Wednesday, 2 April 2014

OECD and tax avoidance: the story so far ...

In a webcast from Paris this afternoon, the OECD updated the world on progress on the BEPS project to date. Pascal Saint-Amans stressed the process was on track to be presented to finance ministers in September 2014. Four discussion drafts have been issued over recent months, covering country-by-country reporting, the abuse of the international network of tax treaties, the rather more technical question of hybrid mismatches, and more broadly the challenges posed by the digital economy.  This article summarises where the OECD is on each of these four areas, and then makes some general observations on the process. 

The Digital Economy
The current thinking here, sensibly, is that it is neither possible nor useful to ring-fence the digital economy. Everything is digital now. So what the draft does is focus on the key features which warrant attention from a tax point of view. These are mobility of assets, customers, employers; the way new business models rely on data, sometimes very large banks of personal data; the multi-faceted nature of these new business models with value being created by customers as well as by vendors; and network effects in general.

So the working group will focus on questions such as how to restore source and residence taxation in this new context. How can value be attributed to data, given that it is created by a wide network of individuals? How can cloud-based storage be attributed to a single or even to multiple jurisdictions? What about consumption taxes?

These are complex questions. Taking just that last one as an example, VAT has traditionally been imposed in a particular jurisdiction based on the concept of place of supply;  if I sell you a car, for example, it is not difficult to decide where that transaction takes place. If, on the other hand, I download music produced by some Californian indie band from the cloud, to an ipad, while transiting through Manchester airport, where is that sale made? Do we look at where the customers are located? Where the service providers are headquartered?  Where the company making the sale says its sales force are? Each of these methods would give a very different tax outcome, with fairly profound implications for both companies and countries. 

Hybrid mismatches
This is a more technical area, fascinating to tax planners and tax nerds generally, almost certainly less so to the general public. It refers to any arrangement that exploits the different tax treatment in different jurisdictions of the same instrument, so for instance a financing instrument that obtains a tax deduction in one place, but is tax free in another. 

Achim Pross clarified some important issues of scope; the OECD are not looking at mismatches between tax and law, for instance, only at international tax mismatches. They are seeking rules wich are clear and easy to apply ,and which can be easily or automatically imported into domestic law without the need for taxing authorities to form a judgement about intent .  They want the new rules to be comprehensive – there is no  point in closing down one type of abuse only to let it open elsewhere in a slightly different guise. The mechanism they will probably apply is to neutralise the tax mismatch without disturbing the regulatory consequences, so the tax treatment in one state will be based on the tax treatment in the other, restoring the symmetry to the international situation that would have applied had the transaction been domestic. This raises the implementation question of which country’s rules to adapt? Whether to apply this only to group transactions or also to parties acting in concert and structured arrangements more generally? How to deal with accidental hybrid instruments? It is clear that widely-traded financial instruments which are hybrid in some way will probably be outside the scope, but there are lots of questions still to be addressed on this one. 

Tax Treaty Abuse
This is a big one, and has generated a great deal of public comment already on the discussion draft issued last month. The approach is interesting. First the purpose of treaties is established, and in particular the fact that they are intended to be bilateral, and not to create conduits. Next there are specific anti-abuse rules being developed such as tie-breaker rules on dual-residence companies, and minimum holding periods for dividend transfers. Finally, they are talking about a general provision, more or less like an anti-avoidance rule, which denies treaty benefits if the main purpose of the transaction is to obtain the treaty benefits, AND the obtaining of the benefits is contrary to the purpose of the treaty. 

This is potentially a game-changer, depending on how widely the new general provision might be applied. 

Transfer pricing and country by country reporting
Here is where things slow down a little. On transfer pricing, the OECD remain firmly committed to the principle of arms-length pricing, despite protests from many groups such as the tax justice network. Similarly on country by country reporting, the latest changes seem to limit the recommendations to high-level reporting on a country level rather than on a company level, and only to taxing authorities rather than to the general public. It is likely that companies will only need to report income, profit, tax paid and accrued in each country as well as details on the numbers of employees, tangible assets and retained earnings/capital. 

Overall points
The emphasis is on saving the system, not rebuilding it. In particular, the arms-length principle remains a staple of the current thinking. In answer to a question at the end, Pascal Saint-Amans said “So let’s fix the existing system. Which will allow us to save the arms-length principle, which will provide the certainty that countries and companies need.” 

Developing countries have other concerns on international tax, especially about commodity mispricing and tax incentives, which are less reflected in the current work programme of BEPS. The OECD have had a series of regional  consultations with developing countries, and have promised to take their views into consideration. 

BEPS is not all-embracing. For instance, a question from an Australian journalist revealed that aggressive tax planning based on after-tax hedging, is not currently under scrutiny. However, for particular structures, such as the infamous Double Irish, the writing is clearly on the wall. Asked specifically about that structure, Pascal Saint-Amans said that yes, they expect and encourage the ending of the Double Irish, and that for companies to anticipate such changes and adapt their actions in advance of proposed changes “”would be a smart move”

So change continues, with some measures such as country by country becoming more conservative, and others such as the treaty abuse measures holding out real possibility of reform. They promise more webcasts, so watch this space. 

Dr Sheila Killian

No comments: