OECD and Country Measures to Combat Base Erosion and Profit Shifting

The Tax Management Transfer Pricing Report ™ provides news and analysis on U.S. and international governments’ tax policies regarding intercompany transfer pricing. 

With the OECD's work to combat base erosion and profit shifting on the cusp of completion, this third Bloomberg BNA analysis identifies significant legislative and regulatory measures, both proposed and final, to implement changes to countries' international tax regimes arising from the project.

A joint effort of the Organization for Economic Cooperation and Development and the Group of 20 countries, the BEPS project involves 44 nations. The 15-action plan, launched in July 2013, covers virtually the entire international tax landscape.

OECD working parties have already finished their meetings on the second and final tranche of BEPS deliverables, with the project on course to meet its arduous fall deadline.

The OECD's Committee on Fiscal Affairs is scheduled to approve the final set of BEPS deliverables on Sept. 23. The OECD will then deliver the legal instruments to the G-20 finance ministers in Lima, Peru, Oct. 8.

The final tranche of BEPS deliverables that the Committee on Fiscal Affairs is scheduled to approve comprises:

  • Action 2—recommendations for countries to adopt on the design of their domestic rules to neutralize the effects of hybrid mismatch arrangements;
  • Action 3—recommendations on the design of rules on controlled foreign corporations;
  • Action 4—recommendations on the design of rules to determine the deductibility of interest on related-party debt;
  • Action 5—recommendations on addressing harmful tax practices;
  • Action 6—a report on preventing treaty abuse;
  • Action 7—changes to the permanent establishment rules under Article 5 of the OECD Model Tax Convention;
  • Action 8, 9, and 10—revised Chapters 1 and 6 of the OECD transfer pricing guidelines, on the arm's-length standard and intangibles, respectively;
  • Action 11—proposed indicators for judging the effectiveness of measures designed to combat BEPS;
  • Action 12—recommended mandatory disclosure rules involving aggressive transactions, arrangements or structures;
  • Action 13—a new chapter 5 of the OECD transfer pricing guidelines that includes the country-by-country reporting template, master file and local file; and
  • Action 14—a report on making dispute resolution mechanisms more effective.

The OECD Oct. 8 will then deliver these items to the G-20 finance ministers meeting in Lima, Peru.

The trajectory of the guidance under Action 13 is well known with the country-by-country reporting template, master file and local file well delineated.

The contours of the critical transfer pricing work under Actions 8, 9, and 10 will be disclosed this fall.

On July 23 the U.S. delegate to the OECD's Committee on Fiscal Affairs reassured a meeting of business economists in Washington, D.C. that the forthcoming revisions to the OECD's transfer pricing guidelines will not include radical changes. Robert Stack, U.S. deputy assistant Treasury secretary for international tax policy, said that there would not be “an enormous amount of surprise” when the OECD releases its changes to Chapters 1 and 6 of the guidelines, addressing risks, nonrecognition and intangibles, in early October.

One unintended consequence of the BEPS project—illustrated by the analysis below—is a movement by more countries to adopt patent boxes which give preferential tax treatment for income arising from intellectual property.

Two senior members of the U.S. House Ways and Means Committee July 29 proposed draft legislation that would establish a U.S. innovation box. The proposal, floated by Reps. Charles Boustany Jr. (R-La.) and Richard E. Neal (D-Mass.), would establish a 10 percent tax rate on qualifying income and waive taxes on repatriated intellectual property until sold.

Ireland's Department of Finance July 30 suggested that the nation's proposed “knowledge development box,” providing for a lower corporate income tax rate on income from intellectual property, will apply only to income from patents and copyrights.

On July 19, the Italian Finance Minister Pier Carlo Padoan signed a document approving Italy's patent box regime. The regime offers a 30 percent exemption against the 27.5 percent corporate income tax and the 3.9 percent regional tax on productive activities starting this year.

Two other trends are also apparent. Bloomberg BNA's second analysis of country measures emanating from the BEPS project, published in July, confirmed trends revealed by the first analysis, published in March. Those two trends are:

 

  •  tax administrations embracing the OECD's country-by-country reporting template under BEPS Action 13; and
  •  early adoption by some countries of measures to neutralize the effects of hybrid mismatch arrangements (Action 2), and to limit interest deductions (Action 4).

 

This chart is a work in progress. Readers are encouraged to e-mail updates to the editor, Kevin Bell, at kbell@bna.com.

 

Action 1—Tax Challenges of the Digital Economy

March 24, 2014: Discussion draft issued outlining issues to be identified.   

Sept. 20, 2104: Report delivered to meeting of G-20 finance ministers.  

Dec. 18, 2014: Discussion draft on VAT B2C guidelines (23 TPR 1126, 1/8/15).  

May 8, 2015:   U.S. official says BEPS project unlikely to produce specific OECD recommendations on how to tax the so-called digital economy (24 TPR 36, 5/14/15).

   
Country Proposed Measures Final Measures
Argentina   Buenos Aires issued two resolutions Aug. 27, 2014, that extend the jurisdiction's “turnover tax” to foreign entities that do not have a PE in the city. The “Netflix tax” charges 3 percent of gross revenue from the sale of goods and services carried out within Buenos Aires.
France The government Feb. 26, 2015, issued a report recommending that countries consider a joint rule to allow tax administrations to “share” corporate profits of multinational internet companies, or, alternatively, to impose national taxes on specific income streams or data flows.  
Action 2—Neutralizing the Effects of Hybrid Mismatch Arrangements

March 19, 2014: Two discussion drafts released on neutralizing the effects of hybrid mismatch—one on enacting domestic laws and one on tax treaty issues.  

Sept. 16, 2014: Report recommending model domestic legislation and OECD model treaty provisions, to the Sept. 20 meeting of the G-20 finance ministers.  

July 28, 2015: U.S. delegate to Working Party No. 11 says work finished on hybrid mismatch arrangements.  

Coming up: OECD's Committee on Fiscal Affairs scheduled to adopt recommended rules Sept. 23, to deliver final recommendations to the G-20 meeting in Lima, Peru, Oct. 8.

   
Country Proposed Measures Final Measures
France   The French tax authority Aug. 5, 2014, published updated guidance on its retroactive anti-hybrid measure that strictly limits deduction of interest paid between related companies.
Hungary The government has announced that it will introduce a new anti-hybrid rule in 2015.  
Japan   The Japanese National Diet March 31, 2015 enacted legislation providing that dividends paid by a foreign subsidiary will not qualify for Japan's foreign dividend exclusion regime if the dividends are wholly or partially deductible in the country where the foreign subsidiary is located. The legislation is effective April 1, 2016.
Mexico   Mexico's tax reform law, effective Jan. 1, 2014, disallows a deduction for interest, royalty and technical assistance payments if the payment is not subject to tax in the recipient country.
New Zealand The government will hold a consultation on changing the rules on hybrid instruments in late 2015.  
Spain   New legislation on hybrid instruments came into force on Jan. 1, 2015.
United Kingdom The government on Dec. 3, 2014, published a consultation document on whether to implement the G20-OECD approach for addressing hybrid mismatch arrangements.  
United States Obama's 2016 budget had proposed curbing hybrid mismatch arrangements by eliminating U.S. tax deductions on interest or royalty payments if there is no corresponding inclusion to the recipient in the foreign jurisdiction.  
Action 3—Strengthening Rules on Controlled Foreign Corporations

April 3, 2015: Discussion draft calling for broad CFC definition (23 TPR 1569, 4/16/15).   

May 12, 2015: Practitioners say draft's proposal to strengthen CFC rules by treating most intellectual property income as passive fails to reflect how some business sectors use IP (24 TPR 29, 5/14/15).  

May 18, 2915: U.S. official says the BEPS project unlikely to produce minimum standards for rules on CFCs (24 TPR 90, 5/28/15).  

July 28, 2015: U.S. delegate to Working Party No. 11 says the working party has finished its work on CFCs.  

Coming up: Committee on Fiscal Affairs scheduled to adopt recommendations on the design of CFC rules Sept. 23, to deliver final recommendations to G-20 Oct. 8.

   
Country Proposed Measures Final Measures
Chile   Congress Sept. 10, 2014, approved Chile's first CFC regime, effective Jan. 1, 2016.
Poland   Parliament Aug. 29, 2014, approved legislation that will introduce a CFC regime in 2015.
South Africa   Parliament Jan. 20, 2015, approved legislation simplifying the exemption from CFC attribution.
Spain   Amended CFC rules came into force on Jan. 1, 2015, that require greater substance for the CFC to avoid imputation of foreign income.
United States Obama's 2016 budget had proposed a new category of income taxable under Subpart F—“foreign base digital income,” which would cover income of a CFC from the lease or sale of a “digital copyrighted article or digital service,” if the CFC is using intangible property developed by a related party.  
Action 4—Limiting Base Erosion via Interest Deductions and Other Financial Payments

Dec. 18, 2014: Discussion draft issued.  

Feb. 27, 2015: U.S. government officials say the OECD is likely to adopt a “combination test” to determine the deductibility of interest on related-party debt involving group-wide interest allocation (23 TPR 1371, 3/5/15).  

July 28, 2015: U.S. delegate to Working Party No. 11 says the working party has agreed on best practice rules.   

Coming up: Committee on Fiscal Affairs scheduled to adopt recommendations on the design of domestic interest rules Sept. 23, to deliver to G-20 Oct. 8. Work on changes to the OECD transfer pricing guidelines involving related-party financing transactions will continue into 2016.

   
Country Proposed Measures Final Measures
Australia   Parliament on Sept. 25, 2014, passed changes to the thin capitalization rules, rewriting the exemption for foreign non-portfolio dividends received by Australian companies, effective for years starting on or after July 1, 2014.
Chile   Congress Sept. 10, 2014, approved changes to its thin capitalization rules, including both related- and unrelated-party loans in the calculation of debt. The changes entered into effect on Jan. 1, 2015.
Poland   Parliament Aug. 29, 2014, approved legislation strengthening the thin capitalization rules by replacing the previous 3:1 debt-to-share capital ratio with a lower debt-to-equity ratio of 1:1.
New Zealand The government will hold a consultation on changing the rules on limiting interest deductions in late 2015.  
South Africa   Parliament Jan. 20, 2015, approved legislation changing the thin capitalization rules effective Jan. 1, 2015, limiting the interest deduction to 40 percent of EBITDA.
South Korea   Korea’s National Assembly Dec. 2, 2014, enacted legislation reducing the debt-to-equity ratio, which limits the deductibility of interest payments to foreign controlling shareholders, from 3:1 to 2:1.
United Kingdom   The government has changed its definition of a group in the U.K. worldwide debt cap rules, effective Dec. 5, 2013.
United States Obama's 2016 budget had proposed requiring a group member's interest expense deduction to be limited to its interest income, plus a proportionate share of the financial reporting group's net interest expense.  
Action 5—More Effectively Countering Harmful Tax Practices

Sept. 16, 2014: Progress report.  

Feb. 26, 2015: OECD official says work to implement recent compromise reached by Germany, U.K. on patent boxes has begun (23 TPR 1368, 3/5/15).  

Coming up: Committee on Fiscal Affairs scheduled to adopt recommendations to address harmful tax practices Sept. 23, to deliver to G-20 Oct. 8.

   
Country Proposed Measures Final Measures
Ireland Ireland published a paper July 30, 2015, hinting at the direction that its proposed “Knowledge Development Box” proposal will take. The patent box is likely to apply only to patents and copyrights. The government will publish draft legislation in October. See the story in this issue.  
Italy On July 19, 2015, the Italian Finance Minister Pier Carlo Padoan signed a document approving Italy's patent box regime. The regime offers a 30 percent exemption against the 27.5 percent corporate income tax and the 3.9 percent regional tax on productive activities starting this year.  
Germany The German and U.K. governments agreed in November, 2014, that patent box tax regimes should be limited to jurisdictions where IP research and development is undertaken based on the OECD's nexus approach.  
Italy   Italy’s Parliament Dec. 22, 2014, approved a patent box regime, effective for tax years beginning after Dec. 31, 2014, based on the OECD's nexus approach.
Netherlands   The government Sept. 1, 2014, issued a decree clarifying that a Dutch entity is eligible for the innovation box's 5 percent tax rate even if the entity outsources more than 50 percent of its research and development so long as the Dutch entity substantially controls the development of the intangible.
Switzerland A government official Sept. 22, 2014, announced that Switzerland plans to introduce a “license box” at the cantonal level.  
United Kingdom The U.K. and German governments agreed in November 2014 that patent box tax regimes should be limited to jurisdictions where IP research and development is undertaken based on the OECD's nexus approach.  
United States A July 29, 2015 proposal, floated by two senior members of the House Ways and Means Committee, Reps. Charles Boustany, Jr. (R-La.) and Richard E. Neal (D-Mass.), would establish a 10 percent tax rate on qualifying income and waive taxes on repatriated intellectual property until sold, all as part of a U.S. innovation box. See the story in this issue.  
Action 6—Preventing Tax Treaty Abuse

Sept. 16, 2014: Report on proposed domestic rules and treaty changes to prevent the granting of tax treaty benefits in inappropriate circumstances.  

Nov. 21, 2014: Second discussion draft issued.  

March 14, 2015: Third discussion draft issued.  

May 22, 2015: Revised discussion draft including a “simplified” limitation on benefits rule, which the guidance states should be paired with a “principal purpose test” rule (24 TPR 92, 5/28/15).  

Coming up: Committee on Fiscal Affairs scheduled to adopt report on treaty abuse Sept. 23, to deliver to G-20 Oct. 8.

   
Country Proposed Measures Final Measures
Canada The government's Aug. 29, 2014, legislative proposal omitted measures to counter treaty shopping, deferring this issue until the BEPS project is finished.  
Japan   The Japanese National Diet March 31 introduced a new exit tax for individuals leaving Japan.
Mexico   The 2014 tax reform included a number of BEPS-related measures and requiring a nonresident claiming benefits under a tax treaty to demonstrate that double taxation would arise in the absence of treaty benefits.
Action 7—Preventing the Artificial Avoidance of Permanent Establishment Status

Oct. 31, 2015: Discussion draft issued.  

May 15, 2015: Final discussion draft on PEs, choosing its proposed “option B” to rewrite the PE rules on commissionaire structures (24 TPR 90, 5/28/15).  

Coming up: Committee on Fiscal Affairs scheduled to adopt changes to Article 5 of the OECD Model Tax Convention Sept. 23, to deliver to G-20 Oct. 8.

   
Country Proposed Measures Final Measures
Australia The Australian government May 12, 2015, released draft legislation, that would enter into effect Jan. 1, 2016, targeting multinationals suspected of using artificial arrangements to avoid a taxable presence in Australia.  
United Kingdom   The U.K. Parliament March 25, 2015 adopted a “diverted profits tax,” applying at a rate of 25% regarding profits arising after April 1, 2015. The tax applies when a non-U.K. company has artificially avoided having a PE in the U.K.
Action 8, 9, and 10—Making Transfer Pricing Outcomes Reflect Value Creation

Sept. 16, 2014: Draft guidance adopting a broad definition of intangibles to ensure that profits associated with the transfer and use of intangibles are allocated in accordance with value creation.  

Nov. 3, 2014: Discussion draft on low-value-adding intragroup services.  

Dec. 16, 2014: Discussion draft on profit splits.  

Dec. 16, 2014: Discussion draft on commodity transactions.  

Dec. 19, 2014: Discussion draft on risk, recharacterization and special measures.  

April 29, 2015: Discussion draft on cost contribution arrangements taking the position that value, rather than cost, governs in evaluating those arrangements (23 TPR 1621, 4/30/15).  

June 4, 2015: Discussion draft on hard-to-value intangibles relying on commensurate-with-income type rules from the U.S. regulations.  

July 6, 2015: Officials say OECD considering adopting additional exemptions—possibly in the form of specific allowable variation—to limit the scope of reevaluations based on ex post evidence (24 TPR 274, 7/9/15) and that a cash box, which is not exercising meaningful control of financial risk connected with its funding, will get no more than a risk-free rate of return for the funding itself (24 TPR 275, 7/9/15).  

Coming up: Committee on Fiscal Affairs Sept. 23 is scheduled to adopt changes to chapters 1 and 6 of the OECD transfer pricing guidelines, and deliver the final guidance to the G-20 meeting in Lima, Peru, Oct. 8. OECD work on profit splits will continue into 2016.

   
Country Proposed Measures Final Measures
United States The U.S. delegate to the OECD's Committee on Fiscal Affairs said July 23 that the forthcoming revisions to chapters 1 and 6 of the OECD's transfer pricing guidelines will not include radical changes. See the story in this issue.  
Action 11—Establishing Methods to Collect and Analyze BEPS Data

April 16, 2015: Discussion draft proposing seven indicators for judging the effectiveness of measures designed to combat BEPS (23 TPR 1622, 4/30/15). 

May 13, 2015: Oxford University professor says the proposed indicators will be ineffective in estimating the scale of BEPS (24 TPR 28, 5/14/15). 

Coming up: Committee on Fiscal Affairs scheduled to adopt proposed indicators Sept. 23 and to deliver final recommendations to G-20 Oct. 8.

   
Country Proposed Measures Final Measures
N/A    
Action 12—Requiring Taxpayers to Disclose Aggressive Planning Arrangements

March 31, 2015: Discussion draft on mandatory disclosure rules. 

May 11, 2015: Business representatives tell OECD the proposed rules are unworkable (24 TPR 34, 5/14/15). 

Coming up: Committee on Fiscal Affairs scheduled to adopt recommended mandatory domestic disclosure rules Sept. 23, to delver final guidance to G-20 Oct. 8.

   
Country Proposed Measure Final Measures
N/A    
Action 13—Reexamining Transfer Pricing Documentation

Jan. 30, 2014: Discussion draft on documentation, including template for country-by-country reporting.  

Sept. 16, 2014: Revised guidance including master file and local file.  

Feb. 6, 2015: Guidance on implementing the template, master file and local file (23 TPR 1367, 3/5/15).  

June 8, 2015: Model legislation, three model agreements for government-to-government exchange of the template (24 TPR 149, 6/11/15).  

April 15, 2015: U.S. Treasury officials say the forthcoming rewrite of Chapter 5 of the OECD's transfer pricing guidelines on documentation will provide multinational enterprises with the necessary flexibility as they complete the new country-by-country reporting template (23 TPR 1547, 4/16/15).  

Coming up: No further changes are expected when guidance is delivered to the G-20.

   
Country Proposed Measures Final Measures
Australia The government May 12 announced it will implement the OECD's guidance on documentation and country-by-country reporting, effective for the first income tax year beginning on or after Jan. 1, 2016.  
Canada The government has announced that it plans to adopt country-by-country reporting.  
Germany A government official said July 16, 2015, that Germany will adopt the OECD rules for country-by-country reporting. Chancellor Angel Merkel's cabinet will send a draft bill to Bundestag early next year.  
Spain A government official announced Jan. 20, 2015, that Spain will adopt the OECD's proposed country-by-country reporting template.  
United Kingdom The government Dec. 10, 2014, published draft legislation that would require multinationals to provide HMRC with the country-by-country report.  
United States A government official said Feb. 26, 2015, that the U.S. plans to implement the country-by-country reporting template and will try to meet the OECD's aspirational timeline so that companies would have to file their first template by Dec. 31, 2017.  
Action 14—Making Dispute Resolution Mechanisms More Effective

Dec. 18, 2014: Discussion draft identifying obstacles to effective dispute resolution.   

Jan. 19, 2015:  Comments published by OECD advocate binding arbitration as the preferred dispute resolution tool to get competent authorities to resolve cases (23 TPR 1399, 3/5/15).   

June 11, 2015: OECD official cites statement by G-7 leaders in support of mandatory binding arbitration following their June 7-8 summit in Elmau, Germany (24 TPR 220, 6/25/15).

   
Country Proposed Measures Final Measures
N/A    
Action 15—Developing a Multilateral Tax Treaty

Sept. 16, 2014:  Report on public international law issues advising that a multilateral instrument is legally feasible to update 3,000 bilateral double-tax treaties, in order to rapidly implement BEPS measures.  

June 8, 2015: More than 80 countries, with the notable exception of the U.S., reported to express interest in joining a multilateral instrument to more rapidly implement BEPS measures (24 Transfer Pricing Report 153, 6/11/15).  

Coming up: OECD focus group tasked with negotiating the multilateral treaty, chaired by Mike Williams of the U.K., to meet Nov. 5-6 to begin substantive work, which will extend into 2016.

   
Country Proposed Measures Final Measures
Andorra, Argentina, Australia, Austria, Azerbaijan, Bangladesh, Barbados, Belgium, Bhutan, Brazil, Bulgaria, Burkina Faso, Canada, People’s Republic of China, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Dominican Republic, Fiji, Finland, France, Georgia, Germany, Greece, Guatemala, Hungary, Iceland, India, Indonesia, Ireland, Israel, Italy, Jamaica, Japan, Kazakhstan, Korea, Latvia, Lebanon, Liberia, Liechtenstein, Lithuania, Luxembourg, Malaysia, Malta, Marshall Islands, Mauritius, Mexico, Moldova, Morocco, Netherlands, New Zealand, Nigeria, Norway, Philippines, Poland, Portugal, Qatar, Romania, Russia, San Marino, Saudi Arabia, Senegal, Serbia, Singapore, Slovak Republic, Slovenia, South Africa, Spain, Sri Lanka, Swaziland, Sweden, Switzerland, Tanzania, Thailand, Tunisia, Turkey, United Kingdom, Uruguay, Viet Nam and Zambia. These 83 countries have formed a focus group to negotiate a multilateral tax treaty to more rapidly implement BEPS measures. Members of the focus group appointed Mike Williams of the U.K. as chair and the following individuals as vice-chairs: Liao Tizhong of the People’s Republic of China, Mohammed Amine Baina of Morocco and Kim S. Jacinto-Henares of the Philippines. The focus group will meet on Nov. 5 and 6 to begin its substantive work. The work on Action 15 will extend into 2016.