International Tax Insight - Baker Tilly International
Transcription
International Tax Insight - Baker Tilly International
International Tax Insight December 2014 Editorial Welcome to the latest edition of Baker Tilly International’s premier tax publication. In an increasingly globalised world, the following content aims to cover key tax topics which should be of interest to businesses operating internationally. This edition features recent international tax developments emanating from Australia, the European Union, France, India, Ireland, New Zealand, the Organisation for Economic Co-operation and Development (OECD), Poland, South Korea, the UK, the United Nations and the US. Should you require further information regarding any international tax matters, please do not hesitate to contact a specialist from one of our member firms, which can be located within our Worldwide Directory at www. bakertillyinternational.com. Chris Danes I hope you find this document informative. International Tax Executive, Baker Tilly International Australia multilateral work being undertaken by the ATO and asked the Commissioner to do more in this area. The ATO’s BEPS strategy aligns with the goals of the G20 and recent statements by the Treasurer,” Mills said. ATO Commissioner Urges International Collaboration on BEPS Unprecedented international collaboration is needed to overcome a single, isolated country view to tackling base erosion and profit shifting (BEPS) issues, Andrew Mills, Second Commissioner of Australian Taxation Office (ATO) for Law Design and Practice, has said. In a speech delivered at the Second Annual Tax Forum organised by the Tax Institute of Australia on 9-10 October 2014, Mills said: “As multinationals are operating across borders seamlessly by taking a global, topdown view to structure their operations across countries, administrators and policy makers need to do the same.” Mills said that Australia is at the forefront of efforts to reform the international tax system to keep pace with rapid advances including with respect to globalisation and the digital economy. Mills reinforced the widely-held view that “companies should pay tax in the country where the real economic activity occurs and where the profit is earned.” He said that most corporate taxpayers willingly comply with their obligations, but there are a minority who use sophisticated tax arrangements to gain an unfair advantage over others. He added that the federal Government is committed to tackling these tax arrangements. “On many occasions, Treasurer Joe Hockey has stated that Australia is open for business. Recently, on 4 September, the Treasurer remarked that ‘opening our doors also means ensuring multinational companies pay tax in Australia on the income they earn here.’ The Treasurer highlighted the European Union EU Value-Added Tax Reforms Closing the VAT Gap The European Commission has published its latest VAT gap study, which shows that an estimated €177bn (US$223.9bn) in value-added tax (VAT) revenues was lost due to non-collection or non-compliance in 2012 — a figure equal to 16% of expected VAT revenues. Algirdas Semeta, European Commissioner for Taxation, said: “The VAT gap is essentially a marker of how effective — or not — VAT enforcement and compliance measures are across the European Union (EU).” The study calculates the VAT that goes uncollected owing to fraud and evasion, legal tax avoidance, bankruptcies, financial insolvencies, miscalculations, and the poor performance of tax administrations. The findings in the 2012 report show a marked improvement on the 2011 level of €193bn, which was equal to 18% of expected VAT revenues and a gap worth 1.5% of the member states’ combined gross domestic product (GDP). In 2012, the lowest VAT gaps were recorded in the Netherlands (5% of expected revenues), Finland (5%) and Luxembourg (6%). The largest gaps were in Romania (44%), Slovakia (39%) and Lithuania (36%). Eleven member states decreased their VAT gap between 2011 and 2012, while 15 saw theirs increase. Greece showed the greatest improvement between 2011 (€9.1bn) and 2012 (€6.6bn), although it still has a high VAT gap of 33%. Semeta concluded: “Today’s figures show there is a lot more work to be done. Member states cannot afford revenue losses of this scale. They must up their game and take decisive steps to recapture this public money. The Commission, for its part, remains focused on a fundamental reform of the VAT system, to make it more robust, more effective, and less prone to fraud.” EU Competition Commissioner Defends Tax Ruling Probes The European Commission’s investigations into advance tax rulings from EU member states are aimed at ensuring a level playing field for companies in the EU and are not a back-door attempt at tax policy harmonisation, Joaquín Almunia, the European Commission’s Vice President in charge of competition policy, has said. Speaking at the American Chamber of Commerce EU’s 31st Annual Competition Policy Conference in Brussels on 14 October 2014, Almunia said: “I am not trying to modify tax legal systems. What I want is to avoid that through their interpretation, national authorities will grant selective advantages to a few companies at the expense of all the others present in the same jurisdiction.” “EU tax authorities are responsible to ensure a level playing field, instead of offering different treatments to companies with comparable legal standings and operations.” Almunia said that the investigations launched by the Commission into advance tax rulings are not directed against specific companies, but look into the tax practices of certain EU countries. “In particular, the deals we have identified benefit only a handful of large multinationals that can put enticing investments and job opportunities on the negotiating table. Smaller companies cannot wield the same bargaining power,” he added. Recently, the Commission opened investigations into tax rulings for Apple in Ireland, Starbucks in the Netherlands, and Fiat in Luxembourg, and more recently Amazon in Luxembourg. It has also expanded its review of Gibraltar’s corporate tax regime to cover advance tax rulings. “Similar aspects are being discussed in the US, where public attention on practices such as tax inversion is growing and the US Government is taking concrete measures. The OECD has also been working on aggressive tax planning with its BEPS project,” Almunia said. France France Releases 2015 Finance Act Tax provisions in the 2015 Finance Act, released on 1 October, are limited to tax incentives for individuals and the introduction of more favourable tax credits in overseas departments, according to law firm CMS Bureau Francis Lefebvre. The measures include: A tax break for low incomes: The first tax bracket (5.5%) is to be withdrawn and the next bracket of 14% becomes applicable on annual incomes of €9,690 (US$12,160) A 30% rebate against capital gains tax realised on the sale of land to be developed Relaxed rules on tax credits for the acquisition of buildings to be leased A rebate of up to €100,000 against the value of certain transfers (land, new buildings) for gift tax purposes A reduced 5.5% VAT rate on the acquisition of real estate in distressed areas The withdrawal of certain ‘small’ indirect taxes that bring in very little revenue and are cumbersome to administer An increase in tax on diesel (€0.02 per liter), and Increased tax credits in overseas departments: The employment tax credit (CICE) will be increased from 6% to 7.5% in 2015, and to 9% in 2016. The research and development tax credit will be increased from 30% to 50%. Stéphane Gelin, Avocat Associé at CMS Bureau Francis Lefebvre, said: “It is expected that a few provisions addressing enterprises will be included in the 2014 Rectificative Finance Act for 2014. For instance, the scope of the Transfer Pricing (TP) documentation could be expanded to include Countryby-Country (CbC) Reporting, further to the OECD recommendations under the BEPS initiative. Furthermore, penalties for failure to provide such documentation in the course of a tax audit could be increased. Currently, the penalty can be up to 5% of the TP adjustment. The French Parliament proposed to replace it with a penalty equal to 0.5% of total sales, which was rejected by the Constitutional Court as being disproportionate. It is likely that a higher penalty would apply to any TP adjustment.” India Indian Businesses Urged to Anticipate BEPS Project Outcomes Businesses should begin to prepare for changes to the Indian tax landscape resulting from the OECD’s BEPS project, Akhilesh Ranjan, joint secretary, India’s Ministry of Finance, has said, while noting the Government will consider the views of industry when developing its response. Speaking at a Confederation of Indian Industry event on 7 November 2014, Ranjan said: “BEPS is a movement and not a business versus tax administration debate. We must understand where the world is moving, and not just India – the rules are important for multi-jurisdictional transactions of both domestic and international companies. It consists of a set of rules that would be acceptable worldwide.” Ranjan said that the Government will soon legislate to reflect the changes proposed by the OECD in respect of transfer pricing documentation and said that businesses must be prepared to deal with the new rules. “BEPS is in the offing and the rules are just months away,” he said. The conference echoed the growing calls of multinational corporations and Indian businesses alike for a stable, certain and less litigious tax environment to ensure that investors in the Indian economy are well positioned to plan their investments and estimate tax outcomes in a reasonable and consistent manner. Speaking at the conference, John Staples, Senior Policy Adviser, Corporation Tax Strategy, at the UK’s HM Revenue and Customs, said that against the backdrop of the current global economic meltdown, concerns have been raised about establishing a fair and transparent international tax system to support the growth of businesses globally, with a uniform set of rules. “BEPS aims to provide a more level playing field across borders. It is an opportunity to homogenise the tax rules internationally and minimise disputes,” he said. Under the BEPS Action Plan, the OECD has set out 15 areas of work to be undertaken, within an ambitious time schedule, across a range of tax issues. The G20 Finance Ministers recently endorsed the outcomes of the project’s first phase, covering the first seven areas of the BEPS project, with phase two, covering mainly transfer pricing-related topics, scheduled to be concluded by the end of 2015. India May Adopt Risk-Based Approach to Transfer Pricing Scrutiny India’s Central Board of Direct Taxes (CBDT) has issued Instruction No. 6 of 2014, dated 2 September 2014, on the procedure and criteria for compulsory manual selection of cases for scrutiny for the financial year 2014-15. The guidelines are broadly in line with last year’s Instruction but they no longer include the INR150m (US$2.48m) threshold for mandatory scrutiny of arrangements between a multinational company and its Indian subsidiary. This suggests that Indian authorities will now adopt a risk-based approach to scrutinising such transactions, consistent with the Government’s stated objective of cutting the number of cases that go to court. The guidelines state, however, that tax authorities must scrutinise “cases involving addition in an earlier assessment year on the issue of transfer pricing in excess of INR10m or more on a substantial and recurring question of law or fact, which is confirmed in appeal or is pending before an appellate authority”. Another key change is a requirement that any information sent to warn tax authorities that a transaction may involve tax evasion must be specific and verifiable before a case must be subject to scrutiny. Ireland New Budget Report Considers BEPS Project Impact on Ireland In a report released alongside the 2015 Budget, which maps out the potential impact of the OECD’s BEPS project on Ireland, the Government has said, “Ireland supports the use of the arm’s length principle and any move away from this principle, in special circumstances, would need to be carefully considered with their impacts fully examined”. On the area of transfer pricing, the report states that: “The Actions which focus on value creation (Actions 8, 9, and 10) are likely to result in changes internationally. It is clear that certain structures, with little substance, are in their winter, and as such there are opportunities for Ireland to become a location of choice for groups who wish to bring their intangible assets onshore together with the relevant substance”. It notes: “Ireland’s Foreign Direct Investment (FDI) policy has always centred on substance, and as such Ireland is well positioned to compete in the global FDI market for any investment relocating as a result of the BEPS process”. Plans to reinforce Ireland’s ‘position’ were introduced in the 2015 Budget. The Budget included measures to strengthen Ireland’s residency rules, in response to concerns raised during the BEPS work, and create a regime similar to that of the UK’s patent box regime, which would introduce preferential tax rates for intellectual property income in Ireland. The report moves on to suggest consideration of the adoption of controlled foreign corporation (CFC) rules, stating: “While Ireland does not operate a CFC regime, we do have rules which seek to tax profits once remitted to Ireland. Similarly Ireland has significant legislation relating to interest deductions and as such any further recommended changes would need to be brought about in line with other potential reforms”. The report notes Ireland’s concerns about potential restrictions on interest deductions as part of BEPS Action 4, which seeks to prevent base erosion through the use of related-party and third-party debt to achieve excessive interest deductions or to finance the production of exempt, deferred income, or other financial payments that are economically equivalent to interest payments. “At present it is not possible to determine the level of impact of any recommendations which may be proposed under Action 4. However...it will be important that these rules do not unduly impact on some industry groups,” it says. Lastly, the report rules out any changes to the Irish 12.5% corporation tax rate: “The BEPS project as a whole, or via any of its individual actions, is not focused on Ireland’s, or indeed any other jurisdiction’s tax rate. The BEPS project is built upon two pillars which are to align profits with substance and to address double non-taxation. Each country’s tax rate is not open to discussion”. It says that Ireland does not expect any impact on its rules from the OECD’s work on tackling harmful tax practices under BEPS Action 5 either, but concludes: “While the BEPS project offers a lot of positives, there will also be challenges for Ireland”. New Zealand New Zealand to Join Global Tax Evasion Crackdown in 2018 New Zealand will automatically share tax-related information with tax authorities worldwide from 2018, Revenue Minister Todd McClay announced on 29 October 2014. The announcement came as 51 jurisdictions signed a Multilateral Competent Authority Agreement on the automatic exchange of information that will enable ‘early adopters’ to begin sharing data by September 2017. McClay said: “New Zealand intends to align its timetable with Australia’s and begin exchanging information on a voluntary basis from 2018, aiming for mandatory reporting in 2019. This will give New Zealand’s financial industry enough time to comply with the initiative”. “Multinational companies that use BEPS measures to avoid tax is a global problem, and we are committing to joining other OECD countries in finding a global solution,” he added. adopting transfer pricing rules or special measures to provide protection against common types of base eroding payments, such as management fees and head office expenses”. “The automatic exchange of information initiative will set a global standard for sharing information,” he said. “It will operate much like the recently introduced US Foreign Account Tax Compliance Act where financial institutions will provide information on account holders’ financial assets to their local tax authority.” The discussion draft proposes the following: OECD OECD Launches BEPS Consultation on Intra-Group Services On 3 November 2014, the OECD invited public comments on a discussion draft on BEPS Action 10, regarding low value-adding intra-group services. The discussion draft looks at measures to reduce the scope for erosion of the tax base through excessive management fees and head office expenses. It proposes an approach that would identify a wide category of common intragroup services that command a very limited profit mark-up on costs, apply a consistent allocation key for all recipients, and would aim to provide greater transparency through specific reporting requirements. The discussion draft responds to calls for the OECD to “develop rules to prevent BEPS by engaging in transactions which would not, or would only very rarely, occur between third parties. This will involve A standard definition of low valueadding intra-group services Clarifications of the meaning of shareholder activities and duplicative costs, specifically in the context of low value-adding intragroup services Guidance on appropriate mark-ups for low value-adding intra-group services Guidance on appropriate cost allocation methodologies to be applied in the context of low valueadding intra-group services Guidance on the satisfaction of a simplified benefit test with regard to low value-adding services, and Guidance on documentation that taxpayers should prepare and submit in order to qualify for the simplified approach. The OECD is to accept responses until 14 January 2015. The draft will be subject to a public consultation at the OECD Conference Centre in Paris on 19-20 March 2015. ICC Calls For Policymakers to Pre-empt BEPS Double Tax Risks The International Chamber of Commerce (ICC) has said that the OECD’s BEPS Action Plan may unintentionally increase the complexity of the international tax system and, if implemented in a fractured manner, could cause an increasing number of cases of double taxation. During recent meetings with officials from the United Nations (UN), members of the ICC Commission on Taxation said that, while they support the BEPS Action Plan, they are concerned that it may inadvertently bring about severe collateral damage for compliant tax-paying companies of all sizes as a result of well-meaning measures undertaken unilaterally by states to mitigate double non-taxation. The ICC called for co-ordination between Governments in implementing the BEPS project deliverables to avoid inconsistencies between national tax systems. Uncoordinated actions could lead to increased risks of double taxation, more unfair competition, and increased uncertainty over the tax consequences of crossborder transactions, the ICC said, noting that such would impede and distort international trade and investment decisions. The ICC said that increased double taxation is unavoidable but that this foreseeable risk can be mitigated through a solid dispute resolution mechanism, with mandatory agreements to force competent authorities to agree on how to tax certain transactions, or – as put simply by the ICC – how to split the ‘tax cake’. Lastly, while the ICC said that it supports efforts to tackle tax fraud and evasion, it called on policymakers to clearly distinguish illegal activities from the use of lawful methods of tax planning and tax management, provided that they are aligned with commercial and economic activities. It said: “Because taxes can only be levied on the basis of laws and because countries design their own tax regimes in pursuit of differing macro-economic policy objectives, ICC underscores that companies are often encouraged to use the tax planning measures made available to them by individual Governments and should not be condemned for choosing the least costly route”. OECD To Appoint Regional Representatives For Developing Countries On 12 November 2014, the OECD released a new strategy document aimed at deepening developing countries’ involvement in the OECD’s BEPS project. The strategy is intended to support developing countries’ contribution to the technical work, by inviting about ten developing countries, including Albania, Jamaica, Kenya, Peru, Philippines, Senegal and Tunisia, to participate in meetings of the Committee on Fiscal Affairs (CFA) and its technical working groups. Several other developing countries are expected to confirm their participation in the coming weeks. As part of the OECD’s strategy, five regional networks of tax policy and administration officials will be established to co-ordinate an ongoing and more structured dialogue on BEPS issues with a broader group of developing countries. These will be situated to cover Asia, Africa, Central Europe, the Middle East, Latin America and the Caribbean. The OECD said these regional networks will play an important role in the development of ‘toolkits’ to support the practical implementation of the BEPS outcomes, and in particular the priority issues for developing countries (harmful tax breaks and the lack of comparables data for transfer pricing purposes). Lastly, these networks will act as a voice for those developing countries that seek to engage in the negotiation of the multilateral instrument to amend bilateral tax treaties, under Action 15 of the BEPS project. The African Tax Administration Forum and the Inter-American Centre for Tax Administration will continue to play a critical role in leading regional discussions on the BEPS priority issues for developing countries, and their representatives will be encouraged to participate prominently in multilateral discussions. According to a recent two-part report from the G20 Development Working Group, BEPS poses acute problems for developing countries, most of which have smaller tax bases than advanced economies and rely more heavily on corporate taxes. OECD to Revise Transfer Pricing Guidelines on Intangibles The OECD’s Action 8 BEPS report proposes a number of changes to the OECD Transfer Pricing Guidelines in an effort to align transfer pricing outcomes with value creation in the area of intangibles. The OECD aims to ensure that profits associated with the transfer and use of intangibles are appropriately allocated in accordance with — rather than divorced from — value creation. The OECD intends to develop rules to prevent BEPS by moving intangibles amongst group members. This will requirement the development of transfer pricing rules or special measures for transfers of hard-to-value intangibles, it said. The changes proposed in its Action 8 report aim to clarify the definition of intangibles, to achieve “a broad and clearly delineated definition”. The report also offers guidance for related parties, including on transactions involving intangibles and the transfer pricing treatment of local market features and corporate synergies. However, as some transfer pricing issues relating to intangibles are closely related to other issues that will be tackled as part of its broader BEPS Action Plan in 2015, final recommendations on some matters will not be released until next year. The OECD said that it is the intention of the countries involved in the BEPS project to complete these sections of the revised intangibles guidance during 2015 in conjunction with the BEPS work on risk, recharacterisation and hard to value intangibles. This 2015 BEPS work will likely include revisions to portions of Chapters I, II, VI, VIII, and IX of the Guidelines. The OECD said that “in completing the 2015 BEPS transfer pricing work, issues will be addressed in an integrated manner in order to provide coherent and consistent transfer pricing guidance across issues that involve intangibles and those that do not”. OECD Releases Report on Transfer Pricing Documentation, County-byCountry Reporting As part of its base erosion and profit shifting work, the OECD has recommended a number of enhancements to transfer pricing documentation requirements to assist tax authorities in their risk assessment and auditing activities. The OECD said introducing the transfer pricing documentation requirements proposed in its Action 13 Deliverable report will bring a number of benefits. It said that, “by requiring taxpayers to articulate convincing, consistent, and cogent transfer pricing positions, transfer pricing documentation can help to ensure that a culture of compliance is created. Wellprepared documentation will give tax administrations some assurance that the taxpayer has analysed the positions it reports on tax returns, has considered the available comparable data, and has reached consistent transfer pricing positions”. “Moreover, contemporaneous documentation requirements will help to ensure the integrity of the taxpayers’ positions and restrain taxpayers from developing justifications for their positions after the fact,” it said. To achieve these objectives, the Report confirms its earlier recommendation of a standardised, three-tiered approach to transfer pricing documentation, consisting of a master file, containing standardised information relevant for all multinational enterprise (MNE) group members; a local file, referring specifically to material transactions of the local taxpayer; and a Countryby-Country (CbC) report, containing certain information relating to the global allocation of the MNE’s income and taxes paid together with certain indicators of the location of economic activity within the MNE group. Taken together, these three documents will require taxpayers to articulate consistent transfer pricing positions, will provide tax administrations with useful information to assess transfer pricing risks, make determinations about where audit resources can most effectively be deployed, and, in the event audits are called for, provide information to commence and target audit inquiries. “This information should make it easier for tax administrations to identify whether companies have engaged in transfer pricing and other practices that have the effect of artificially shifting substantial amounts of income into tax-advantaged environments,” the OECD said. The Report recommends the adoption of uniform rules on time frames for the preparation of documentation. Namely, the OECD suggests that: The local file should be finalised no later than the due date for the filing of the tax return for the fiscal year in question The master file should be reviewed and, if necessary, updated by the tax return due date for the ultimate parent of the MNE group, and As it is recognised that in some instances final statutory financial statements and other financial information that may be relevant for the CbC data may not be finalised until after the due date for tax returns in some countries for a given fiscal year, the date for completion of the CbC report should be allowed to be extended to one year following the last day of the fiscal year of the ultimate parent of the MNE group. In a concession for multinationals, the Report states that taxpayers should not be expected to incur disproportionately high costs and burdens in producing documentation. Where a taxpayer reasonably demonstrates that either no comparable data exists or that the cost of locating the comparable data would be disproportionately high relative to the amounts at issue, the taxpayer should not be required to incur costs in searching for such data. On documentation-related penalties, the Report says also that MNEs should not be penalised for failing to submit data to which the taxpayer did not have access. However, it goes on to acknowledge the merit of penalties in incentivising compliance by MNEs with their transfer pricing obligations. Lastly, the Report calls on tax administrations to ensure that there is no public disclosure of confidential or commercially sensitive information contained in the documentation package. It suggests that countries should implement the recommendations of its ‘Keeping It Safe’ guide on the protection of confidential information exchanged for tax purposes. During the next several months, Working Party No 6 of the Committee on Fiscal Affairs (CFA) will undertake an analysis of potential mechanisms for filing and disseminating the master file and the CbC report. The implementation aspects of the CbC reporting template, in particular the modalities for filing and disseminating the information to tax administrations, will require detailed work later this year and in 2015, the OECD said. Tax Administrations Commit to Enhance MAP Co-operation At a meeting on 24 October 2014, the heads of tax administrations from 38 economies underlined their commitment to coordinated action to deal with tax administration aspects that may result from the OECD’s ongoing work on BEPS. In their communiqué released after the Ninth Meeting of the OECD Forum on Tax Administration (FTA), which brought together nearly 40 delegations, including international and regional tax organisations, the FTA member states noted that greater co-operation will be necessary to implement the results of the BEPS project. “We are taking a significant step forward in global tax cooperation. We have agreed a strategy for systematic and enhanced cooperation between our tax administrations, based on existing legal instruments that will allow us to quickly understand and deal with global tax risks whenever and wherever they arise”. The meeting discussed ways to improve the practical operation of the Mutual Agreement Procedure (MAP) laid down in tax treaties to address issues of double taxation quickly and efficiently and to meet the needs of governments and taxpayers alike. The FTA also announced a multilateral strategic plan on the MAP and invited member states to form a MAP Forum, which will be used to collectively improve the effectiveness of the MAP. “We have advanced work in this area which will be integrated with the result from the related 2015 BEPS Action Item,” the FTA noted, encouraging member states to actively participate in the relevant activities. The FTA also announced a new international platform called the JITSIC1 Network to focus specifically on cross-border tax avoidance, which will be open to all FTA member states on a voluntary basis. Set up in 2002, the FTA is the leading international body of the OECD to promote dialogue between tax authorities and to identify best practices. Poland Poland Adopts New Thin Capitalisation Rules On 17 September 2014, Polish President Bronislaw Komorowski signed into law changes to the Corporate Income Tax Law to further tighten the country’s thin capitalisation regime. The new measures will be effective from 1 January 2015. The new law substitutes the existing 3:1 debt-to-equity thin capitalisation ratio for a more stringent ratio of 1:1. New definitions have been introduced for the terms equity, loan and interest. Under the changes, a broader range of loans, including those from indirectly related parties, should now be included in the calculation. An alternative method for satisfying the thin capitalisation rules based on assets, rather than the debt-to-equity ratio, has also been introduced. Other changes approved on 17 September 2014, included the introduction of CFC rules and the expansion of transfer pricing documentation requirements to partnerships and joint ventures. South Korea South Korea’s 2015 Budget South Korea has released its 2015 Budget, which includes plans to maintain expansionary fiscal policies, funded by a review of tax incentives and measures to boost compliance. Given the fragile economic recovery being experienced in South Korea, with growth projections recently revised down to 3.7% from 4.1%, the 2015 budget proposals are said to focus on “investment in job creation, domestic consumption and the creative economy, in order to achieve sustainable growth”. Individual income tax collections are forecast to rise by 5.7%, but both corporate and value added taxes are expected to increase only marginally due to the weak economic recovery, by 0.1% and 0.8%, respectively. In addition, import duty collections are budgeted to fall by 5.1% in 2015, caused in part by lower tariffs under free trade treaties. Finance Minister Choi Kyung-hwan had confirmed recently that South Korea would maintain its stimulus measures, including a ‘no tax increase’ policy for the foreseeable future, in particular for personal and corporate income taxes. Proposed tax measures are few and far between. It is merely stipulated that those tax credits and exemptions that are found to be no longer effective will be ‘reformed,’ except for tax breaks to support small and medium-sized enterprises and lower and middle income households. The Government also plans to increase tax transparency and continue to work on revising and enacting laws to combat tax noncompliance, in particular with regards to overseas tax evasion. UK UK Defends Its Patent Box Regime David Gauke, the UK’s Financial Secretary to the Treasury, has set out the Government’s response on BEPS and in particular defended the nation’s patent box regime. The UK’s patent box regime subjects income from patents to a lower rate of corporate income tax of 10%, but has been criticised, including by the European Union. It is a key incentive that attracts multinationals to the UK. Discussing tax competition and the UK’s relative advantages, Gauke said: “The patent box was introduced to encourage innovation and to bring high value science and technology jobs and investments to the UK. It also ensures that the jobs that are already here will stay here. This policy has been widely welcomed by businesses, and the evidence of growth is already clear. GlaxoSmithKline has attributed to the patent box its additional investment of £500m (US$809m) in manufacturing in the UK, along with the creation of 1,000 new jobs and the construction of a new factory. They have gone as far as to say that the patent box has ‘transformed the way [they] see the UK as a place to invest.’ And pharmaceutical companies aren’t the only sector set to gain from this. Engineering, life sciences, manufacturing, technology and defence are all sectors who will see a positive effect from the patent box. The UK economy will see a positive effect as a result of that”. “I reject any suggestion that the UK’s patent box facilitates profit shifting... To gain the advantages of the patent box, a company must either have developed the intellectual property itself, or actively manage the commercial exploitation of the intellectual property. This is a substantial amount of activity for a business to undertake. If all a business wanted to achieve was to shift their profits in order to receive a lower tax rate, then this simply would not be worth the hassle. For this purpose, a business can find other countries’ regimes offering lower rates with less activity required.” Regimes such as the UK’s patent box regime were discussed as part of the OECD’s recommendations on harmful tax practices (under BEPS Action 5), in which the OECD recommended the adoption of one of three approaches to ensure ‘substantial activity’ in a territory to allow the income deriving from intangibles to be subject to special arrangements: a ‘value creation approach,’ a ‘transfer pricing approach,’ or a ‘nexus approach.’ Since David Gauke’s original comments, the Nexus approach has been selected. According to the OECD’s report, “The purpose of the nexus approach is to grant benefits only to income that arises from [intellectual property] where the actual research and development activity was undertaken by the taxpayer itself. This goal is achieved by defining ‘qualifying expenditures’ in such a way that they effectively prevent mere capital contribution or expenditures for substantial research and development activity by parties other than the taxpayer from qualifying the subsequent income for benefits under an [intellectual property] regime”. United Nations Developing Nations Share BEPS Experiences with United Nations The United Nations (UN) Subcommittee on BEPS Issues for Developing Countries has released feedback received from developing countries on their experience with BEPS. With a view to giving developing countries a greater voice in the OECD’s BEPS project, the Subcommittee had sought frank responses from developing nations on how BEPS affects them, what prevents them from protecting their tax bases and their views on the issues raised in the OECD BEPS Action Plan. The Subcommittee received submissions from Brazil, Chile, China, Ghana, India, Malaysia, Mexico, Singapore, Thailand, Tonga and Zambia. These countries provided answers to the following questions, which had been fielded in a UN questionnaire: How does BEPS affect your country? If you are affected by BEPS, what are the most common practices or structures used in your country or region, and the responses to them? When you consider an MNE’s activity in your country, how do you judge whether the MNE has reported an appropriate amount of profit in your jurisdiction? What are the main obstacles in assessing whether the appropriate amount of profit is reported in your jurisdiction and in ensuring that tax is paid on such profit? Countries also expressed views on a number of actions in the BEPS Action Plan that impact the source country as opposed to tax in the country of residence, which were seen as being of particular interest for developing countries. These included preventing treaty abuse; issues concerning the taxation of intangibles; limiting base erosion through the use of interest deductions; the disclosure of aggressive tax planning arrangements and transfer pricing documentation. The countries were asked: Do you agree that these are particularly important priorities for developing countries? Which of the OECD’s Action Points do you see as being most important for your country, and do you see that priority changing over time? Are there other Action Points in the Action Plan that you would include as being most important for developing countries? The responses, now available online, will be used to inform the work of the UN to represent developing countries in ongoing work in relation to the BEPS Action Plan. US US Expands FATCA Administrative Relief Provisions The Internal Revenue Service (IRS) and the US Treasury, in Notice 2014-59, announced their intention to amend certain provisions of the temporary regulations concerning the Foreign Account Tax Compliance Act (FATCA) to expand administrative relief provisions set out in Notice 2014-33. Enacted by the US Congress in 2010, FATCA is intended to ensure that US authorities obtain information on accounts provided by foreign financial institutions (FFIs) to US persons. Failure by an FFI to disclose information about their US clients will result in a requirement to withhold 30% tax on payments of US-sourced income. Notice 2014-33, allowed a withholding agent or FFI under FATCA to treat an obligation held by an entity that is issued, opened or executed on or after 1 July 2014 and before 1 January 2015, as a preexisting obligation, on certain conditions, for the purposes of the due diligence, withholding and reporting requirements under Chapter 4. While reinforcing the effective date for FATCA of 1 July 2014, the Notice was intended to provide some transitional relief for affected financial institutions. As a result, a withholding agent was allowed additional time to document an entity that is a payee or account holder with respect to the obligation to determine whether the entity is a payee subject to withholding under Chapter 4 — until 31 December 2014, if the payee is a prima facie FFI, or by 30 June 2016, in all other cases. A withholding agent would otherwise be required to document the entity by the earlier of the date a withholdable payment is made or within 90 days of the date the obligation is issued, opened or executed. The newly issued Notice 2014-59 applies to withholding agents, FFIs and payors with respect to accounts and obligations they open or enter into before 1 January 2015, and provides relief generally consistent with the aforementioned Notice 2014-33. Notice 2014-59 extends the aforementioned relief by modifying applicability dates with regards to: The standards of knowledge applicable to a withholding certificate or documentary evidence to document a payee that is an entity, and The rules under subsection 1.6049-5(c) providing the circumstances under which a withholding agent or payor may rely on documentary evidence provided by a payee instead of a withholding certificate to document the foreign status of the payee for purposes of chapters 3 and 61. Until the Treasury and the IRS issue these amendments, taxpayers may rely on this Notice regarding the modified applicability dates. US Treasury’s Inversion Work to Take a While While, earlier in August, United States President Barack Obama had confirmed his intention to act quickly to reduce tax benefits for corporate inversions by utilising his administrative regulatory powers, it now appears that the Treasury Department’s studies on the various options available to him will take some time. It has been reported that a quick proposal is unlikely given the range of possible administrative measures that could be available. While officials are working on providing details to Treasury Secretary Jack Lew of the available presidential options as soon as possible, the full range of administrative actions is, apparently, so complex that a decision is unlikely soon. As Democrats in Congress continue to seek a short-term bipartisan legislative solution, it had been expected that President Obama would look to take whatever anti-inversion measures he could. If the President is delayed in taking action, it has been pointed out that he may well not want to do anything that might prejudice future measures to be agreed in Congress, especially if legislation is then near to being agreed. For example, congressional Democrats are already pushing for the inclusion, within future legislation, of an ‘earnings stripping’ provision, which would seek to restrict the ability of an inverted company that has moved its tax residence abroad to use intergroup loans to allocate debt to the US subsidiary, and use the increased interest payable to further reduce its tax liability in the US. It has, however, also been noted that, by way of Section 385 of the Internal Revenue Code, current US law should already provide Treasury with the legal authority to write more stringent rules governing the deduction of interest expense. Other measures that have been proposed, such as increasing the minimum foreign shareholding cap to require that at least 50% of a US company’s shares are held by the foreign company’s shareholders after a merger, up from 20% currently, are outside of the President’s purview, and would need legislation. In fact, all political parties have also recognised that comprehensive tax reform legislation, to lower the corporate tax rate and to introduce a more internationally competitive tax code, is the long-term solution to corporate inversions. It is also the Republican Party’s preference, as they believe that the shortterm fixes proposed so far would be ‘punitive’ and could have unintended consequences. The President will also be aware that his use of further unilateral administrative action could incur the wrath of Republican lawmakers. Earlier this month, House of Representatives Speaker John Boehner (Republican from Ohio) wrote that “such a move sounds politically appealing, but anything truly effective would exceed his executive authority. The President cannot simply re-write the tax code himself”. Disclaimer Baker Tilly International is a worldwide network of independent accounting and business advisory firms united by a commitment to provide exceptional client service. Baker Tilly International provides no professional services to clients but acts as a member services organisation. Baker Tilly International Limited is a company limited by guarantee and is registered in England and Wales. International Tax Insight is designed for the information of users. Every effort has been made to ensure that at the time of preparation the information contained is accurate. 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