Press release

Base Erosion Profit Shifting - The end of the beginning…

Peter Legge Peter Legge

Background

Today’s release by the OECD of its global tax anti-avoidance “BEPS” report marks the culmination of over two years of work.

The project’s origins can be found in the public disquiet over the tax practices of multinational groups, with the OECD mandated by the G8 to create a new set of global tax rules to combat perceived tax avoidance strategies. For the first time the public were presented with the notion of “immoral” tax strategies, as opposed to illegal tax strategies.

The goal of the BEPS project is to come up with a new set of global tax rules that fundamentally alters the global tax landscape. A key BEPS objective is to align taxable profits with real economic activity. The ability to move profits to a tax haven jurisdiction with little or no real activity is an example of what BEPS is seeking to challenge. Transfer pricing is a fundamental part of the BEPS report, with a focus on the global supply chain and how profits should be allocated amongst companies in a group. The theme is consistently one of aligning taxable profits with substance.

Tax mismatches are also in the spotlight, including where a payment is tax deductible in one country but not taxable in another. More broadly, BEPS seeks to improve transparency and the exchange of information between countries so that tax avoidance becomes more difficult.

It’s important to note that the OECD doesn’t set laws or sign tax treaties – governments do. The effectiveness of the BEPS project will be determined by its widespread and consistent implementation. We are likely to see significant variation in the timing of implementation and also in the interpretation of how the rules are to be applied.

What happened today

So what has been achieved today? What we are presented with is a series of detailed reports setting out ways to significantly alter the existing global tax rules. In many cases, more work is needed before the exact nature of the revised landscape becomes clear. This work will continue into 2016 and 2017. In other cases however, there is already agreement on change, with for example many of the new transfer pricing reporting obligations already agreed and due to be effective from 1 January 2016.

What is also clear is that the tax world has been changing for some time. Over the last couple of years, several countries have implemented unilateral changes within the “spirit of BEPS”. While these changes were aimed at tackling tax avoidance, it would be extremely difficult for a multinational group to deal with multiple unilateral changes across all of the jurisdictions in which it operated. It would be far more efficient if the changes were all kept under the one roof, which is the objective of the BEPS project. Anything less will simply create more anomalies, more loopholes and more uncertainty.

It is this consensus on implementation that poses the biggest challenge for the OECD. A Grant Thornton global survey of business leaders found less than a quarter who believed that there will be a global agreement on BEPS. This is a worrying statistic that reflects the perceived difficulties with implementation of many of the desired changes.

What’s also interesting from the Grant Thornton survey is that 74% of business leaders would welcome more global co-operation and guidance from tax authorities. They would like to know what is acceptable and what is unacceptable from a tax planning perspective, even if this provided less opportunity to reduce tax liabilities. This is a fascinating insight and certainly not likely to have been the outcome five years ago.

BEPS and Ireland

The first thing to note is that BEPS will have no impact on Ireland’s 12.5% tax rate. Minister Noonan stressed that point this afternoon when outlining how Ireland had fully participated in the BEPS project from its inception.

The key BEPS objective of aligning taxable profits with real economic activity can be a positive for Ireland as multinational groups operating here have substance.

In the post BEPS future, many groups operating across borders will have higher tax bills. The easiest way to reduce their tax bill is to move activities to a country with a low tax rate. Given that Ireland was also ranked by Forbes in 2013 as the best country in which to do business, we could see the BEPS project result in further increases in foreign investment here.

On the risk side, the competitiveness of our tax regime is likely to be threatened by other countries reducing their corporate tax rates. It is surprising that the UK has been one of the few large economies to reduce its corporate tax rate significantly in recent years. The reduction in the UK’s rate has allowed the UK offer a much more compelling proposition to overseas investors and we are likely to see other countries follow suit.

In this environment, we need to remain innovative in our thinking. It will be disappointing if the tax rate applicable to the new Knowledge Development Box is 6.5%, as has recently been speculated. Countries such as the Netherlands and Luxembourg offer closer to a 5% rate for the equivalent regime.

While competing regimes may not yet be BEPS compliant, Ireland needs to make a statement that it is serious about attracting high value add Research and Development activity to the country. A 5% tax rate would affirm that commitment; we will find out next week on Budget Day what the Minister has decided is the appropriate level.

Conclusion

International tax rules clearly need to be stripped down and rebuilt for the world we live in, which is the objective of BEPS. But there are tricky waters to navigate. It may be some time before genuine clarity over acceptable tax planning emerges, so it is vital that businesses understand the potential risks and are able to justify their decisions.

For Ireland, the focus on real substance can be a positive for further international investment here. However we’ll need to remain nimble in the coming years as many countries are likely to seek to replicate elements of our successful tax regime.