Combating BEPS and making sure we have fair tax systems: An OECD/G20 Venture
Last weekend, the OECD presented its first BEPS recommendations to the G20 for an international approach to put an end to so-called “stateless income”. Seven “Actions” are being proposed, as part of a 15-point plan.
Ensure the coherence of corporate income taxation at the international level, through new model tax and treaty provisions to neutralise hybrid mismatch arrangements (Action 2).
The basic idea behind hybrids is to have the same entity or transaction treated differently by different countries to avoid paying tax. A typical hybrid instrument would allow a company to treat something as debt in one country and equity in another. Hybrid transfers are arrangements that are treated as transfer of ownership of an asset in one country but as a loan with collateral in another. By playing off one country’s tax system against another, like children sometimes do with their parents when they try to get what they want, the most successful hybrids achieve double non-taxation – the company doesn’t pay tax anywhere.
Realign taxation and relevant substance to restore the intended benefits of international standards and to prevent the abuse of tax treaties (Action 6).
“Treaty shopping” is the most common form of treaty abuse. It generally refers to arrangements through which a person who is not a resident of one of the two States that concluded a tax treaty attempts to obtain benefits that the treaty grants to residents of these States. How? By setting up a shell company in one of the treaty States and routing investments through it. OECD and G20 countries have all agreed to reject treaty-shopping practices. Proposed drafts of a specific anti-abuse rule based on a “limitation-on-benefits” provision and a more general anti-abuse rule based on a “principal purpose test” have been unveiled to ensure that only “true” residents get the benefits of the treaty.
Assure that transfer pricing outcomes are in line with value creation, through actions to address transfer pricing issues in the key area of intangibles (Action 8).
Most world trade actually takes place within multinational enterprises, for example the headquarters in Germany paying a subsidiary in India to carry out research or manufacture components. This payment has to be at arm’s length to ensure that profits (or losses) are allocated among the different parts of the group in a fair and sound manner. How to apply the arm’s length principle in practice is detailed in the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations. Easy in many cases, it may get extremely difficult, and subject to manipulation, when we are talking about intangibles, like famous brands, patents, algorithms or the like. Estimates of annual investment in intangibles in the United States alone are between $800 billion and $1 trillion, with a stock of intangibles of up to $5 trillion. Now, new guidance has been developed to align the transfer pricing rules with modern business.
Improve transparency for tax administrations and increase certainty and predictability for taxpayers through improved transfer pricing documentation and a template for country-by-country reporting (Action 13).
Countries have agreed that companies should report on a country-by-country basis certain key information, such as assets, sales and number of employees. This will provided tax administrations with a broad picture of the group structure and where profits are made and allocated for tax purposes. The focus can then be on those that engage in aggressive tax planning that separates the location where profits are made from where they are reported for tax purposes.
Address the challenges of the digital economy (Action 1).
The digital economy does not generate unique BEPS issues, but some of its features can exacerbate BEPS risks, such as the importance of intangibles, the mobility of users, network effects and multi-sided business models. (If you thought certain things, like an e-mail address, an app, a videogame, an Internet search, were “free”, look at how much money Internet advertising generates). It’s hard to say where certain activities or assets “are” for tax (and other) purposes. Depending on how you look at it, it could be on the computer of the user watching an ad, the firm paying for that ad, the server streaming it, the head office of the owner itself… Or take an off-line delivery service (pick your favourite): despite its considerable sales in a country like France, in theory, its French operation is only a delivery company processing orders for a firm based in (pick your favourite again). This ability to centralise infrastructure at a distance from the market and sell into that market from a remote location, generates potential opportunities to achieve BEPS. It does so by fragmenting physical operations to avoid taxation, especially when combined with the increasing ability to conduct substantial activity with very few personnel. One year from now, an agreement will be reached so that this will not be possible anymore.
Facilitate swift implementation of the BEPS actions through a report on the feasibility of developing a multilateral instrument to amend bilateral tax treaties (Action 15).
Even in the old economy, governments took steps to ensure that international taxation didn’t harm firms operating across borders. Many domestic and international rules to address double taxation of individuals and companies originated from principles developed by the League of Nations in the 1920s. The OECD has been working for years to help tax administrations and policy makers cooperate across borders. The OECD Model Tax Convention serves as the basis for the negotiation, application, and interpretation of over 3000 bilateral tax treaties in force around the world. Its Commentaries have been cited by courts in virtually every OECD member country, as well as in many non-OECD countries. Now change is coming in several key areas. But without a mechanism for swift implementation, changes to model tax conventions will only widen the gap between these models and the content of actual tax treaties. Such an implementation mechanism does exist, and it is a multilateral instrument. Difficult? Yes, but it is feasible, and developing it is necessary not only to tackle BEPS, but also to ensure the sustainability of the consensual framework to eliminate double taxation. So not only feasible, also desirable (at least by those like us who think change is needed).
Counter harmful tax practices (Action 5).
The OECD published a report on Harmful Tax Competition: An Emerging Global Issue in 1998, but 15 years later, concerns about the “race to the bottom” on the mobile tax base are as relevant as ever. The focus has shifted though. In 1998 a major concern was regimes partially or fully isolated from the domestic economy (“ring-fencing”). For example, this could take the form of giving firms resident status to avoid paying taxes in another country, but not allowing them access to local markets where they would compete with national firms. Today, across the board corporate tax rate reductions on particular types of income are of growing concern. To counter harmful tax practices more effectively, Action 5 commits the Forum on Harmful Tax Practices (FHTP) to revamp the work on harmful tax practices. Priority has been given to improving transparency, with the obligation to exchange information on rulings related to preferential regimes. The focus is now on requiring substantial activity for any preferential regime with a special focus on the “patent boxes” which are mushrooming these days. – regimes that subject certain IP income to a preferential rate of tax. Going further, the work will engage with non-OECD members on the basis of the existing framework and consider revisions or additions to the existing framework.
You can contact the BEPS team at CTP.BEPS at oecd.org (replace ” at ” by @)
Pascal Saint Amans on fighting tax avoidance by multinationals