BEPS tail shouldn’t wag global investment dog

OECDAuthor: Claire M.C. Kennedy of Bennett Jones LLP

I spoke recently on a panel in Tokyo on the future of international tax planning after BEPS (the OECD’s & G20’s Action Plan to counter Base Erosion & Profit Shifting). The panel also featured a senior official at the OECD and practitioners from the US, Japan, Germany, France, Ireland and the Netherlands

It was refreshing to hear the OECD official acknowledge that the international corporate tax planning targeted by BEPS constitutes legal arrangements and transactions and not illegal tax evasion.

Moreover, she also acknowledged that in the area of treaty-shopping, governments themselves have to take some responsibility for creating treaty shopping and arbitrage opportunities through negotiation of inconsistent treaties, for example with differing withholding tax rates on interest, dividends or royalties or capital gains exemptions that are broader in some treaties than in others. That said, the OECD is clearly determined to counter previously accepted corporate tax planning practices that reduce the effective rates of corporate tax for multinational enterprises.

The OECD released a number of draft instruments and reports on key BEPS Action Items in September, including transfer pricing documentation, hybrid mismatch arrangements, anti-treaty shopping measures and the digital economy. These reports must be finalized and the other Action Items reported upon by the fall of 2015, which means we can expect the next year to be busy. Some consultation drafts on the remaining Action Items, notably on Permanent Establishments and Transfer Pricing Guidelines on Low Value Intra-Group Services, have already been released.

While OECD member governments broadly support the overall goals of BEPS, significant differences appear to exist among them in how these goals should be achieved, particularly in what changes to domestic tax legislation or treaties are warranted and desirable. As a result, there remains considerable uncertainty about how much of the BEPS agenda will be implemented and how. There is a real concern that tax policy made in a fishbowl under political pressure will be bad tax policy but there is also a significant concern that a failure of the BEPS process will lead to irreconcilable unilateral actions on the part of governments under pressure to “do something”, resulting in double taxation and yet greater complexity both on the part of multinationals in tax compliance and revenue authorities in administration. Dollar-for-dollar, corporate tax is already one of the most expensive taxes to pay and to collect and the BEPS Action Plan should consider carefully how to reduce this burden on governments and taxpayers, not increase it.

One positive sign in terms of international co-ordination is the recent Canadian experience on anti-treaty shopping: 18 months after launching its own plan for a domestic treaty override to combat treaty shopping, the Canadian government announced at the end of August the suspension of this domestic initiative pending the release of the OECD’s draft instrument under Action 6 on anti-treaty abuse, which occurred in September.

Taking a broader perspective, it will be important for the OECD and G20 members to be mindful of the bigger picture, which is one of a wobbly global economic recovery with weak growth in many countries that will require large and sustained investments in the “real economy”. Much of that investment is, of necessity, going to be cross-border and industry and governments have a common interest in seeking an international tax framework that is efficient to comply with and enforce. Ultimately, we need to be careful not to let the BEPS tail wag the global investment dog.