The BEPS Action Plan: A story of the turtle and the hare?

Monique van Herksen, Ernst & Young in The Netherlands  


Monique van Herksen is a partner


The story of the turtle (or tortoise) and the hare is originally one of Aesop's fables1 and has been retold in several versions since. At times it even includes other animals. Most versions come down to the essentials that a turtle and a hare enter into an agreement to race to a certain point in the distance. Whoever reaches that point first wins. In the original version, the hare rushes off and leaves the turtle far behind him. So much so that, confident in winning, the hare decides to take a nap midway the course. The turtle stoically keeps on going and when the hare awakes, he finds the turtle has won. In other versions, the turtle (or another animal such as a snail, or ant) calls upon family members to position themselves midway the route. The hare, not able to distinguish between the respective family members and his original competitor, thinks he needs to speed up more to stay ahead. He finally runs himself to death and the turtle is declared the winner.

l. Introduction

On July 19, 2013, the OECD released the Action Plan on Base Erosion and Profit Shifting, produced for the G20 Finance Ministers' meeting held in Moscow on July 20, 2013. The Action Plan follows from the February 2013 OECD report addressing Base Erosion and Profit Shifting. The BEPS initiative is a response by the OECD to “the G20 countries (the world's most advanced economies plus some large emerging markets) [which] asked the OECD to draw up proposals to reform the current patchwork of rules and tax treaties, which big business can easily game.”2 The action plan sets forth several agenda items that are to be addressed within the next two and a half years and which should serve to bring reform that will safeguard (international) tax revenues, tax sovereignty and tax fairness. This, in the world of (international) tax, is a highly ambitious goal to be achieved at nothing short of lightening speed.

The urgency of the BEPS report is understandable when put in the perspective of the growth of the BRIC countries in the 1990s and 2000s and their position today. Not only did these economies expand enormously during those years but they are seen as continuing to show growth in the future (albeit at a far much more modest pace than before). The Economist reports that 2013 will be the first year in which emerging markets account for more than half of the world GDP on the basis of purchasing power, according to the International Monetary Fund.3 Bigger economies mean more economic importance for these economies. This in turn leads to increasing political power for the countries that make up these economies and also extends to their regulatory and taxing power. Thus, when the Indian and Chinese taxing authorities expressed that global taxable income of multinational enterprises (MNEs) doing business in their countries is not allocated fairly, that had quite some impact. One could say that the UN's Practical Manual on Transfer Pricing for Developing Countries provided a platform to highlight developing country specific issues in transfer pricing and - largely unintended - also provided an opportunity for countries to highlight country specific concerns and taxation approaches that differ from those currently laid out in the OECD Transfer Pricing Guidelines.4 If the emerging economies issue unilateral rules and regulations on how to tax MNE income that deviate from the traditional and commonly followed international rules, this leads to investment uncertainty and double taxation. If such is persistent, it can trigger political retaliation and international disputes, none of which the world leaders are looking for. However, to assume that the rise of the BRICs and their influence is the main reason for the BEPS initiative ignores the general discontent that can be observed in several countries, from both governments and citizens, as to who is subject to tax and who is not. The Occupy movement that started in the fall of 2011 and the UK Public Accounts Committee hearings of January 2013 foreshadowed a turn-of-the-century change in morality. To prevent further escalation, the G20 rushed to the scene and instructed the OECD to take immediate action.5

ll. BEPS issues and action items

The fifteen action items listed in the action plan can be informally grouped in ten technical action items, three transparency-related action items, one controversy-related action item and one implementation-related item. But more importantly, in light of what is at stake, speed is of the essence and the Action Plan places the respective actions that are identified as necessary in three buckets: those to be addressed as soon as possible, i.e. within 12-18 months, those to be delivered in two-years time and those that may take more than two years. Following, the action items are discussed in more detail.

A. Technical action items
1. The digital economy

This issue is identified as action item 1 in the Action Plan. Multinational enterprises that are in the business of rendering services and making products want to make sure they tap into the available demand for consumer goods and services. This demand is more and more to be found in the BRIC markets. New technology, like the internet and digital commerce, allows for global market reach with relatively limited global investments.6 According to the Action Plan, making use of the digital economy means increased reliance on intangible assets, use of (personal/customer) data and of multi-sided businesses. However, under the current (international) tax (and treaty) rules, income resulting from trade conducted via the digital economy may very well not be taxable in the jurisdiction where the end-consumer of the services or products is located. This is seen as a major challenge to global adherence to international taxation rules, and is included in the most urgent bucket, to be addressed/resolved within 12-18 months, or as early as by September 2014.

The following action items are identified with respect to the digital economy:

• The ability of a company to have a significant digital presence in the economy of another country without being liable to taxation due to the lack of nexus under current international rules ought to be addressed;

• The attribution of value created from the generation of marketable location-relevant data through the use of digital products and services ought to be considered;

• The characterisation of income derived from new business models needs to be determined;

• The application of related source rules needs to be considered; and

• It needs to be determined how to ensure effective collection of VAT/GST with respect to the cross-border supply of digital goods and services.

 

2. Hybrid mismatch arrangements

This issue is identified as action item 2 in the Action Plan. According to the BEPS Report, in order to maintain an internationally coherent system of corporate income taxation, hybrid mismatches and instruments that are based on tax arbitrage ought to be terminated. Hybrid mismatches tend to be based on different interpretations under the domestic laws of different jurisdictions of the respective instrument characteristics (for example such as loans or leases) together with a general lack of transparency as regards how these instruments are treated in other jurisdictions. If a loan has conditions where interest payments are dependent on the debtor's profitability and the issuer of the loan is only eligible to be repaid the principal amount after any other creditors have been paid, the loan instrument has characteristics that resemble stock or a capital contribution. That may mean that the interest payments may be deductible in the country of the debtor/payor yet treated as dividend distribution at the level of the creditor. Making use of look-though entities also can achieve this type of result. The use of hybrid mismatch arrangements is seen as a major challenge to global adherence to international taxation rules and also included in the most urgent bucket, to be addressed by September 2014.

The Action Plan identifies the following action items to neutralise the effect of hybrid mismatch arrangements:

• Changes to the OECD Model Convention;

• Domestic law provisions that prevent exemption or non-recognition;

• Domestic law provisions that deny a deduction for a payment that is not includible in taxable income of the recipient;

• Domestic law provisions that deny a deduction for a payment that is also deductible elsewhere; and

• Guidance on co-ordination or tie-breaker rules.

 

Considering that many companies currently may have some of such arrangements in place, this action item is one that may have significant impact once addressed in domestic law or covered by an amended treaty or new protocol. In order for companies to prepare for this change and adhere to new rules, it will be important that they identify qualifying arrangements within their group of companies urgently. To the extent deemed necessary they may wish to terminate them according to the applicable contractual termination clauses and determine how these transactions are to be structured thereafter, or at the very least determine the tax costs of the transactions going forward, after the new domestic or international rules are put in place.

3. Strengthening CFC rules

This issue is identified as action item 3 in the Action Plan. Routing income through non-resident affiliated entities may assist to defer or avoid taxation of that income at the level of the parent company. In particular when income is not repatriated and remains abroad perpetually. The main way to address this practice is seen as strengthening (or where not yet available, creating) CFC rules, so that income is included in the residence country of the ultimate parent company currently. The need to strengthen CFC rules is included in the second bucket, to be addressed by September 2015.

4. Limiting base erosion via interest deductions

This issue is identified as action item 4 in the Action Plan. Another practice that is identified as contributing to base erosion is deducting interest payments in a jurisdiction with a related enterprise against a high tax rate and receiving the interest income in a jurisdiction with a related enterprise against a low tax rate. Along the same lines is the pattern where debt is being used to generate tax deferred income, thus creating tax deductible payments without generating (currently) taxable income. Intercompany financing arrangements are explicitly targeted by this action item. Guarantee fees and captive insurance structures are included under this heading as well. In sum, rules regarding the deductibility of interest should take into account that the related interest income may not be fully taxed or that the underlying debt may be used to inappropriately reduce the earnings base of the issuer or serve to finance deferred or exempt income. As such, it is to be expected that new rules will try to achieve that deductibility should be restricted or at least be matched with the treatment of the related income. The quest to limit base erosion via financial payments is also included in the second bucket, to be addressed by September/December 2015.

5. Countering harmful tax practices via transparency and substance

This issue is identified as action item 5 in the Action Plan. Without actually identifying harmful tax practices or defining it further, the Action Plan identifies the following action items to be taken up by the Forum on Harmful Tax Practices (FHTP), to neutralise the effect of harmful tax practices:

• compulsory spontaneous exchange of rulings related to preferential regimes, and

• requiring substantial activity for any preferential regime

 

Reference is made to the “race to the bottom” where mobile income will eventually find itself subject to a low or zero percent tax rate, which is identified as the source of this action item. The real issue to be addressed here may actually be the supply of preferential regimes by governments that desperately wish to attract these particular income streams, however. Taxpayers that are able to move or restructure income streams are likely to continue to do so to locations where they are treated preferentially, i.e. where there is low or no tax, if that fits their business model. Therefore, this action item, emphasising the substance of functions and activities and the transparency of tax treatment granted to the functions and activities, should probably be more focused on governments than on taxpayers. Spontaneous exchange of rulings including preferential regimes are mentioned as one example of how to address this issue. However, one can question what interest a country offering a preferential tax regime would have in rushing to disclose related rulings to treaty partners. In any case those rulings should serve as interpretations of domestic law and in the worst case, any income that is taxed at a lower rate in their country could subsequently be subjected to tax in the treaty partner country. This outcome would entirely defeat the initial purpose for granting the preferential regime to begin with. This action items appears partly included in the first and partly in the second bucket, to be addressed ultimately by September/December 2015.

6. Treaty abuse

This issue is identified as action item 6 in the Action Plan. The interposition of so-called conduit entities in a chain of transactions just to obtain treaty benefits appears to be at the base of this action item. Although limitation of benefit (LOB) clauses already exist and serve to address this practice, apparently more is needed. The action plan references the need for tight treaty anti-abuse clauses coupled with the exercise of taxing rights under domestic laws to improve source taxation. This issue has been in the forefront of the debate as regards developing countries. Are treaties being used to the detriment of developing countries? Quite recently, Mongolia terminated its treaty for avoidance of double taxation with The Netherlands, reportedly because the treaty allowed foreign investors to get more favourable tax treatment than if they would have invested in Mongolia directly.7 The Netherlands-Mongolia treaty allowed dividend distributions at a zero percent withholding rate from Mongolia to The Netherlands. There is a long technical and clear explanation available why the treaty did not necessarily contribute to treaty abuse to the detriment of Mongolia, including advice from the IMF on how Mongolia's concerns could be addressed. Unfortunately the allegation in general is persistent, however, and resurfaces repeatedly also fuelled by reports from nongovernmental organisations. For the record, The Netherlands is certainly not the only country cited in this respect, but due to the fact that many multinational enterprises have holding or intermediary companies located in The Netherlands, it is often mentioned. Treaty abuse is identified as the most important source of BEPS concerns and is included in the most urgent bucket, to be addressed by September 2014.

7. Avoidance of PE status

This issue is identified as action item 7 in the Action Plan. Function restructurings are identified as artificial and responsible for loss of jurisdiction to tax in the Action Plan. Reference is made to situations where distributors are restructured into commissionaires or where functions are broken up to specifically meet definitions that exclude permanent establishment characterisation.,. This action plan item is likely to focus on revoking some (formal) exceptions to the permanent establishment characterisation if not amplify (informal) assumptions that a PE exists, and as such, absent a clear effective date, are likely to create a lot of uncertainty for MNEs in the near future. The need to alter and broaden the PE definition is included in the second bucket, to be addressed by September 2015.

8. Transfer pricing-related issues

This issue is identified as action items 8, 9 and 10 in the Action Plan. As transfer pricing rules determine the arm's length income allocation to associated enterprises, their possible use to allocate income away from certain jurisdictions is scrutinised. In particular, income allocation to the respective gradients of functions, risks and responsibilities are to be scrutinised, as this practice is highlighted as being used in particular to shift income into low-tax jurisdictions. The Action Plan explicitly mentions:

i. the transfer of intangibles for less than full value (which seems mostly a valuation/calculation issue);

ii. over-capitalisation of low-taxed group entities (which would appear to not be in scope of the OECD Transfer Pricing Guidelines as currently in place); and

iii. contractual allocations of risk to low tax environments in transactions unlikely to occur between unrelated parties (the OECD Guidelines currently indicate in paragraph 1.11 that such transactions may not necessarily be motivated by tax avoidance and also that the mere fact that a transaction may not be found between independent parties does not of itself mean that it is not arm's length) as contributing to BEPS.

 

If the Action Plan executes on these issues, it would appear that there are some major changes pending, which also very much accommodate if not endorse the current thinking of some of the BRIC jurisdictions. However, the Action Plan indicates than rather than implementing a new system, it seems better to address the flaws in the current system for intangible assets, risk and over-capitalisation.

The Action Plan identifies the following steps:

• Develop rules to prevent BEPS by moving intangibles among group members, by

• adopting a broad an clearly delineated definition of intangibles;

• ensuring that profits associated with the transfer and use of intangibles are appropriately allocated in accordance with (rather than divorced from) value creation;

• developing transfer pricing rules or special measures for transfers of hard-to value intangibles;

• updating the guidance on cost contribution arrangements.

• Develop rules to prevent BEPS by transferring risks among or allocating excessive capital to group members. This will involve:

• adopting transfer pricing rules to keep returns from accruing (inappropriately) to an entity that has contractually assumed risk and provided capital, or

• adopting (additional?) special measures to keep returns from accruing (inappropriately) to an entity that has contractually assumed risk and provided capital;

• alignment of returns with value creation;

• co-ordination with work on interest expenses deductions and other financial payments.

• Develop rules to prevent BEPS by engaging in transactions which would not or only very rarely occur between third parties. This is to involve:

• clarifying the circumstances in which transactions can be re-characterised;

• clarify the application of transfer pricing methods (in particular profit splits) in the context of global value chains;

• providing protection against “common types of base eroding payments”, such as management fees and head office expenses.

 

The stone thrown into the pond by these particular transfer pricing related action items is likely to create waves that will cause a stir for a long time in the future. Multinational enterprises are under pressure to comply with transfer pricing rules and are allocating significant resources to do so. Changing the transfer pricing rules by applying different interpretations to the existing rules rather than including specific new rules with clear effective dates will lead to a lot of uncertainty, exposure and controversy. One example being the intercompany cost allocation systems. According to the Action Plan, management fees and head office expenses are labelled “common types of base eroding payments.” Unfortunately, many revenue authorities require parent companies to actually allocate those costs out to their group entities under the applicable transfer pricing rules rather than have them applied against and reduce domestic taxable income. The OECD's draft transfer pricing risk assessment handbook uses the same “base erosion” analysis. If anything, this new emphasized angle is likely to trigger a lot of uncertainty and additional controversy. The need to address the above issues is included partly in the first and partly in the second bucket, to be addressed ultimately by September 2015.

B. Transparency-related action items

This issue is identified as action items 11,12 and 13 in the Action Plan. The Action Plan indicates that preventing BEPS implies the need for transparency at different levels. Data collection on BEPS needs to be improved and taxpayers need to disclose more targeted information. At the same time, transfer pricing documentation needs to be made less burdensome. The Plan indicates that outcome-based techniques (which look at measures of the allocation of income across jurisdictions relative to measures of value creating activities) can be part of the steps taken under the Action Plan. This points towards information that can fuel arguments in support of a more formulary-oriented income allocation rather than a comparables-based income allocation going forward. As an aside, a formulary-based global income allocation system could probably be set up such that it would indeed require less transfer pricing information than the current arm's length transfer pricing system requires.

The Action Plan in this regard provides the need for:

• developing recommendations regarding indicators of the scale and economic impact of BEPS;

• tools to monitor and evaluate the effectiveness and the impact of actions taken to address BEPS;

• assessing a range of existing data sources and identifying new types of data that should be collected;

• developing methodologies based on aggregate (FDI and balance of payments data) and micro level data (data from financial statements and tax returns).

 

The above is deemed necessary to develop an economic analysis of the scale and impact of BEPS and actions to address it. Tax authorities do not have enough information to evaluate tax planning strategies. The Action Plan considers that this information is needed for governments to identify risk areas. Audits take place after the fact and earlier detection is preferable. Disclosure initiatives or co-ordinated compliance programmes are considered as useful in this respect. As such, the Action Plan recommends design of mandatory disclosure rules for aggressive transactions.

As regards transfer pricing documentation, the Action Plan hints towards regular disclosure, which seems to infer broader disclosure of global transfer pricing documentation or transfer pricing specific relevant information because the tax authorities have little capability to develop a “big picture” view of a taxpayer's global value chain otherwise.

The need to enhance transparency along the lines of the above topics is included in the second bucket, to be addressed by September 2015, although the transfer pricing documentation adjustments are scheduled to be released by September 2014.

C. Controversy-related action item

This issue is identified as action item 14 in the Action Plan. It is without any doubt that the above mentioned actions to counter BEPS will lead to (more) audit scrutiny and tax controversy. This will consist of controversy between individual multinational enterprises and tax authorities in respective countries, but it will certainly also put tension on relations between tax authorities of the respective countries where MNEs conduct business. As a result, the mutual agreement process included in treaties for the avoidance of double taxation is likely to become both a bottleneck and battlefield. The February 2013 BEPS Report emphasises that avoidance of double taxation and increased efficiency of mutual agreement procedures and arbitration provisions are part of the considerations. The Action Plan further provides that the absence of arbitration provisions in most treaties and the fact that MAP and arbitration may be denied in certain cases requires solutions. This action item foreshadows some form of mandatory arbitration. However, all countries being sovereign, it is a bit of a challenge to imagine how sovereign countries can be forced into subjection to mandatory arbitration if they do not wish to. It is not at all unlikely that this action item, one way or another, will fall off the wagon, to the detriment of taxpayers. A major challenge for the OECD will be to have countries sign up for mandatory arbitration in addition to them all taking co-ordinated (ergo: the same) steps to tackle BEPS, so as to allow for some predictability and avoidance of double taxation for taxpayers.

The need to consider a dispute resolution mechanism/mandatory arbitration is included in the second bucket, to be addressed by September 2015.

D. Implementation-related action item

This issue is identified as action item 15 in the Action Plan. In order to allow for the identified action items to be implemented as broadly as possible, so that they are as universally applied and interpreted as possible, the proposed and agreed solutions could be anchored if not embedded in the OECD Model Convention on Avoidance of Double Taxation. However, as changes to the Model Convention articles only apply in practice when incorporated in actual effective treaties, more is needed then an amendment of the Model Convention articles to get immediate result. Changes to the commentary to the Convention have a dynamic interpretation and as such could be implemented immediately. However, the action items appear to be so material that a commentary change is not likely to capture all that will be proposed and the impact that is intended. Therefore, the OECD refers to some form of multilateral instrument that would allow for the signatories to that multilateral instrument to all agree to the upcoming amendments to the OECD Model Convention and incorporate the BEPS Action Plan outcome also into their respective bilateral treaties that are based on the OECD Model Convention.

The need to consider a multilateral instrument to implement the Action Plan outcome is included is scheduled to be addressed as early as September 2014 and as late as by September 2015.

However you look at it, the BEPS initiative, unless it peters-out, is likely to present a fresh and major change in thinking about global income allocation. And why not? It presents an opportunity for innovation in international tax that appears due. Perhaps it is a missed opportunity that several action items are envisaged to be implemented as “corrections of flaws” in the current system rather than allowing for a true debate and creation of new rules and principles. At least for the transfer pricing related action items the “mending the flaws in the current system” approach seems to be the avenue that has been decided on rather than actual innovation.

lll. The Turtle and the Hare

The G20 has urgently put forward the OECD as the most appropriate institution to run the race that will determine global income allocation. The BEPs Report and related Action Plan identify issues that are very important for the respective economies of the G20, such as tax planning involving the transfer of intangibles to low tax jurisdictions. But underlying the BEPS project seems to be a concern regarding the increasing force and say that the BRICs and other developing countries have and are exerting recently as regards MNEs doing business in their countries. There has been an increasingly strong assumption developing that as business moves towards the demand found in the BRICs and developing countries, so should taxable income and taxing rights. However, that is not necessarily always the case under the current source and residence rules of the OECD Model Convention. The Action Plan identifies issues that can serve the BRICs and support their particular views as to where value is created, considering where demand for products and services lie (location specific advantages?) and that risk (and thus reward) cannot be separated from the location of (even simple R&D) functions. The revised discussion draft on transfer pricing aspects of intangibles of July 30, 2013, seems to embrace this same, yet relatively new, approach. If the BEPS Action Plan will materialise its hints towards global income allocation based on profit splits and broaden permanent establishment and intangible definitions, this may be an effective albeit indirect way to soften the consequences of the current source and residence rules under the OECD Model Convention.

Although the OECD is trying to include as many stakeholders as possible in the BEPS project, there is no doubt that it, as the hare in our fact pattern has earned its stripes and is eager and up to the match. It has fifty years of experience and 34 member countries, including some of the largest economies in the world. With high ambition and eye-popping speed, at least from a tax perspective, the BEPS Action Plan is scheduled to present tangible proposals and outcomes as soon as within 12-18 months with others to be delivered in two-years time. Our turtle hardly seems a credible match as compared to the hare's vast experience, energy, resources and abundant know-how. Although cordially invited to attend and observe the hare's training and preparation sessions, the turtle's immediate family includes countries with largely undeveloped or uncoordinated regional tax systems with staff that still has limited experience and training. This invariably slows down its ambition to speed up. Its concerns in raising revenue include items such as corruption and maintaining/ matching taxpayer records and information in a co-ordinated fashion. That said, nobody can deny that the turtle is progressing perhaps slowly but certainly steadily in the direction of its liking. At the UN, discussions on improving the UN Model Convention continue to proceed and it certainly has its share of avid supporters. More than that, taxpayers that wish to visit its habitat in general adjust to its pace and abide by its rules.

According to Aesop's fable, the hare significantly overestimates itself and significantly underestimates its competitor with the outcome of losing the race. Could it be that the G20 and the OECD, both quick to take action, represent the hare in the BEPS initiative? Is this a race among such unequal parties? In that case the BRICs and their peers, i.e. the developing countries, are left to represent the turtle. If that is indeed the case, and the fable holds true, the speed at which the OECD is taking matters at hand will not be determinative for the outcome of the project at all. In that case the perseverance and co-ordination observed at the level of the BRICs and the developing countries will be what is determinative and merits close attention.

Of course, the outcome of the BEPS project - if it indeed can be seen as a race of sorts - will be different according to Aesop's fable, if in the end it turns out that the BRICs with their rapidly rising influence represent the hare and the G20 and the OECD represent the turtle. However, before any conclusions are to be drawn from the above analysis, please note that the story of the turtle and the hare is just a fable.


Monique van Herksen is an international tax practitioner and partner with Ernst & Young in The Netherlands. This story of the turtle and the hare reflects exclusively her own views, not those of Ernst & Young. She can be reached at:
monique.van.herksen@nl.ey.com
www.ey.com

NOTES

1 Aesop is a storyteller who supposedly lived in ancient Greece in the 5th century BC.

2 “Minimise this” A plan for curbing tax avoidance begins to take shape. Economist July 27, 2013 p. 52.

3 “When Giants slow down” The most dramatic and disruptive period of emerging- market growth the world has ever seen is coming to its close. Economist July 27, 2013 p. 17.

4 See also Chapter 10 of the UN's Practical Manual on Transfer Pricing for developing countries, at www.un.org/esa/ffd/tax/documents/bgrd_tp.htm. Another instance that can be referred to includes the Indian Vodafone case, Vodafone International Holdings B.V. v. Union of India & Anr., Civil Appeal No. 733 of 212.

5 A more broad discussion and background to possibly relevant macro-economic developments in this respect is provided in the author's article “The OECD BEPS Report: the Story of the Elephant, the 800-pound Gorilla and the Tiger.” Transfer Pricing International Journal, Vol.14, No.7, July 2013, www.bna.com/oecd-beps-report-n17179875162/

6 One can easily predict that the developments of 3D printing may create another challenge as to where value is created and resulting income should be taxed.

7 Letter from the Under Secretary of Finance of March 20, 2013, no. IFZ/2013/136