In his latest movie, Quentin Tarantino – parodying Hollywood’s parody of itself – has a baddie refusing to die despite multiple wounds to her body. Finally, Leonardo DiCaprio (SPOILER ALERT) incinerates her with a flame thrower he happens to have next to his Beverly Hills swimming pool, and what’s left of her reluctantly succumbs.
Tax advisors also have a habit of never lying down. It is in their DNA to spy out loopholes in tax legislation whatever the good lawmakers throw at them. Indeed, that was never more clear to me than the first time I volunteered (for entirely client-centric reasons) to help the tax authority rewrite a terribly written professional circular. Every altered phrase brought another potential dodge.
After over four years of being knifed and shot at by the 15 Actions of the OECD’s Base Erosion and Profit Shifting (BEPS) project, earlier this month the tax profession was presented with the public consultation document on the Global Anti-Base Erosion Proposal – Pillar Two, conveniently, but outrageously, granted the acronym GloBE. Classified under Action 1 on the digitalization of the economy, it is really designed to catch anything that was missed – the victors bayonetting the wounded.
There are four parts to the proposal. The income inclusion rule means that, if a multinational group shifts income to low tax jurisdictions (or, these days, high-tax jurisdictions with low-tax loss leaders), the parent country will be forced to pick up the discarded tax. The undertaxed payments rule would either not allow a deductible expense or impose withholding tax on payments to scantily taxed related parties. The switch-over rule which, despite its debauched Hollywood-friendly name, would simply allow the ignoring of tax treaties operating the exemption rule on foreign tax (for example, not taxing the profits of a foreign branch) in favor of the credit rule, where the income is taxed and a credit given for foreign tax paid. The subject to tax rule is slated to be instituted as a back-up to thwart the plans of any smart-ass who thought he could get round the undertaxed payments rule through the wonders of a tax treaty.
The six-million-dollar-fee question is: ‘Are international tax planners about to bite the dust, go west, push up the daisies?’
What do YOU think?
The proposal, which despite my one-paragraph precis runs to 36 pages, gets lost in its own complexities. It has two significant problems: how to define profit; and how to define low-tax. The system has to be simple, so the temptation is to rely on that child of a lesser god – accounting profit. But, what is accounting profit? Those distant cousins – auditors or whatever accounting people call themselves these days – have so far not been able to settle on a single international set of financial accounting standards or generally accepted accounting principles (GAAP). So what do you do when, for example, the parent company does not consolidate under its own jurisdiction’s rules and the group is a Wild West of different systems? And what about those, oh so important, permanent and temporary differences to tax accounting that occupy our tax-crazed minds? And, when push comes to shove, what is low-tax? As the OECD and its friend the G20 have chased tax havens into a corner, the world has become more sophisticated than when Ireland drunkenly adopted a – then unheard of – 12.5% tax rate decades ago. It’s not always the statutory tax rate, stupid.
So, along with transfer pricing, it looks like international tax planning will live to fight another day – it is just going to have to reconstitute itself like in some Hollywood B-horror movie…