Base Erosion And Profit Shifting Action Research Articles

Carbon Capture, Utilization and Storage tax credits and tax equity project financing in the USA: an assessment under bilateral tax treaties and BEPS actions

Abstract Carbon Capture, Utilization and Storage (CCUS) is a technology for capturing man-made CO2 emissions (carbon emissions) and either storing them, hopefully permanently, underground, generally in suitable saline formations or oil and gas fields, or utilizing them by, eg, converting them into commercially viable products. Because global energy demand and carbon emissions will continue to increase until 2050 by almost 50 per cent, CCUS projects (despite a current difficult business case per metric tonne stored or used), if deployed on a large scale, could help the world to limit global warming to 2.0°C, but preferably 1.5°C, as proposed by the Paris Agreement. For economic reasons, without government support, it will be difficult to have the required number and scale of CCUS projects to tackle global warming. The introduction section of this paper explains how, if we accept the urgency of the Paris Agreement’s thresholds, there is probably not sufficient time for introducing a global emissions trading scheme (ETS) or a global carbon tax, which are considered the two best approaches to reducing carbon emissions. The CCUS legal/regulatory/fiscal approach section analyses, first, the different legal/regulatory/fiscal approaches to CCUS taken by the US and the EU, secondly, the US federal tax credits available for CCUS projects as of May 2022, and thirdly, the powerful incentive mechanism created when the US CCUS tax credits work together with tax equity partnerships. The US CCUS tax credits and tax treaties section, after some initial literature review of tax incentives and how the US CCUS tax credits can be framed within the panoply of tax incentives, focuses on the first research question, ie, on understanding how the US CCUS tax credits interact in a tax treaty environment. The US CCUS tax credits and the BEPS project section plays a similar role in relation to whether the US CCUS tax credits align well with the requirements of the OECD/G20's Base Erosion and Profit Shifting (BEPS) Project, which is aimed at reducing tax avoidance and is more recent in its development. The last section concludes.

Strategic Narratives in International Tax Policy Making: BEPS Action 1 and the Stability Argument

Drawing on narrative analysis developed by communications scholars, and applied by scholars of economics and international law and in policy analysis, this article studies action 1 of the Organisation for Economic Co-operation and Development's (OECD's) base erosion and profit shifting (BEPS) project as a policy narrative. The authors outline the role of narrative in international tax policy making and evaluate the probability and the argumentative and material coherence of the OECD's story about the need to ensure the stability of the international tax framework and system. Focusing on the narrative strategy adopted by the OECD to promote its pillar one proposal, the authors assess the likely persuasiveness of the OECD's stability argument—in particular, how it may have influenced the response to the proposal by the members of the Inclusive Framework on BEPS. The authors conclude that the OECD's concern about potentially destabilizing effects of digital services taxes and similar taxes on the international income tax system propagates a global fiscal illusion, and may not sustain long-term support for pillar one by many members of the Inclusive Framework.

Country Note: Honduran Zones for Employment and Economic Development (ZEDEs) in Light of BEPS Action 5

Based on Nobel Laureate Paul Romer’s concept of charter cities and following the models of Hong Kong and Singapore, Honduras is the site of an experimental special regime called Zones for Employment and Economic Development (ZEDEs). The ZEDEs are autonomous regions with their own policies, regulations and courts. They are form of private microstate that seeks to create conditions for direct foreign investment and develop rural areas in Honduras. This article seeks to determine if the tax regimes established in the ZEDEs, according to their General Law and examples of specific statutes, are at risk of being categorized as harmful regimes based on Base Erosion and Profit Shifting (BEPS) Action 5 on Harmful Tax Practices. Tax, BEPS Action 5, Honduras, ZEDEs, Harmful Tax Practices, Special Regime

The Legitimizing Effects of the OECD's Fairness-Based Narratives

The base erosion and profit shifting (BEPS) project and the creation of the Inclusive Framework on BEPS are ambitious initiatives that could transform the Organisation for Economic Co-operation and Development (OECD) from a rich-countries club into the standard setter and a consensus facilitator on matters of global tax governance. In some areas, where the interests of many states have aligned, this transformation has already occurred. However, in highly disputed areas, such as the taxation of business profits in the digital economy or other distributive concerns, the OECD can only rely on shared values, which, if not entirely reconciling the conflicting interests of states, could at least encourage collective action. Since fairness underlies many common values, fairness-based narratives are a plausible source of soft power for the OECD and potentially a tool in facilitating tax cooperation. This article argues that this may be one possible explanation for the OECD's reliance on the concept of fairness in its BEPS documentation. Using the OECD's BEPS action 1 narrative as a case study and focusing on the social dimension of fairness, this article finds that this narrative is inconsistent with the states' narratives and is unjustified; it lacks fidelity (story integrity) and is only weakly persuasive, at least where the fairness argument is concerned. These flaws may not affect the OECD's legitimacy as a standard setter and consensus facilitator, but they may undermine the legitimacy of the OECD standards that are founded on fairness arguments, especially if those standards affect the distribution of the benefits and costs of tax cooperation.

Mismatches in Tax Outcomes in the Light of BEPS Actions 2 and 5

At present, the fight against tax evasion, currently often referred to as base erosion and profit shifting (BEPS), has become an important issue not only at the level of the OECD as well as the EU but also for governments around the globe. In this context, hybrid arrangements and existing preferential tax regimes have been identified, inter alia, as key factors for BEPS outcomes. Against this background, the purpose of this article is to critically assess the impact of the measures presented under BEPS Actions 2 and 5 on the existing mismatches thereby focusing on the question whether these proposals are likely to achieve the intended international coherence in corporate income taxation. Having examined the measures in detail, the authors are of the view that the linking rules presented by the OECD as a result of its work on BEPS Action 2 have significant potential to address the issue of hybrid mismatch arrangements, and the modified “nexus approach” developed in the course of the work on BEPS Action 5 will have some impact on the unintended mismatches connected with preferential tax regimes. However, these recommendations cope with different legal and economic environments around the globe. Bearing in mind the different tax policy considerations of sovereign tax legislators, the intended establishment of international coherence in corporate income taxation is unlikely to be achieved.

Impact of OECD Beps Action 7 Proposals on Modification of Articles 5(4), 5(5) and 5(6) of OECD Model Convention - An Evaluation of Action 7 on the Future of Intra-Group Transactions and Business Models of MNEs in their Cross-Border Investments

The notion of permanent establishment (PE) is one of the most important issues in treaty-based international fiscal law; it is perhaps the single most important and dynamic one, too. With openness in economies, globalisation and rapid development of e-commerce business models, there is a complete change in the way business is carried out throughout the world by multinational companies (MNE). Traditional ways of doing business have given way to modern and rather flexible ways of operating globally. Naturally, taxing rules need to keep up the pace at which businesses are evolving. It is extremely crucial that taxes are paid at the place where substantial activity and operations of multinationals effectively take place. To achieve this, the Organisation of Economic Co-Operation and Development (OECD) Base Erosion and Profit Shifting (BEPS) Project identifies Action 7 to prevent the issues of artificial avoidance of PE status. This Action seeks to revamp the definition and scope of PE as is currently existing in Article 5 of the OECD Model Convention on Income and on Capital. Whilst examining the recommendations of BEPS Action 7, the authors will analyse how the existing rules of Article 5(4) (dealing with preparatory and auxiliary activities), Article 5(5) (dealing with Agency PE rule) and Article 5(6) (dealing with exclusion for Independent Agents) are likely to be modified. The authors will also evaluate how these changes are likely to have an impact on Singapore’s existing treaties (if these changes are re-negotiated in existing treaties, whether bilaterally or through the BEPS Multilateral Instrument (MLI)). The paper will also shed light on how these changes could impact business models and supply chains in a post-BEPS world. It must be noted that BEPS Action 7 recommendations are proposed to give effect to the PE Article in existing treaties by way of the MLI, under development by the OECD as per BEPS Action 15 (Developing a Multilateral Instrument to Modify Bilateral Tax Treaties).

INTERPRETATION ISSUE OF THE PRINCIPAL PURPOSE TEST

The existence of tax treaties has raised a base erosion and profit shifting (BEPS) concern through the circumvention of the provisions of those treaties. Consequently, following the release of the BEPS Action 6 Final Report by the Organisation for Economic Co-operation and Development, the Principal Purpose Test (PPT) has been introduced as a general anti abuse rule (GAAR) for tax treaties. As a BEPS action minimum standard, the PPT clauses are considered sufficient to prevent tax treaty abuses. However, since there has been no sufficiently clear guidance to the PPT implementation, several interpretation issues seem to arise. This situation is likely to put uncertainties for both tax administrations and taxpayers. This article aims to provide a literature review of the PPT clauses interpretation so as to help them to further address such issues. The discussion focuses on 4 (four) main elements of the PPT, (1) the interpretation of the phrase “one of the principal purposes”; (2) the reasonableness element; (3) the object and purpose of the relevant treaty provision; and (4) the burden of proof of the PPT.

Policy Forum: Implicit Support and Its Implications on Guarantee Fee Pricing: Fact or Fiction

In recent discussions as part of the Base Erosion and Profit Shifting (BEPS) initiative, the OECD has raised a number of questions regarding financial transactions relied upon in an intragroup context. These include questions on determining the shadow credit rating, implicit support, and data to be relied upon when evaluating the arm’s length nature of financial transactions. (OECD, Public Discussion Draft Financial Transactions, BEPS Actions 8–10, (3 July – 7 Sept. 2018), https://www.oecd.org/tax/transfer-pricing/BEPS-actions-8-10-transfer-pricingfinancial- transactions-discussion-draft-2018.pdf (accessed 29 July 2019).) More recently, comments by an OECD representative have asserted that a compromise between OECD members on the issue had been reached. (See comments made on 4 June 2019 by Tomas Balco (Head of the Transfer Pricing Unit, OECD Centre for Tax Policy and Administration) during the OECD International Tax Conference in Washington DC. See J. Martin, Agreement reached on OECD transfer pricing guidelines for financial transactions, official says, MNE Tax (8 June 2019), available at (accessed on 29 July 2019).) In this respect, the OECD acknowledges that Article 9 is relevant, but confirms that domestic law has priority, except to the extent that domestic provisions discriminate. This ongoing discussion demonstrates the complexity that tax payers and tax administrators face when considering financing arrangements. Although the focus of this article is on intra-group financial guarantees in a broad sense, it focuses attention on of implicit support, a concept potentially relevant to all intra-group financial transactions. This article will also consider some of the issues currently discussed in the context of intra-group financing, including the importance and impact of implicit support on financing arrangements, from the viewpoint of tax courts, the OECD, and financial market participants. It then considers approaches used to determine the extent, if any, of implicit support by the main credit rating agencies as well as other financial market participants, and it goes on to consider the pros and cons associated with different pricing methods to assess the arm’s length level of guarantees, once credit ratings adjusted for implicit support have been derived.

Country Note: Review of Implementation of the Inclusive Framework on Base Erosion and Profit Shifting in Indonesia

Tax avoidance by multinational enterprises in Indonesia has led to a massive, ongoing loss of tax revenue. A type of tax avoidance known as base erosion and profit shifting (BEPS) has become a global issue and compelled the OECD to take measures by releasing the BEPS Action Plan and launching the BEPS Project. Indonesia declared its commitment to adopt appropriate parts of the outcome of the BEPS Project for developing countries in Indonesia’s domestic tax rules, recognized as the Inclusive Framework on BEPS or BEPS Minimum Standards. This article analyses the implementation of the BEPS Minimum Standards in Indonesia and how the government has taken action to counteract tax base erosion. The author considers qualitative research and data collected through a literature study and in-depth interviews. Indonesia is in the process of implementing the BEPS Minimum Standards, as addressing transfer pricing issues and preventing tax treaty abuse are currently particular areas of focus for the government.

A Historical Analysis of the BEPS Action Plan: Old Acquaintances, New Friends and the Need for a New Approach

In 2012, public opinion focussed on what has been called ‘aggressive tax planning of multinational enterprises’. Since then, the G20 and OECD developed the Base Erosion and Profit Shifting (BEPS) Action Plan – a phenomenon that has received enormous attention. Despite this attention, the efforts, methodology and outcomes, and the instruments used to implement them, pose very little innovation. This article analyses the issues raised by the BEPS Action Plan from a historical perspective, showing that they remain grounded on the same basis of discussions that took place decades ago. This is probably because the project was triggered by a decrease in tax revenue, and not by an actual study of the failures of the system. The only real innovation of the BEPS Project is the change in the public state of mind and attitude towards tax planning, as well as a totally new way of developing international tax rules through consensus with the participation of a broad number of countries. Future steps should take advantage of this actual innovation, get rid of previous analysis and, taking into account of the current economic situation, study (1) the structure of the tax system and tax burden; (2) the jurisdiction to tax rules and the source and residence principles; and (3) the relationship between private law and tax law, i.e. legal personality and recognition of foreign persons and contracts. Without such in-depth analysis, any changes would be changes that only deepen already existent failing principles forming the base of the current system.

The Limitation on Benefits Provision in BEPS Action 6/Multilateral Instrument: Ineffective Overreaction of Mind-Numbing Complexity – Part 2

This is the second part of a comprehensive two-part article addressing the usefulness of the limitation on benefits (LOB) provision in base erosion and profit shifting (BEPS) Action 6 and the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI) in prevention of abusive treaty shopping – the most prevalent and typical form of treaty abuse. The study concludes that the MLI LOB rule is an ineffective overreaction of ‘mind-numbing complexity’ which, despite its great potential to reflect the nature of tax treaties and treaty shopping, seems to be a lost opportunity to address that most prevalent form of treaty abuse in a targeted, effective manner. After a critical analysis, de lege ferenda conclusions will follow.

The Limitation on Benefits (LOB) Provision in BEPS Action 6/MLI: Ineffective Overreaction of Mind-Numbing Complexity – Part 1

This comprehensive two-part article addresses the usefulness of the limitation on benefits (LOB) rule in the base erosion and profit shifting (BEPS) Action 6 project and a Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI) to prevent abusive treaty shopping – the most prevalent and typical form of treaty abuse. Although a certain flexibility in the prevention of treaty abuse was envisaged by the BEPS Action 6/MLI, only twelve out of the sixty-eight Signatories to the Multilateral Instrument (MLI) have so far chosen to add the MLI’s LOB rule to the principal purposes test (PPT). Such little interest in implementing the MLI’s LOB rule may have something to do with its mind-numbing complexity. Or perhaps tax administrations simply prefer to have more discretionary power under the PPT? This study interrogates this unexplored research area by performing a comprehensive, in-depth analysis of abusive treaty shopping and the MLI’s LOB rule. The overarching question pertains to the effectiveness of the MLI’s LOB rule in the prevention of treaty shopping. In the event of critical findings, de lege ferenda conclusions will follow.

Interest Limitation Rules in the Post-BEPS Era

The use of debt is, according to the OECD, one of the simplest profit-shifting techniques available in international tax planning, due to the mobility of money. A debt tax planning strategy can be applied without any people or machinery being moved or re-allocated; it can be done by advisors or in-house specialist sitting at their desks. These (lawful) tax planning strategies undermine the fairness and integrity of tax systems, because multinational entities can use Base Erosion and Profit Shifting (BEPS) strategies to gain a competitive advantage over domestic entities, as well as undermining voluntary compliance by all taxpayers, according to the OECD. The focus in the OECD BEPS project and the Anti-Tax Avoidance Directive (ATAD) is to counteract these tax planning strategies to ensure taxation where the value is created (economic activity). This article focuses on one anti-tax avoidance measure: interest limitation rules as addressed in BEPS action 4 and in ATAD Article 4. The aim of the article is to address the need for interest limitation rules, analyse the recommend approached in BEPS action 4, analyse the minimum interest limitation rule in the EU according to Article 4 in ATAD, and the implications of OECD action 4 and ATAD Article 4. Lastly, the article will discuss alternatives to these interest limitation rules as a way to address BEPS.

China and the Future of the International Tax Regime

The International tax regime (ITR) has been transformed after the Great Recession of 2008-2009. The G20/Organization for Economic Cooperation and Development (OECD)’s Base Erosion and Profit Shifting (BEPS) project (2013-2015) has fundamentally changed the ITR, giving new life to the single tax principle (income should be taxed once, i.e. no double taxation and no double non taxation). Reaction to BEPS has varied dramatically between the EU and the US, the two largest markets in the world. In the EU BEPS is taken very seriously, as shown for example by the new Anti Tax Avoidance Directives that implement the single tax principle. In the US BEPS is almost invisible; while the US model tax treaty has been amended to incorporate it the US has refused to sign the Multilateral Instrument to implement BEPS in its treaties and the only other BEPS action that the US has taken is country by country reporting. It thus appears that the future of BEPS and the ITR depends on whether the EU or the US view prevails, i.e., whether multinationals can be forced to pay significant tax on the 160-220 billion that are currently not taxed annually because of BEPS. While US multinationals as well as EU multinationals are exposed to the EU ATAD and related measures while operating in Europe, they are less subject to EU anti BEPS measures elsewhere in the world. It therefore is crucial to assess the reaction to BEPS in the other large economy that was involved in its development, namely China. The following article attempts to assess China’s reaction to BEPS based on Chinese sources. It shows that China takes BEPS seriously. Therefore, given the reactions of China (as well as India, which is even more aggressive that China for example in taxing the digital economy) it seems likely that eventually the EU view of BEPS will prevail and US based multinationals will eventually be forced to pay tax on the over 100 billion they shift offshore each year.

GAARs and Treaties: From the Guiding Principle to the Principal Purpose Test. What Have We Gained from BEPS Action 6?

The issue of General Anti-Avoidance Rules (GAARs) and treaties is a legal problem as old as double tax conventions themselves. However, the Base Erosion and Profit Shifting (BEPS) Project, materialized in fifteen Actions and particularly in the Final Report of BEPS Action 6, involves a radical change in the very physiognomy of the problem. Apart from the inclusion of a Limitation-on-benefits rule in the OECD Model, the most groundbreaking innovation arising from BEPS Action 6 would be the incorporation, also to the Model, of a GAAR (the Principal Purpose Test). This article will examine the pros and cons of the Principal Purpose Testvis á vis the old paradigm. It also seeks to analyse some new problems originating from the very existence of the PPT.

Preventing Tax Arbitrage via Hybrid Mismatches: BEPS Action 2 and Developing Countries

The Organization for Economic Cooperation and Development (OECD) under Base Erosion and Profit Shifting (BEPS) Action 2 indicated that tax arbitrage via hybrid mismatch arrangements result in a substantial erosion of the taxable bases of the countries concerned and have an overall negative impact on competition, efficiency, transparency and fairness. The relevant action allowing for neutralising the effects of hybrid mismatch arrangements is therefore needed and justified. To achieve that purpose, the OECD developed different anti-hybrid rules under BEPS Action 2. In that regard, however, one may ask whether addressing tax arbitrage via hybrid mismatches as proposed by the OECD is of interest and relevance for developing countries. This paper aims to map that unexplored research area by means of a comparative analysis in four developing countries - Uruguay, Colombia, Brazil, and South Africa.

BEPS Action Plan: Global Tax Cooperation

Given the dynamics of economic and financial globalization, national tax authorities often do not have adequate tools to effectively combat tax avoidance practices that exploit gaps in the existing tax rules. To address the global problem of tax base erosion and profit shifting (BEPS), the Organisation for Economic Co-operation and Development (OECD) and the Group of 20 (G20) have consolidated their efforts on an equal footing. Their joint BEPS Action Plan allowed to involve more than 100 countries, both developing and advanced, in designing and implementing rules aimed at aligning the generation of profits and their taxation and increasing the predictability, transparency and flexibility of the international tax environment for business.This article examines the history of the BEPS project, emphasizing the mode of OECD-G20 engagement in global tax governance, describes the key recommendations made by international institutions to tackle BEPS and forecasts further developments in the area. The author pays special attention to the mechanisms designed to stimulate participation by non-OECD and non-G20 members in the BEPS project and the stance of business on the proposed reforms. He concludes that the work on BEPS is far from finished. Different interpretations of standards, risks of strengthening tax competition between countries and potentially excessive tax burdens on businesses should be addressed. In this regard, OECD and G20 should strengthen their efforts to ensure the participation of developing countries and the private sector, which would stimulate other reforms in international taxation to support global growth and development.

Base Erosion and Profit Shifting and Business Restructurings

In anticipation of the release of the new Chapter IX of the Organisation for Economic Co-operation and Development (OECD) Transfer Pricing Guidelines, this article looks at the potential impact that the outcome of the Base Erosion and Profit Shifting (BEPS) project will have on business restructurings. Specifically, the article examines some of the areas of convergence and divergence between the 2010 version of Chapter IX and the new guidance issued under the BEPS Actions 8–10 Final Reports (Aligning Transfer Pricing Outcomes with Value Creation). Whilst the new guidance arising from Actions 8–10 is anticipated to offer additional clarifications in the area of business restructurings, we note that there are additional areas of complexity which are likely to lead to increased controversy for multinational enterprises (MNEs), with double taxation as an inevitable result.

Group Structuring and Profit Repatriation

This article is based on a presentation at the Uppsala conference on Base Erosion and Profit Shifting (BEPS) and its impact on business models, 16–17 June 2016. While discussing the impact from the several BEPS Actions in general terms, the author focuses on the principle purpose test and its potential application on holding companies. He argues that avoiding the multiple or recurrent taxation of profits in the corporate section may conform to the object and purpose of a tax treaty, and that this issue should be further developed in the continued work on BEPS.

The Business Views on Base Erosion and Profit Shifting and Its Implementation in the Group of Twenty and European Union

To decrease uncertainty and the risk of juridical double taxation, base erosion and profit shifting (BEPS) must be implemented and administered in a uniform way globally. Unfortunately, the European Union (EU) countries have embarked on a diverting path, with additional measures taken and with their own interpretation of some BEPS action points. The Directive (Anti-Tax Avoidance Directive) is furthermore a minimum standard for individual countries to be adjusted as individual Member States see fit. In the United States, on the other hand, there is considerable hesitation to introduce measures not already enacted earlier. Many countries in Asia have adopted a wait and see approach. The new and clarified rules of how to split taxable profit between countries will also be used in administrative procedures like state aid investigations in the EU. The Organisation for Economic Cooperation and Development (OECD), at request of Group of Twenty (G20), is aiming for uniformity but faces a tremendous challenge. An increase in tax disputes between countries is to be expected.