Off down the rabbit-hole in pursuit of the OECD/G20 BEPS project developments in a world run mad

The European migrant crisis has reached catastrophic proportions. In 2015 more than a million migrants and refugees from Syria, Afghanistan, Iraq and other Asian and African countries fled from war and conflict, to Europe. The European Union (EU) is struggling to cope with the influx, which has caused schisms in the EU over how best to deal with resettlement of these displaced persons. Some European jurisdictions have been willing to accept asylum seekers while others have responded by increasing funding for border patrol operations in the Mediterranean and re-introducing border controls within the Schengen Area.

BEPS involving interest in the banking and insurance sectors

In October 2015, the OECD BEPS Action 4 Report on Limiting Base Erosion Involving Interest Deductions and Other Financial Payments (Report) was released setting out a common approach to address BEPS involving interest and payments economically equivalent to interest. The Report included a ‘fixed ratio rule’ which limits an entity’s net interest deductions to a set percentage of its tax earnings before interest, taxes, depreciation and amortisation (tax EBITDA) and a ‘group ratio rule’ which permits an entity to claim higher net interest deductions, based on the financial ratio of its worldwide group.

OECD branches out – proposing BEPS Action 2 (neutralising the effects of hybrid mismatch arrangements) recommendations to tackle branch mismatch structures

On 22 August 2016 the OECD released Public Discussion Draft: BEPS Action 2 – Branch Mismatch Structures (Discussion Draft), which identifies and analyses mismatches that may arise through the use of branch structures. The Discussion Draft sets out preliminary recommendations for domestic rules, based on those proposed in the OECD’s Final Report on BEPS Action 2 – Neutralising the Effects of Hybrid Mismatch Arrangements (2015 Final Hybrids Report), which will hopefully neutralise the mismatches in tax outcomes arising from the exploitation of branch structures. To contextualise the Discussion Draft, it is necessary to summarise briefly the BEPS risks that BEPS Action 2 seeks to address.

OECD Request for Input on the development of a multilateral instrument to implement tax treaty BEPS measures

Author: Elsabe Strydom (ENSafrica). The Organisation for Economic Co-operation and Development (“OECD”)/G20 Base Erosion and Profit Shifting (“BEPS”) Project identified 15 actions based on the following three key themes, being: the introduction of coherence in the domestic rules that affect cross-border activities; the reinforcement of substance requirements in the existing international standards; and the improvement of transparency and certainty. In particular, the final BEPS package, released on 5 October 2015, represents a substantial overhaul of the international tax rules and once the measures become applicable, it is expected that profits will need to be reported where the economic activities that generate them are carried out and where value is created.

Can a controlled foreign company have more than one foreign business establishment?

In terms of the South African controlled foreign company (“CFC“) legislation contained in section 9D of the Income Tax Act, 58 of 1962 (the “Act“), where South African residents directly or indirectly hold more than 50% of the total participation rights (essentially, the right to participate in the benefits of the rights attaching to a share) in a foreign company, a proportional amount of the “net income” of that foreign company (as a CFC) will be included in the income of those residents. In determining the “net income” of the CFC, section 9D(9)(b) of the Act exempts, inter alia, any amount which is attributable to any foreign business establishment (“FBE”) of that CFC.

Pension funds and BEPS

Author: Magda Snyckers (Tax Director at ENSafrica). Is the current international tax focus on base erosion and profit shifting (“BEPS”) relevant for tax-exempt pension funds? In particular, should the trustees and/or administrators of pension funds take note of the finalisation by the Organisation for Economic Co-operation and Development (“OECD”) of the 15 point action plan to address BEPS? 

Transfer pricing – Consequence of year end adjustments

As all multinational groups of companies should be aware transfer pricing is a significant tax issue when operating cross border in multiple tax jurisdictions. Transfer pricing legislation exists in most established tax regimes and is becoming more and more prevalent in countries previously considered less tax sophisticated. In the context of South Africa, transfer pricing legislation has been present in the  Income Tax Act, 1962 (the Act) for a number of years and was significantly revised in 2012 to better align with the Transfer Pricing Guidelines issued by The Organisation for Economic Cooperation and Development (OECD).

Draft regulations for the implementation of Country-by-Country reporting published in South Africa

Author: Arnaaz Camay (Tax Executive at ENSAfrica). The South African Revenue Service (“SARS”) is, in accordance with section 3(2)(j) of the Tax Administration Act, 28 of 2011 (the “TAA”), responsible for giving effect to the Country-by-Country Reporting Standard for Multinational Enterprises (the “CbC Reporting Standard”) which was developed under the Organisation for Economic Co-operation and Development’s (“OECD’s“) base erosion and profit shifting (“BEPS”) Action Plan 13 – “Re-examine Transfer Pricing Documentation”. The OECD’s recommendation under Action Plan 13 was that all countries should adopt a standardised approach to transfer pricing documentation which follows a three-tiered structure consisting of a master file, a local file, and country-by-country (“CbC”) report.

International Tax – DTA with Hong Kong

The Tax Treaty (and Protocol) between Hong Kong and South Africa has been ratified by both countries with the date of entry into force from 20 October 2015. In South Africa, it was published in the Government Gazette No. 39444 on 24 November 2015. The provisions of the treaty will apply in Hong Kong for years of assessment beginning on or after 1 April 2016. In South Africa, it applies from 1 January 2016 for amounts held at source, and for years of assessment beginning on or after 1 April 2016 in respect of other taxes. In general, the treaty follows the OECD Model Tax Convention. We highlight below some of the departures from the Model and other notable clauses.

OECD Proposed expansion of “permanent establishment” definition

Author: Annalie Pinch and Nicolette Smit. During October 2015, as part of the Organisation for Economic Co-operation and Development (“OECD”)/G20 Base Erosion and Profit Shifting (“BEPS”) Project, the OECD issued its final report in respect of Action 7 “Preventing the artificial avoidance of permanent establishment status” (“BEPS Report”). In terms of Article 7(1) of the OECD’s Model Tax Convention on Income and on Capital (“Model Tax Convention”), a Contracting State will only have taxing rights in respect of the business profits of a foreign enterprise which is a resident of another Contracting State if the enterprise has a “permanent establishment” (“PE”), as defined in Article 5, in that State to which such profits are attributable.