Friday, 19 July 2013

A new world order in corporate tax?

The long-awaited OECD Action Plan on Base Erosion and Profit-Shifting (BEPS) has been released this morning, in time for the G20 meeting in Moscow. This was promised back in February, and aims to tackled multinational corporate tax avoidance through a unified approach by the world’s most powerful economies. For background on the issue of corporate tax avoidance and why it matters, see my earlier post here, and for a summary of the OECD’s earlier missive which gives their logic for tackling it, see here

This topic was top of the agenda at the Lough Erne G20 meeting, and so this report, which sets out what the OECD plan to do and how, has been eagerly awaited. So what are the highlights? Is it, in fact, a new world order on corporate taxation? Well, before getting into the detail of the actions, here are five observations on the plan as a whole:      

     1.  Politics: As OECD’s Pascal Saint-Amans said at the launch, what we have here is not only technical, it is highly political. The plan now has the support not only of the 34 OECD countries of which Ireland is one, but also of the entire G20, including the eight countries which are outside of the OECD (South Africa, Russia, China, India, Indonesia, Argentina, Brazil, and Saudi Arabia). The combined block represents considerable power, both economic and political, all of which lends strength to the proposals

    2.  Timing: All the actions in this plan have short time-lines for implementation – one to two years, with a few of the deadlines bleeding out to December 2015. The reason for this is two-fold; the OECD want to seize the initiative to create something unified here while there is widespread political consensus on the need to tackle corporate tax avoidance, and secondly, they want to come up with an international response quickly before impatient politicians in the individual countries develop their own independent strategies, which might not be coherent. 

    3.  Absence of scapegoats: Unlike OECD actions in the 1990s, there is little emphasis on rogue regimes, tax havens or even very much on tax competition. This is a working document, aimed to provide solutions by neutralising tax avoidance schemes, rather than naming and shaming countries
    4. A top-down, multi-lateral approach: Cleverly, although the individual taskforces will come up with different recommendations under the various headings, all of these will be incorporated into a single, multilateral tax treaty by the end of the process. The (ambitious) aim is that this will then be adopted by most if not all of the countries involved, effectively replacing the current network of 3,000+ tax treaties which have been painstakingly negotiated on a bilateral basis over decades. This network is used with shocking ease by multinational firms to whisk profit in and out of various jurisdictions, exploiting minute differences to avoid billions of taxation, worldwide. If the multilateral treaty is widely adopted, and contains measures to close down some of the more egregious practices, this will mean a real change in the environment.

    5.  Limited innovation: There is a lot here that is new, but apart from the promised multi-lateral treaty, there is no radical change in the architecture of international tax. Some of what's new is essentially new to the OECD. We will have standards on information gathering, and moves to spontaneous, automatic exchange of information between taxing authorities; we will have action on residence, and on mis-match schemes including the Double Irish. There is country-by-country reporting, but not publicly. And there is no radical action on how multinational firms are taxed – no move to a single tax base, for instance; to unitary taxation; no move away from the arms-length as standard for transfer pricing. A large part of this is almost certainly political – what’s here is perhaps as much as they feel is achievable given the expanded group of countries they are now addressing with this plan. Not exactly a new world order - no central government, but a serious change nonetheless.

So what is the detail?
The plan contains fifteen separate but interlocking actions, each of which is assigned a taskforce. Two address the over-arching themes of the digital economy and the development of the multi-lateral instrument, while the central thirteen can be loosely arranged under the headings of gaps, frictions and transparency, OECD-speak for double non-taxation, double-taxation and secrecy. 

Gaps: four taskforces operate under the theme or pillar of gaps, addressing hybrid mismatches, of which more here, Controlled Foreign Company (CFC) rules, interest deductibility and harmful tax practices with a dishonourable mention here for patent box legislation. These taskforces are looking at coherence, tackling any instruments or rules which are interpreted in one way by one country, and another by a different one, leaving a little gap which can be exploited by a multinational firm. A simple example is the use of convertible shares to finance a subsidiary. In some circumstances, the profit returned to the parent company can be treated as (tax-deductible) interest when paid by the subsidiary, but as (tax-free) dividends when received by the parent – an obvious opportunity to gain a tax advantage while moving profits. However, at the launch of the report Pascal Saint-Amans specifically referred under this section to Ireland, the Netherlands, and the US check-the-box rules, so we can expect this taskforce to also address the now-infamous Double Irish (of which more here). 

Under frictions the OECD is on more familiar ground – they are aiming to restore the effectiveness of existing standards, and so taskforces here will look at countering tax treaty abuse (of which more here), and tightening up the rules on permanent establishments, possibly with an eye on making it impossible for companies to be entirely stateless. Three taskforces will look at transfer pricing, specifically examining ways to make the arms-length standard effective for intangibles, for the transfer of risk and capital and to address the greyer-than-grey area of management fees and other such payments. What’s interesting in this cluster is that these actions look to reinforce and tidy up existing ways of doing business rather than taking a radical approach, such as unitary taxation or even the type of apportionment of taxing rights envisaged by the European Commission with the Common Consolidated Corporate Tax Base (CCCTB). 

Finally, under transparency, four taskforces will look at the mechanics of gathering data which can be exchanged between taxing authorities. This is no easy task, and involves issues of data protection, IT compatibility, a common template for reporting, etc. Companies will be obliged to report more on their aggressive tax plans, but not publicly, not yet. There will be more mutual assistance among taxing authorities, and common approaches to dispute resolution, etc. 

When will we see change? 
Some of the taskforces will report in a year, and the new standard is slated for the end of 2015. As every finance student knows, however, the market anticipates change, and so as soon as this has been absorbed by the tax planners, we can expect to see a change in tax plans, and a knock-on impact on how investments are structured and how and where groups of companies are arranged. Climate change doesn’t happen overnight, but still it happens, and has real and present impact. 

How solid is the support for this?
Pascal Saint-Amans insists there is extremely solid and widespread support for these measures, even beyond the OECD and G20. He acknowledges that some large firms should end up paying more tax if his plan works, and so some in the business community may be less than thrilled. Interestingly, while they are invited to submit observations, they are not a formal part of any of the taskforces. Nevertheless, he explains that while some countries or companies will protest publicly, they accede privately, and will support the measures once they are developed. Or as he put it: “the conversation in the room and the conversation in the corridor are not the same.” It should not take long to see which conversation carries the most weight. 

Sheila Killian

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