In recent years, tax authorities across the globe have adopted a number of OECD-led initiatives aimed at curbing the ability of multinational enterprises to engage in so-called Base Erosion and Profit Shifting (BEPS) (i.e., the artificial shifting of profits, for tax purposes, to low or no-tax jurisdictions). The OECD has achieved considerable buy-in from tax authorities, touting the need to update the international tax rules, which have (it maintains) largely failed to keep up with the dual phenomena of globalization and increasingly digital economies. Country-by-country (CbC) reporting has played a key role in its effort.
U.S. Treasury regulations require that U.S. multinational enterprises (MNEs) provide country-by-country (CbC) reporting. Annual CbC reporting on Form 8975 largely implements the OECD’ country-by-country reporting requirements aimed at addressing base erosion and profit shifting.
What is Country-by-Country (CbC) reporting?
On February 4, 2022, the Organization for Economic Cooperation and Development (“OECD”) issued model rules for nexus and revenue sourcing under Pillar One of the international tax agreement (the so-called “two-pillar solution”) signed last year by 137 countries, including the United States. As explained previously, Pillar One would allocate taxing rights over 25% of the residual profit of the most profitable MNEs to the countries where goods or services are used or consumed. The OECD anticipates that countries that are parties to the two-pillar solution will enact laws substantially similar to the model rules, while taking into account various requirements peculiar to their constitutional and legal systems.
The model rules would require that each transaction be categorized according to its “ordinary or predominant character,” based on the transaction’s substance rather than its legal form. The categories anticipated by the model rules include revenues from the sale of:
In February 2019 the OECD released a public consultation document draft titled “Addressing the Tax Challenges of the Digitalisation of the Economy”. The draft notes that back in 2015 the 2015 BEPS Action 1 Report on Addressing the Tax Challenges of the Digital Economy initially cited the challenges for international taxation which stemmed from the digital economy and that much of this consultation draft was to address these issues. It is in the February 2019 document in which the two pillar approach for addressing the digital economy was first introduced.
Pillar One focuses on the allocation of taxing rights and considers profit allocation and nexus rules. At this time three proposals for Pillar One were discussed:
1. User participation proposal: The proposal would modify current profit allocation rules to allocate profit based on where businesses’ active and participatory user bases are located, irrespective of whether those businesses have a local physical presence. The proposal notes that user participation is highly relevant for social media platforms, search engines and online marketplaces.
2. Marketing Intangible Proposal: This proposal would segment profit based on marketing intangibles in market jurisdictions. Marketing intangibles are defined as intangibles that aid in the commercial exploitation of a product or service and/or have an important promotional value for the product concerned. Some marketing intangibles it lists are brand, trade name, customer data, customer relationships and customer lists.
On February 11, 2020, the OECD issued its final Transfer Pricing Guidance on Financial Transactions in a 46 page document which the OECD widely disseminated and which can be found on the OECD website. The report builds on the discussion contained in the non-consensus Discussion Draft on Financial Transactions published in July 2018 (“2018 Discussion Draft”). As the guidance is final, it will likely be heavily relied upon by many tax authorities when scrutinizing financial transactions.
The guidance contains five sections:
1. Interaction With Guidance In Section D.1 of Chapter 1
2. Treasury function
3. Financial Guarantees
4. Captive Insurance
5. Risk-Free And Risk-Adjusted Rates of Return
The Platform for Collaboration on Tax – a joint initiative of the IMF, OECD, UN and World Bank Group – has undertaken, at the request of the G20, the development of a series of “toolkit” reports to help guide developing countries in the implementation of policy options for issues in international taxation of greatest relevance to these countries. One such issue identified by developing countries themselves is the taxation of offshore indirect transfers of assets. Though an important area of international tax policy, no unifying principle has been adopted by individual countries on how to treat these transactions. This issue is, though, addressed in both main double taxation model treaties, of the OECD and the UN. Countries now follow very different approaches in their domestic law—and many treaties now in effect do not include the relevant model treaty provisions.
Ministers and senior officials from Kazakhstan, Peru and the United Arab Emirates have signed the BEPS Multilateral Convention bringing the total number of signatories to 79 and the number of covered jurisdictions to 81. This Convention updates the existing network of bilateral tax treaties and reduces opportunities for tax avoidance by multinational enterprises. Estonia intends to sign the MLI on 29 June. The signatures this week come a few days before the Convention enters into force on 1 July 2018 for five of the jurisdictions that signed last year.
The Convention is the first multilateral treaty of its kind, allowing jurisdictions to integrate results from the OECD/G20 BEPS Project into their existing networks of bilateral tax treaties. The OECD/G20 BEPS Project delivers solutions for governments to close the gaps in existing international rules that allow corporate profits to “disappear” or be artificially shifted to low or no tax environments, where companies have little or no economic activity.
Under the mandate of the Report on Actions 8-10 of the BEPS Action Plan (“Aligning Transfer Pricing Outcomes with Value Creation”), Working Party No. 6 (“WP6”) has produced a non-consensus discussion draft on financial transactions.
The first part of the discussion draft provides guidance on the application of the principles contained in Section D.1 of Chapter I of the Transfer Pricing Guidelines to financial transactions.
In particular, Section B.1 of the discussion draft elaborates on how
the accurate delineation analysis under Chapter I applies to the capital structure of an MNE within an MNE group. The discussion draft clarifies that the guidance included in this section does not prevent countries from implementing approaches to address capital
structure and interest deductibility under their domestic legislation. Section B.2 outlines the economically relevant characteristics that inform the analysis of the terms and conditions of financial transactions.
The second part of the discussion draft, contained in sections C, D and E, addresses specific issues related to the pricing of financial transactions such as treasury function, intra-group loans, cash pooling, hedging, guarantees and captive insurance.The discussion draft also includes a number of questions to commentators on which inputs from stakeholders will be particularly relevant to WP6 to further its work and prepare another discussion draft after considering the input received.
Fair Tax Competition: The country should not have harmful tax regimes, which go against the principles of the EU’s Code of Conduct or OECD’s Forum on Harmful Tax Practices. Those that choose to have no or zero-rate corporate taxation should ensure that this does not encourage artificial offshore structures without real economic activity. In the context of the screening process, the Code of Conduct Group invited each jurisdiction where concerns were identified to commit to address such concerns. The large majority of jurisdictions have decided to introduce the relevant changes in their tax legislation in order to comply with the EU screening criteria. The following jurisdictions are committed to addressing the concerns relating to economic substance by 2018: Bermuda; Cayman Islands; Guernsey; Isle of Man; Jersey; and Vanuatu.
More than 200 global tax and economic crime experts have identified key areas for international action following the fifth OECD Forum on Tax and Crime, in London. In a week dominated by media coverage of offshore issues, the Forum brought experts on tax, customs, anti-corruption, anti-money laundering, policing, and prosecution together to agree priorities for action.
The Forum is the latest in a series of OECD-led events and an important opportunity for the international community to strengthen collaboration in tackling these global issues.
Claudia María Amelia Teresa Cooper Fort, Minister of Economy and Finance of Peru, signed the Multilateral Convention on Mutual Administrative Assistance in Tax Matters in the presence of the Deputy Director of the OECD’s Centre for Tax Policy and Administration, Grace Perez-Navarro.
Mahess Rawoteea of the Ministry of Finance and Economic Development of Mauritius, signed the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (the MLI) in the presence of Douglas Frantz, OECD Deputy Secretary-General.
Based on expressed reservations at this point in time, 23 tax treaties would be impacted by this signing. Read More