  Several questions that may be addressed in a transparent and critique perspective include the following:

  • Have each of the BEPS proposals been matched to current TP methodology, questioning the future state of global TP documentation?
  • For current cooperative compliance relationships, is a discussion contemplated / scheduled to discuss the potential impacts of BEPS on the ongoing ways of working, including TP documentation?
  • Are future cooperative compliance relationships in focus, aligned with BEPS initiatives, especially among countries seeking unilateral legislative actions re: General Anti-Avoidance Rules (GAAR) implementation, etc.?
  • Are the attributes of a GAAR, including a taxpayer’s responsibility for GAAR compliance, being considered globally and /or in local country files?
  • Should compliance roles and responsibilities of TP compliance change re: internal / external resources due to BEPS with additional complexities envisioned?
  • If a Master File and Local Country file methodology is not currently in place, will there be a global and/or regional shift to such methodology?  What is the proposed timing for change?
  • Are the local tax return disclosures re: TP aligned with that country’s TP documentation?
  • What tax team / TP resources are being aligned to address the BEPS initiatives and proposed documentation?
  • Are tax policy statements of the Tax Risk Framework being reviewed for desired TP transparency?
  • Have there been “idea” meetings to discuss next steps in a creative atmosphere?

A BEPS / TP review will be valuable in aligning future vision, flexibility and transparency in today’s volatile atmosphere of TP assumptions and perceptions.

 

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Transfer Pricing

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Tax Policy: Interaction of the Main Players & MNE’s

The executive summary of a paper entitled “The Structures and Mandates of Eight International and Regional Organizations That Work on Tax” was published earlier this year by the International Tax and Investment Center (ITIC) with the Vienna University of Economics and Business.  The link to the article is referenced herein:

http://www.iticnet.org/file/document/watch/4008

The executive summary provides valuable insights into tax structures and mandates of various organizations, including the IMF, World Bank and the UN.  The two primary sections are entitled “Who are the Main Players in the International Tax Arena” and “How can Business Interact with Different Groupings?”

The first section includes a description of the breadth of activities for the organizations, including  those of the UN that include transfer pricing, exchange of information, cross border VAT issues, taxes in climate change, financial transaction taxes, tax on foreign direct investment, and natural resource taxation.  The second section is very interesting reading, providing insights into how Multinationals (MNE’s) can proactively interact with the various tax policy making bodies.

The topics of tax policy, and interaction between the MNE’s and the relevant organizations, have evolved into very significant issues in today’s changing tax environment.  Roles in a MNE, and the necessity to proactively interact with such organizations has now become a necessity that will derive mutual benefits and win-win relationships.

 

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Tax Risk Management

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TP disclosure on tax returns: Malaysia

The Malaysian Inland Revenue Board (MIRB) has added a new check box on the 2014 tax return form for corporate taxpayers to declare whether transfer pricing documentation has been prepared.  Contemporaneous documentation should be prepared accordingly (i.e. 7 months from the close of the financial year).  The KPMG Newsletter describing this new initiative is referenced at the following link:

Click to access tp-malaysia-may6-2014.pdf

Re: Best Practices, new transfer pricing boxes / questions on tax returns are becoming a common practice.  Some questions by a multinational to ensure proper governance for tax return transfer pricing disclosures include:

  • What internal governance mechanism is in place to alert the tax dept. timely of new disclosures for proper planning of contemporaneous documentation, etc.?
  • Is the tax return preparer / reviewer knowledgeable about the transfer pricing documentation processes in place to answer the questions accurately?
  • If a transfer pricing question is to be answered negatively (i.e., no documentation exists), is there adequate time to proactively address, as applicable?  Is there any correlative impact for a financial statement tax reserve?
  • For transfer pricing methodology questions, who ensures the proper methods are accurately disclosed?
  • Is there a pre-audit strategy, upon notification, to review tax return disclosures?
  • Is there a documented process in the global tax risk framework that alerts the tax dept. of new disclosures?

These questions, among others, should be discussed to ensure internal and external alignment in a corporation’s tax risk policy.

 

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Transfer Pricing

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