BEPS and the Digital Economy

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1

2 BEPS and the Digital Economy

3 Panelists Edouard Marcus, Deputy Director of International and European Affairs, French Ministry of Finance Robert B. Stack, Deputy Assistant Secretary for International Tax Affairs, U.S. Treasury Tizhong Liao, Director General of International Taxation, State Administration of Taxation, People s Republic of China Bill Sample, Corporate Vice President Worldwide Taxes, Microsoft Jesse Eggert, Senior Advisor, BEPS Project, OECD

4 Outline Background Discussion Draft Consultation/Business Reaction From discussion draft to final report

5 Background

6 Tax Challenges of Digital Economy Action 1: Identify the main difficulties that the digital economy poses for application of existing international tax rules Develop detailed options to address these difficulties Work will require thorough analysis of business models in this sector

7 Outputs and Work Progress Expected output is an in-depth report identifying issues raised by the digital economy and possible actions to address them To be delivered September Work carried out by newly-created Task Force on the Digital Economy, a subsidiary body of the CFA. Produced Public Discussion Draft March 24

8 Discussion Draft

9 Discussion Draft Reflects preliminary consideration of the issues since publication of the Action Plan and seeks to identify issues for public comment Includes analysis of digital economy, its key characteristics, BEPS issues raised by the digital economy, broader tax challenges, and preliminary discussion of options to address those tax challenges

10 ICT and its Impact on the Economy Rapid technological progress has brought prices down, meaning that information and communications technology can be applied throughout economy at low cost Advances in personal computing hardware, telecommunications, software, content, use of data (including personal data), cloud-based computing These new technologies have spread throughout the economy

11 Spread of ICT Across All Sectors Not possible to ring-fence the digital economy as a separate sector. Due to advances in technology and falling prices, ICT has permeated nearly every aspect of the modern economy, transforming industry from the high-tech to the traditional. But there are new business models that can be identified, and key features that warrant further attention

12 Key Features Identified in Discussion Draft Mobility Intangibles Users Business Functions Reliance on Data Network Effects Multi-Sided Business Models Tendency toward Monopoly/Oligopoly Volatility

13 Emergence and Growth of New Business Models Electronic Commerce (B2B, B2C, C2C) App Stores Online Advertising Cloud Computing Payment Services High-Frequency Trading Participative Networked Platforms

14 Questions raised in Discussion Draft Is it possible to ring-fence the digital economy? If not, can specific types of digital transactions be identified and addressed through specific rules? Should other key features be taken into account? Are there other business models that should be considered?

15 Opportunities for BEPS in the Digital Economy Coordinated BEPS strategies with respect to income tax Minimization of tax in market country by avoiding PE, or by shifting profits or maximizing deductions Low/no withholding tax at source Low/no taxation at level of recipient (through low-tax jurisdictions, preferential regimes, or hybrid mismatch arrangements) No current taxation at level of ultimate parent

16 BEPS Planning in the Context of Income Tax Market Country (High Tax) Avoid Taxable Presence OR Minimize Assets/Risks Maximize Deductions Local Activity Or Sub Low or no Withholding tax Low Tax Intermediate Country Intermediate Sub 2 Maximize Assets Functions & Risks Intermediate Country (High Tax) Low or no Withholding tax Intermediate Sub 1 Preferential Regime OR Hybrid Mismatches OR Base Eroding Payments Ultimate Residence Country (High Tax) Ineffective/No CFC Rules Parent Co Minimize Assets/Risks Maximize Deductions

17 Opportunities for BEPS with respect to VAT Remote digital supplies to exempt businesses Remote digital supplies to a multi-location enterprise

18 Illustration of BEPS Planning with respect to VAT High VAT Country Low/No VAT Country Multinational Bank Acquires Services From Branch 1 (no VAT on internal cost allocations) High VAT Country Acquires Services Used In Worldwide Operations Branch 1 Branch 2 Acquires Services From Branch 1 (no VAT on internal cost allocations)

19 Tackling BEPS in Digital Economy No unique BEPS issues identified in digital economy But key features (mobility in particular) may exacerbate opportunity to take advantage of BEPS structures Work on other action items will restore taxing rights in both market and ultimate parent jurisdiction

20 Tackling BEPS Restoring Taxation in Market Jurisdiction Prevent Treaty Abuse (Action 6) and Artificial Avoidance of PE Status (Action 7) Restoring taxation in both market and parent jurisdiction Hybrid mismatch arrangements (Action 2) Limit base erosion (Actions 4 and 9) Counter HTP (Action 5) Transfer pricing (Actions 8-10) Restoring taxation in jurisdiction of ultimate parent: Strengthen CFC Rules (Action 3) Addressing BEPS in the area of consumption taxes (current work on VAT/GST)

21 Questions raised in Discussion Draft Will the measures developed through the BEPS Project and current work on VAT/GST address BEPS in the digital economy? Should other measures be developed during the work on other aspects of the BEPS Action Plan to address BEPS concerns in the digital economy? If so, what should they be?

22 Broader Tax Challenges In addition to BEPS issues, action plan identified several broader challenges: Nexus: Reduced need for extensive physical presence raises questions about whether current rules are effective Data: Increased collection and use of data raises questions about appropriate attribution of value from generation of data, and how to characterize supply of data for tax purposes Characterization: Uncertainties about characterizing income earned through new business models, including cloud computing VAT Collection: Challenges for collection of VAT in cross-border services, particularly B2C

23 Options Report initially discusses a few options considered, including: Modification of exemptions from PE status New PE standard based on Significant Digital Presence Virtual PE options identified in TAG work Withholding Tax on Digital Transactions VAT Options Work on Imports of Low Valued Goods Remote Digital Supplies to Consumers

24 Questions raised in Discussion Draft How should the broader tax challenges raised by the digital economy be addressed, taking into account both direct and indirect taxations Thoughts on the options discussed by the Task Force and summarized in the discussion draft Whether the Ottawa principles are an appropriate framework for addressing the tax challenges, and whether they should be supplemented

25 Consultation & Business Reaction

26 Consultation Consultation: Comments on Discussion Draft due 14 April Public Consultation April 23 G20 International Tax Symposium, Tokyo, May 9-10

27 Business Reaction: Discussion Draft Likes No separate taxation regime for DE Not possible to ring-fence the DE Necessary to evaluate the impact of the other Action Items on the DE before considering special rules for the DE Action Item #1 should be Action Item #15 Special rules may be unnecessary Ottawa Taxation Framework principles still relevant and can constitute the basis for evaluating options to address the tax challenges of the DE

28 Business Reaction: Discussion Draft Likes (cont d) Digitalization of the economy has made the DE and larger economy generally indistinguishable Consideration of the appropriate role for VAT in taxing the DE

29 Business Reaction: Discussion Draft Concerns Market jurisdiction income taxation rights based solely on sales into the jurisdiction VAT/GST are the appropriate taxes to impose on consumption Inconsistent position for allocation of IP value between Discussion Draft (virtual, dematerialized ) and Intangibles Revised Discussion Draft (significant people functions) A virtual PE has no men and no dogs Moving from ALP towards formulary apportionment Increased integration of value chain Increased reliance on profit split methods Comparables supposedly not available???

30 Business Reaction: Discussion Draft Concerns (cont d) CFC rules targeting income typically earned in DE Internet/cloud technology has made remote selling pervasive in the modern economy Discussion Draft asserts that traditional models of doing business in market economies are obsolete DE models are general extensions of legacy business models DE companies still require people, assets and functions creating taxable presence in significant jurisdictions

31 Business Reaction: Options Should be evaluated under Ottawa Taxation Framework principles Neutrality Efficiency Certainty and simplicity Effectiveness and fairness Flexibility

32 Business Reaction: Options (cont d) Potential changes to article 5(4): Modifications, if any, should be limited to situations where an Article 5(4) activity is an enterprises primary source of revenue Article 5(4)(f) already provides a rule requiring combined activities to be preparatory or auxiliary Violates most of the Ottawa principles Inefficient to administer, calculate, and collect tax will increase costs without equivalent direct tax benefit (low value activities) Subjective judgments, on a case-by-case basis, create uncertainty and add complexity Will increase disputes over whether activities are preparatory or auxiliary Neutral if applied to all enterprises, flexible because determination is case-by-case

33 Business Reaction: Options (cont d) Alternative nexus test for fully dematerialized business: ring-fencing the digital economy Violates Ottawa principles Not a neutral application of the PE rules targets pure-play DE companies Administration, calculation and collection from a virtual entity inefficient for low tax yield Few, if any, businesses have no physical attributes so uncertain how this would apply How would FAR analysis be applied? Ineffective and unfair by imposing tax where no value is created based on remote sales Application focuses on pure-play DE company characteristics which may not be adaptable to changing models

34 Business Reaction: Options (cont d) Virtual PE: Conflicts with DD statement that it is not possible to separately define DE But will apply to many businesses (website hosting and online contracting not uncommon) Significant departure from the physical presence standard Violates all Ottawa principles Not neutral different tax consequences for ecommerce and conventional commerce Inefficient significant compliance and administration costs for negligible revenue Uncertain profit attribution to a virtual PE? Unfair imposes a tax on any enterprise using a local web hosting provider Inflexible applied by reference to current technical features of ICT that will change

35 Business Reaction: Options (cont d) Withholding tax: Conflicts with DD statement that not possible to separately define DE Contrary to prior characterizations of ecommerce payments as business profits creating significant characterization disputes and double taxation Revenue poor proxy for profit Violates most Ottawa principles Inefficient to administer withholding tax for B2C transactions Not neutral specifically targets ecommerce Uncertain due to subjective characterization issues Unfair discriminates against low-margin taxpayers May be a simple blunt instrument

36 Business Reaction: Options (cont d) VAT Appropriate tax to impose by reference to the place of consumption Does not change balance between source and residence taxation Require non-resident supplier to register and account for supplies into the jurisdiction Need simplification for registration and reporting, consumer location Work on EU Directive for ESS provides helpful guidance Companies know their revenue number and the billing address of their customer

37 Business Reaction: Options (cont d) VAT Best balance of pros and cons under Ottawa principle Pro/con - Certainty and simplicity - allows suppliers and consumers to anticipate tax consequences, but extraterritoriality facilitates noncompliance Pro/con- Effective and fairness does not have a distortive effect on commerce, but imposes tax on nonresidents with no business activity Pro - Flexible applies purely by reference to consumption Con Neutrality applies only to digital supplies of nonresidents Con Efficiency administrative burden will be high for amount of tax collected on low-value transactions

38 From Discussion Draft to Final Report

39 From Discussion Draft to Final Report Further discussion of challenges/options Framework for analyzing options, building on Ottawa Framework conditions of Neutrality, Efficiency, Certainty & Simplicity, Effectiveness and Fairness, and Flexibility Managing interaction between BEPS and broader challenges Discussion of fundamental principles of taxation

40 Additional Questions The Sydney Statement by the G20 Finance Ministers provided that Profits should be taxed where economic activities deriving the profits occur and where value is created. How should this be taken into account in the work on the digital economy? Can BEPS issue be completely segregated from broader tax challenges related to allocation of taxing rights in the digital economy? If not, how should that interaction be handled, and what fundamental principles should inform the discussion?