KPMG s 2013 TEI PD Day Workshop 10: Taxation Aspects of Cloud Computing

Transcription

1 KPMG s 2013 TEI PD Day Workshop 10: Taxation Aspects of Cloud Computing Date: April 11, 2013 Presenters: C.T. Ormrod / J. Bain

2 Learning Objectives At the end of this session, you will have a better understanding of: What cloud computing is about The income tax and indirect tax implications of using a cloud computing service model e-fragmentation 2

3 What is Cloud Computing? 2011 KPMG LLP, a Canadian limited liability partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative ( KPMG International ), a Swiss entity. All rights reserved. Printed in Canada.

4 A Definition Cloud Computing is: IT delivery approach that binds together: Technology Infrastructure, Applications and Internet connectivity as a defined, managed service that can be sourced in a flexible way as a service concept 4

5 An Illustration Word Software Windows Platform Computer Infrastructure 5

6 What is As a Service? Components rented over the Internet On-demand available as needed 6

7 Infrastructure as a Service There are four distinct Cloud Service Delivery Models IaaS 7

8 Platform as a Service There are four distinct Cloud Service Delivery Models PaaS IaaS 8

9 Software as a Service There are four distinct Cloud Service Delivery Models SaaS PaaS IaaS 9

10 Business Processes as a Service There are four distinct Cloud Service Delivery Models BPaaS SaaS PaaS IaaS 10

11 Examples and a growing list of providers for each service delivery model IaaS PaaS SaaS BPaaS 11

12 Cloud Computing Value Proposition to the Business Agility / Time-to-Market Cost Transparency Increased mobility of applications Forced compliance and governance 12

13 Cloud computing also shifts capital IT costs to operational costs CapEx OpEx 13

14 Cloud provisioning reduces the capital intensive nature of IT deployments Traditional Model SaaS Model Cost Years *Illustrative 14

15 Cloud Computing Value Proposition to IT Agility / Time-to-Market Reduced support footprint Service development flexibility Faster deployment of resources Green (Improved efficiency of capacity) Security 15

16 Cloud Impact on Business Virtualization of Organizations Virtualized Technology Virtualized Processes Opportunities to Leverage Commoditized Enterprise Applications and Economies of Scale Virtualized Organization Virtualized Business Models Increased Agility Greater Flexibility Faster Results Reduced Cost 16

17 Potential Benefits Just in Time Infrastructure Resource Realization Agility, Flexibility and Timeliness No Systems Lifecycle Development Technology Access Use services and technology differently 17

18 Income Tax Issues The Amazon Model (e-fragmentation) AWS (Server Farm in Virginia) Canadian Customer EDI Advertise Arm s Length Corporation ( ALC ) Process (payments) Fulfillment (shipping) 18

19 Tax Implications Commodity Tax Multiple Jurisdiction? e-fragment Constituting a Business? Location of that Business? Characterization of Payments? Withholding? Other? 19

20 Indirect Tax GST/HST Characterization Place of Supply Provincial Treatment 20

21 Indirect Tax Issues Services Property 21

22 GST/HST Place of Supply Inside or Outside Canada 22

23 GST/HST Place of Supply Which Province? 23

24 GST/HST - Exports 24

25 GST/HST - Imports 25

26 QST - Quebec = GST / HST 26

27 PST - Saskatchewan Most cloud supplies likely subject to SPST as computer services Recipients operating both in and out of SK subject to SPST to the extent computer service related to SK A computer service relates to SK where the service: Relates to a physical location, transaction, activity or contemplated transaction or activity in Saskatchewan; and Is provided to a person who resides, ordinarily resides or carries on business in Saskatchewan at the time the service is provided Allocation methods unclear 27

28 PST - Manitoba Software taxed as TPP Much narrower scope software defined as: packaged or prewritten software programs or modifications to such programs, or the right to use such programs or modifications, whether the software is delivered by disk or tape or by electronic or other means MB does not apply MRST where software resides on server located outside MB 28

29 PST British Columbia BC PST came into effect April 1, 2013 Software taxed under separate charging provision defined as: [A] software program that is delivered or accessed by any means [T]he right, whether exercised or not, to use a software program that is delivered or accessed by any means Persons carrying on business in BC acquiring software for use on or with electronic devices ordinarily situated in BC subject to BC PST on ratio of estimated usage in BC 29

30 PST British Columbia Cont d Expanded definition of telecommunication services now includes: The right, whether exercised or not, to download, view or access, by means of a telecommunication effected through an electronic device that is ordinarily situated in British Columbia, signs, signals, writing, images, sound or intelligence of any nature other than software Query whether digital storage (IaaS) could be caught under the right to view or access provision 30

31 Indirect Tax - Conclusions From an indirect tax perspective the Canadian situation is better than most Issues elsewhere (e.g., EU, USA, etc.) are less certain 31

32 Income Tax Issues Carrying on Business Withholding Cloud Provider Withholding Customer Other 32

33 Carrying on Business Meaning of Business Location of Contracts Profit Emanation Agents Extended Meaning 33

34 Income Tax Issues The Amazon Model (e-fragmentation) AWS (Server Farm in Virginia) Canadian Customer EDI Advertise Arm s Length Corporation ( ALC ) Process (payments) Fulfillment (shipping) 34

35 Withholding Cloud Provider (If ALC is Canadian, does it charge AWS withholding?) Consider treaty exemptions/reductions Right to use AWS software governed by treaty else 212(1)(d)(i)? Profit based payments 212(1)(d)(ii) (If AWS, a US company, operates in Canada) Regulation 105 may require 15% withholding by ALC And additional 9% if operates in Quebec (QTA Reg. 1015R18) 35

36 Withholding - Customer If customer purchases: Goods None (not passive income) Services Fed Reg. 105 / Quebec Reg.1015R18 212(1)(d)(ii) 212(1)(d)(iii) Intangibles Films Software/games No Book No But who collects/remits/pays? This is often a business decision 36

37 Other Income Tax Issues Offshoring Transfer Pricing Reputational Risks SR&ED 37

38 Transfer Pricing Active business? Exempt surplus? How much profit? Require functions and risk analysis Canco Offshore Cloud Business Customer 38

39 Thank You Contact Us Chuck Ormrod John Bain Partner, Tax Partner, Tax KPMG KPMG KPMG LLP, a Canadian limited liability partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative ( KPMG International ), a Swiss entity. All rights reserved. Printed in Canada.

40 This information is current to April 11, KPMG International Cooperative ( KPMG International ), a Swiss entity. Member firms of the KPMG network of independent firms are affiliated with KPMG International. KPMG International provides no client services. The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation.