ⓘ Base erosion and profit shifting

                                     

ⓘ Base erosion and profit shifting

Base erosion and profit shifting refers to corporate tax planning strategies used by multinationals to "shift" profits from higher-tax jurisdictions to lower-tax jurisdictions, thus "eroding" the "tax-base" of the higher-tax jurisdictions.

The Organisation for Economic Co-operation and Development OECD define BEPS strategies as also "exploiting gaps and mismatches in tax rules"; however, academics proved corporate tax havens, who are the largest global BEPS hubs, use OECD–whitelisted tax structures and OECD–compliant BEPS tools.

Corporate tax havens offer BEPS tools to "shift" profits to the haven, and additional BEPS tools to avoid paying taxes within the haven e.g. Irelands "CAIA tool". BEPS tools are associated mostly with U.S. technology and life science multinationals. Tax academics showed use of the BEPS tools by U.S. multinationals, via tax havens, maximised long–term U.S. exchequer receipts and shareholder return, at the expense of others.

                                     

1. Scale

In January 2017, the OECD estimated that BEPS tools are responsible for tax losses of circa $100–240 billion per annum. In June 2018, an investigation by tax academic Gabriel Zucman et alia, estimated that the figure is closer to $200 billion per annum. The Tax Justice Network estimated that profits of $660 billion were "shifted" in 2015 due to Apples Q 2015 leprechaun economics restructuring, the largest individual BEPS transaction in history. The effect of BEPS tools is most felt in developing economies, who are denied the tax revenues needed to build infrastructure.

Most BEPS activity is associated with industries with intellectual property "IP", namely Technology, and Life Sciences see here. IP is described as the raw materials of tax avoidance, and IP–based BEPS tools are responsible for the largest global BEPS income flows. Corporate tax havens have some of the most advanced IP tax leglislation in their statute books.

Most BEPS activity is also most associated with U.S. multinationals, and is attributed to the historical U.S. "worldwide" corporate taxation system. Pre the Tax Cuts and Jobs Act of 2017 TCJA, the U.S. was one of only eight jurisdictions to operate a "worldwide" tax system. Most global jurisdictions operate a "territorial" corporate tax system with lower tax rates for foreign sourced income, thus avoiding the need to "shift" profits i.e. IP can be charged directly from the home country at preferential rates and/or terms; post the 2017 TCJA, this happens in the U.S. via the FDII-regime.

U.S. multinationals use tax havens more than multinationals from other countries which have kept their controlled foreign corporations regulations. No other non–haven OECD country records as high a share of foreign profits booked in tax havens as the United States. This suggests that half of all the global profits shifted to tax havens, are shifted by U.S. multinationals. By contrast, about 25% accrues to E.U. countries, 10% to the rest of the OECD, and 15% to developing countries Torslov et al., 2018.

Research in June 2018 identified Ireland as the worlds largest BEPS hub. Ireland is larger than the aggregate Caribbean tax haven BEPS system. The largest global BEPS hubs, from the Zucman–Torslov–Wier table below, are synonymous with the top 10 global tax havens:

† Mostly consists of The Cayman Islands and The British Virgin Islands

Research in September 2018, by the National Bureau of Economic Research, using repatriation tax data from the TCJA, said that: "In recent years, about half of the foreign profits of U.S. multinationals have been booked in tax haven affiliates, most prominently in Ireland 18%, Switzerland, and Bermuda plus Caribbean tax havens 8%–9% each. One of the authors of this research was also quoted as saying, "Ireland solidifies its position as the #1 tax haven. U.S. firms book more profits in Ireland than in China, Japan, Germany, France & Mexico combined. Irish tax rate: 5.7%."

                                     

2. Tools

Research identifies three main BEPS techniques used for "shifting" profits to a corporate tax haven via OECD–compliant BEPS tools:

BEPS tools could not function if the corporate tax haven did not have a network of bilateral tax treaties that accept the haven’s BEPS tools, which "shift" the profits to the haven. Modern corporate tax havens, which are the main global BEPS hubs, have extensive networks of bilateral tax treaties. The U.K. is the leader with over 122, followed by the Netherlands with over 100. The "blacklisting" of a corporate tax haven is a serious event, which is why major BEPS hubs are OECD-compliant. Ireland was the first major corporate tax haven to be "blacklisted" by a G20 economy: Brazil in September 2016.

An important academic study in July 2017 published in Nature, "Conduit and Sink OFCs", showed that the pressure to maintain OECD–compliance had split corporate–focused tax havens into two different classifications: Sink OFCs, which act as the terminus for BEPS flows, and Conduit OFCs, which act as the conduit for flows from higher–tax locations to the Sink OFCs. It was noted that the five major Conduit OFCs, namely, Ireland, the Netherlands, the United Kingdom, Singapore and Switzerland, all have a top–ten ranking in the 2018 Global Innovation Property Centre GIPC IP Index".

Once profits are "shifted" to the corporate tax haven or Conduit OFC, additional tools are used to avoid paying headline tax rates in the haven. Some of the tools are OCED–compliant e.g. patent boxes, Capital Allowances for Intangible Assets "CAIA" or "Green Jersey"), others became OECD–proscribed e.g. Double Irish and Dutch Double–Dipping, while others have not attracted OECD attention e.g. Single Malt.

Because BEPS hubs or Conduit OFCs need extensive bilateral tax treaties e.g. so that their BEPS tools will be accepted by the higher–tax locations, they go to great lengths to obscure the fact that effective tax rates paid by multinationals in their jurisdiction are close to zero percent, rather than the headline corporate tax rate of the haven see Table 1. Higher–tax jurisdictions do not enter into full bilateral tax treaties with obvious tax havens e.g. the Cayman Islands, a major Sink OFC. That is achieved with financial secrecy laws, and by the avoidance of country–by–country reporting "CbCr" or the need to file public accounts, by multinationals in the havens jurisdiction. BEPS hubs or Conduit OFCs strongly deny they are corporate tax havens, and that their use of IP is as a tax avoidance tool. They call themselves "knowledge economies".

Make no mistake: the headline rate is not what triggers tax evasion and aggressive tax planning. That comes from schemes that facilitate profit shifting.

The complex accounting tools, and the detailed tax legislation, that corporate tax havens require to become OECD–compliant BEPS hubs, requires both advanced international tax–law professional services firms, and a high degree of coordination with the State, who encode their BEPS tools into the States statutory legislation. Tax investigators call such jurisdictions "captured states", and explain that most leading BEPS hubs started as established financial centres, where the necessary skills and State support for tax avoidance tools, already existed.

                                     

3. Agendas

The BEPS tools used by tax havens have been known and discussed for decades in Washington. For example, when Ireland was pressured by the EU–OECD to close its double Irish BEPS tool, the largest in history, to new entrants in January 2015, existing users, which include Google and Facebook, were given a five-year extension to 2020. Even before 2015, Ireland had already publicly replaced the double Irish with two new BEPS tools: the single malt as used by Microsoft and Allergan, and capital allowances for intangible assets "CAIA", also called the "Green Jersey", as used by Apple in Q1 2015. None of these new BEPS tools have been as yet proscribed by the OECD. Tax experts show that disputes between higher-tax jurisdictions and tax havens are very rare.

Tax experts describe a more complex picture of an implicit acceptance by Washington that U.S. multinationals could use BEPS tools on non–U.S. earnings to offset the very high U.S. 35% corporate tax rate from the historical U.S. "worldwide" corporate tax system see source of contradictions. Other tax experts, including a founder of academic tax haven research, James R. Hines Jr., note that U.S. multinational use of BEPS tools and corporate tax havens had actually increased the long–term tax receipts of the U.S. exchequer, at the expense of other higher–tax jurisdictions, making the U.S a major beneficiary of BEPS tools and corporate-tax havens.

Lower foreign tax rates entail smaller credits for foreign taxes and greater ultimate U.S. tax collections Hines and Rice, 1994. Dyreng and Lindsey 2009, offer evidence that U.S. firms with foreign affiliates in certain tax havens pay lower pay lower foreign taxes and higher U.S. taxes than do otherwise-similar large U.S. companies.

The 1994 Hines–Rice paper on U.S. multinational use of tax havens was the first to use the term profit shifting. Hines–Rice concluded, "low foreign tax rates ultimately enhance U.S. tax collections". For example, the Tax Cuts and Jobs Act of 2017 "TCJA" levied 15.5% on the untaxed offshore cash reserves built up by U.S. multinationals with BEPS tools from 2004–2017. Had the U.S. multinationals not used BEPS tools and paid their full foreign taxes, their foreign tax credits would have removed most of their residual exposure to any U.S. tax liability, under the U.S. tax code.

The U.S. was one of the only major developed nations not to sign up to the 2016 § OECD BEPS Project to curtail BEPS tools.



                                     

4. Failure of OECD 2012–2016

The 2012 G20 Los Cabos summit tasked the OECD to develop a BEPS Action Plan, which 2013 G-20 St. Petersburg summit approved. The project is intended to prevent multinationals from shifting profits from higher- to lower-tax jurisdictions. An OECD BEPS Multilateral Instrument, consisting of 15 Actions designed to be implemented domestically and through bilateral tax treaty provisions, were agreed at the 2015 G20 Antalya summit.

The OECD BEPS Multilateral Instrument "MLI", was adopted on 24 November 2016 and has since been signed by over 78 jurisdictions. It came into force in July 2018. Many tax havens opted out from several of the Actions, including Action 12 Disclosure of aggressive tax planning, which was considered onerous by corporations who use BEPS tools.

Global legal firm Baker McKenzie, representing a coalition of 24 multinational US software firms, including Microsoft, lobbied Michael Noonan, as proposals in January 2017. In a letter to him the group recommended Ireland not adopt article 12, as the changes" will have effects lasting decades” and could" hamper global investment and growth due to uncertainty around taxation”. The letter said that" keeping the current standard will make Ireland a more attractive location for a regional headquarters by reducing the level of uncertainty in the tax relationship with Ireland’s trading partners”.

The acknowledged architect of the largest ever global corporate BEPS tools e.g. Google and Facebooks Double Irish and Apples Green Jersey, tax partner Feargal ORourke from PriceWaterhouseCoopers "PwC, predicted in May 2015 that the OECDs MLI would be a success for the leading corporate tax havens, at the expense of the smaller, less developed, traditional tax havens, whose BEPS tools were not sufficiently robust.

In August 2016, the Tax Justice Networks Alex Cobham described the OECDs MLI as a failure due to the opt–outs and watering–down of individual BEPS Actions. In December 2016, Cobham highlighted one of the key anti–BEPS Actions, full public country–by–country–reporting "CbCr", had been dropped due to lobbying by the U.S. multinationals. Country–by–country reporting is the only way to observe the level of BEPS activity and OECD compliance in any country conclusively.

In June 2017, a U.S. Treasury official explained that the reason why U.S. refused to sign up to the OECDs MLI, or any of its Actions, was because: "the U.S. tax treaty network has a low degree of exposure to base erosion and profit shifting issues".

                                     

5. Failure of TCJA 2017–2018

The Tax Cuts and Jobs Act of 2017 "TCJA" moved the U.S. from a "worldwide" corporate tax system to a hybrid "territorial" tax system. The TCJA includes anti–BEPS tool regimes including the GILTI–tax and BEAT–tax regimes. It also contains its own BEPS tools, namely the FDII–tax regime. The TCJA could represent a major change in Washingtons tolerance of U.S. multinational use of BEPS tools. Tax experts in early 2018 forecast the demise of the two major U.S. corporate tax havens, Ireland and Singapore, in the expectation that U.S. multinationals would no longer need foreign BEPS tools.

However, by mid–2018, U.S. multinationals had not repatriated any BEPS tools, and the evidence is that they have increased exposure to corporate tax havens. In March–May 2018, Google committed to doubling its office space in Ireland, while in June 2018 it was shown that Microsoft is preparing to execute Apples Irish BEPS tool, the "Green Jersey" see Irish experience post–TCJA. In July 2018, an Irish tax expert Seamus Coffey, forecasted a potential boom in U.S. multinationals on–shoring their BEPS tools from the Caribbean to Ireland, and not to the U.S. was expected after TCJA.

In May 2018, it was shown that the TCJA contains technical issues that incentivise these actions. For example, by accepting Irish tangible, and intangible, capital allowances in the GILTI calculation, Irish BEPS tools like the "Green Jersey" enable U.S. multinationals to achieve U.S. effective tax rates of 0–3% via the TCJAs foreign participation relief system. There is debate as to whether they are drafting mistakes to be corrected or concessions to enable U.S. multinationals to reduce their effective corporate tax rates to circa 10% the Trump administrations original target.

In February 2019, Brad Setser from the Council on Foreign Relations CoFR, wrote a New York Times article highlighting material issues with TCJA in terms of curtailing U.S. corporate use of major tax havens such as Ireland, the Netherlands, and Singapore.

Setser followed up his New York Times piece on the CoFR website with:

So, best I can tell, neither the OECD’s base erosion and profit shifting work nor the U.S. tax reform, will end the ability of major U.S. companies to reduce their overall tax burden by aggressively shifting profits offshore and paying between 0-3 percent on their offshore profits and then being taxed at the GILTI 10.5 percent rate net of any taxes paid abroad and the deduction for tangible assets abroad. The only good news, as I see it, is that the scale of profit shifting is now so big that it almost cannot be ignored - it is distorting the U.S. GDP numbers, not just the Irish numbers. And in my view, the current tax reform’s failure to change the incentive to profit shift will eventually become so obvious that it will become clear that the reform itself needs to be reformed.

                                     

6. OECD BEPS 2.0 2019

On 29 January 2019, the OECD released a policy note regarding new proposals to combat the BEPS activities of multinationals, which commentators labeled "BEPS 2.0". In its press release, the OECD announced its proposals had the backing of the U.S., as well as China, Brazil, and India.

Irish-based media highlighted a particular threat to Ireland as the worlds largest BEPS hub, regarding proposals to move to a global system of taxation based on where the product is consumed or used, and not where its IP has been located. The IIEA chief economist described the OECD proposal as "a move last week would obviously benefit the much larger countries".



                                     
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