Owen, Christopher: Global Survey – January 2021

Archive
  • US and Germany agree to exchange CbC Reports again
    • 2 December 2020, the US Internal Revenue Service (IRS) and German Federal Ministry of Finance published a joint statement on the implementation of the spontaneous exchange of country-by-country (CbC) reports for fiscal years beginning in 2019.

      The joint statement provides that CbC Reports for fiscal years of multinational groups (MNEs)commencing on or after 1 January 2019 and before 1 January 2020 will be spontaneously exchanged under Article 26 (Exchange of Information and Administrative Assistance) of the 1989 Germany-US tax treaty, as amended. Similar joint statements were issued for 2016, 2017 and 2018.

      The joint statement also said the US and Germany were negotiating an intergovernmental agreement and a competent authority arrangement to allow for the automatic exchange of CbC Reports. The intergovernmental agreement has been signed, but the competent authority arrangement has not been finalised.

      The competent authorities desired to exchange reports without waiting for the negotiation's conclusion. The assessment of these risks was “critical” and should not be postponed while the final agreement was being negotiated.

  • Advocate General recommends CJEU to reverse Belgian excess profits tax decision
    • 3 December 2020, the Advocate General of the Court of Justice of the Europe Union (CJEU) issued an opinion advising the Court to overturn a decision of the General Court of the EU on the legality of Belgium’s excess profits tax scheme. AG Juliane Kokott disagreed with the General Court’s determination that this was not an ‘aid scheme’. She said the CJEU should refer the case back to the General Court to again assess whether the Belgian scheme was unlawful State aid or not.

      In Commission v Belgium & Magnetrol International NV Case C-337/19, the Belgian tax authorities made downward adjustments, by way of tax rulings, to the taxable profits of a total of 55 Belgian resident undertakings forming part of multinational groups – also referred to as an excess profit exemption. The adjustments were made on the basis of a provision of the Belgian Income Tax Code pursuant to which, in accordance with the internationally accepted arm’s length principle, profits may be adjusted between two undertakings belonging to the same group if the conditions agreed between them were not the same as those which would have been agreed between independent undertakings.

      According to the Commission, however, it was not remuneration for services between two associated undertakings that was reassessed by means of the arm’s length principle, as provided for in the Income Tax Code; rather, the Belgian tax authorities compared, independently of such services, the profit of the undertaking forming part of a ‘cross-border group’ with the hypothetical profit of a non-associated undertaking, by estimating the hypothetical average profit that a standalone undertaking carrying out comparable activities would have generated in comparable circumstances.

      That amount was then subtracted from the profit actually recorded by the relevant Belgian undertaking forming part of an international group of undertakings. The difference represented the tax-exempt excess profit, which could be secured by means of an advance ruling.

      For such an advance ruling to be obtained, it was sufficient for a request to be made to that effect and for the profits to be linked to a new situation, such as a reorganisation leading to the relocation of a central entrepreneur to Belgium, the creation of jobs, or the making of investments. The Belgian authorities even advertised the possibility of obtaining such a tax exemption in respect of excess profits.

      On 11 January 2016, the Commission found that this practice constituted an aid scheme that was incompatible with the internal market and had been unlawfully put into effect because it had not been notified to the Commission. The Commission further ordered that the aid granted be recovered from the beneficiaries, a definitive list of which was to be drawn up by Belgium at a later stage.

      Following actions brought by Belgium and Magnetrol International, the General Court annulled the Commission’s decision on 14 February 2019, holding that its finding of the existence of an aid scheme to be incorrect. In particular, the Commission had reviewed only a sample of the advance tax rulings issued and had therefore failed to prove that the Belgian tax authorities had followed a systematic approach. The Commission appealed to the CJEU and Belgium lodged a cross-appeal, criticising the General Court for having rejected any encroachment upon its tax jurisdiction.

      In her Opinion, Advocate General Kokott proposed that the CJEU should set aside the judgment of the General Court on the ground that the Commission had sufficiently demonstrated in its decision that the Belgian practice met the conditions for the existence of an ‘aid scheme’.

      As a preliminary point, she stated that the subject of the appeal was not a question of whether the advance tax rulings at issue actually constituted prohibited aid. Rather, the subject of the appeal was merely the question whether, and if so, under what conditions, the Commission could object to a large number of such tax rulings ‘as a package’ as being an aid scheme. The practical importance of this question was illustrated inter alia by the fact that the present case was a pilot case – 28 further actions by beneficiaries of the alleged aid are currently stayed.

      As regards the first of the three conditions for the existence of an aid scheme, namely that there must be an act, the General Court, contrary to what the Commission asserted, did not rule out the possibility that a consistent administrative practice might constitute such an act. Rather, the General Court merely stated that the Commission had not demonstrated any consistent administrative practice.

      It has also interpreted the legal requirements for what constitutes sufficient demonstration too narrowly. According to the Advocate General, the Commission could use a sample for the purposes of proving a consistent administrative practice and had sufficiently demonstrated in its decision that its sample was representative overall. The General Court had been wrong to consider that the two further conditions for the existence of an aid scheme – that no further implementing measures were required and that the beneficiaries were defined in a general and abstract manner – were not met.

      AG Kokott proposed that the case be referred back to the General Court to assess whether the advance tax rulings concerning the downward adjustment of profits really do constitute State aid and whether the recovery of the alleged aid infringes, in particular, the principles of legality and of the protection of legitimate expectations.

      The Advocate General considered the cross-appeal lodged by Belgium to be inadmissible, on the ground that Belgium lacked an interest in bringing an appeal. The CJEU would either dismiss the Commission’s appeal and the annulment of its decision would become final as a result – fully in line with Belgium’s aims – or it would refer the case back to the General Court. The CJEU would only rule on Belgium’s submissions concerning the tax jurisdiction of the member states in a further appeal.

      The AG’s Opinion is not binding on the CJEU. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The judges of the CJEU are now beginning their deliberations and judgment will be given at a later date.

  • Barbados, Germany and Pakistan ratify the Multilateral BEPS Convention
    • 21 December 2020, Barbados deposited its instrument of ratification for the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI), which now covers over 1,700 bilateral tax treaties. Germany and Pakistan also deposited their instruments of ratification on 18 December. The MLI will enter into force on 1 April 2021 in all three countries.

      With 95 jurisdictions currently covered by the MLI, ratification by Barbados brings to 60 the number of jurisdictions that have ratified, accepted or approved it. The MLI became effective on 1 January 2021 for over 600 treaties concluded among the 60 jurisdictions, with an additional 1,200 treaties to become effectively modified once the MLI has been ratified by all signatories.

      Switzerland also notified in relation to Article 35(7)(a)(i) of the MLI the confirmation of the completion of its internal procedures for the entry into effect of the provisions of the MLI with respect to its treaties with the Czech Republic and Lithuania in accordance with Article 35(7)(b) of the MLI.

      The text of the MLI and its explanatory statement were developed through a negotiation involving more than 100 countries and jurisdictions and adopted on 24 November 2016, under a mandate delivered by G20 Finance Ministers and Central Bank Governors.

      The MLI provides a mechanism to transpose results from the OECD/G20 Base Erosion and Profit Shifting (BEPS) Project into bilateral tax treaties worldwide. The MLI modifies the application of thousands of bilateral tax treaties concluded to eliminate double taxation. It also implements agreed minimum standards to counter treaty abuse and to improve dispute resolution mechanisms while providing flexibility to accommodate specific tax treaty policies.

      The text of the MLI, the explanatory statement, background information, database, and positions of each signatory are available at http://oe.cd/mli

  • EC finds Madeira Free Zone scheme out of line with approved conditions
    • 4 December 2020, the European Commission found that the Madeira Free Zone aid scheme (Regime III) in Portugal has not been implemented in line with the Commission's State aid decisions of 2007 and 2013. The objective of the approved measure was to contribute to the economic development of the outermost region of Madeira through tax incentives. The decisions explicitly required that the aid would be granted to companies generating economic activity and real jobs in the Madeira region itself.

      However, the Commission's investigation found that tax reductions had been applied to companies that had made no real contribution to the development of the region, including on jobs created outside Madeira (and even the EU), in breach of the conditions of the decisions and EU State aid rules. Portugal must now recover the incompatible aid, plus interest, from companies that did not meet the conditions.

      Competition commissioner Margrethe Vestager said: “Outermost regions, such as Madeira, face specific challenges and therefore benefit from particularly flexible State aid rules to support their economic development. On this basis the Commission had approved support for the Madeira Free Zone, enabling tax advantages to be granted to those companies that contribute to the creation of real economic activity and jobs in the region. However, the scheme was not implemented in line with these fundamental compatibility conditions. This is in breach of EU State aid rules and therefore Portugal will now have to recover aid from relevant companies that did not create real economic activity and jobs in Madeira.”

      Since 1987, the Commission approved successive versions of a corporate income tax reduction scheme notified by Portugal for companies established in the Madeira Free Zone. The Regime III scheme, which was in place until 2014 and was followed by the Regime IV that was in force until end 2020, was approved as an aid measure aimed at compensating the structural handicaps that companies faced in the outermost region of Madeira.

      Without questioning the outermost region status, nor Madeira’s eligibility for regional aid, the Commission opened an in-depth investigation in July 2018 to examine whether the Portuguese scheme in favour of companies established in the Zona Franca da Madeira had been implemented in compliance with the 2007 and 2013 Commission decisions and, more generally, with State aid rules. It found that:

      -The number of jobs taken into account by Portugal for the calculation of the aid amount under the scheme included jobs created outside the Zona Franca da Madeira and even outside the EU. Furthermore, part-time jobs were taken into account as full time ones, and board members were counted as employees in more than one company benefitting from the scheme, without an adequate and objective method of calculation;

      -The profits benefiting from the tax reduction were not limited to those linked to activities effectively and materially performed in Madeira.

      On this basis, the Commission concluded that the scheme, as implemented, did not comply with the Commission's decisions of 2007 and 2013 and that such individual aids granted to beneficiaries was unlawful and could not be considered compatible with the internal market on the basis of Article 107(3)(a) Treaty on the Functioning of the European Union (TFEU).

      As a matter of principle, EU State aid rules require that incompatible State aid is recovered without delay in order to remove the distortion of competition created by the aid. The companies concerned by the recovery are those that received more than €200,000 under the Madeira Free Zone aid scheme (Regime III) and could not show that their taxable earnings or jobs created were linked to activities effectively performed in the region.

      The decision provides eight months for the implementation of the recovery decision instead of the usual four months period. It is now for Portugal to determine the amount to be recovered from each individual beneficiary, in line with the methodology set out in the Commission decision.

  • England & Wales Appeal Court overturns Upper Tribunal tax residency ruling
    • 15 December 2020, the England and Wales Court of Appeal (EWCA) overturned the Upper Tribunal and agreed with the First-tier Tax Tribunal that the relevant Jersey-incorporated subsidiaries of a UK parent were resident in the UK for tax purposes, by reason of their being centrally managed and controlled in the UK.

      In HMRC v Development Securities Plc & Others [2020] EWCA Civ 1705, the UK tax-resident parent company of the property development and investment group, Development Securities, wished to implement a tax planning scheme by which the group would use latent losses incurred on the acquisition of some of its subsidiaries and properties to offset other gains in the group.

      As part of the scheme, three new companies were incorporated in Jersey in 2004 as subsidiaries of Development Securities. They were granted call options that entitled them to buy the relevant subsidiaries and properties if certain conditions were satisfied. These options were exercised at a price in excess of the market value of the assets that would not have been in the best interests of the Jersey subsidiaries if considered in isolation.

      The Jersey-based directors of the Jersey subsidiaries approved the transactions on advice from Development Securities and were then replaced by UK-resident directors, such that the companies became UK tax-resident. The relevant subsidiaries and properties were transferred to other group companies and losses were crystallised on the transfer. These losses were treated as accruing to Development Securities as a result of an election made under section 179A of the Taxation of Chargeable Gains Act 1992.

      The scheme's success relied on the Jersey companies not being UK tax-resident at the time the assets were acquired. To ensure this, the directors held their board meetings in Jersey, in order to meet the accepted central management and control (CMC) test for tax residence.

      HMRC challenged the tax residency of the Jersey subsidiaries at the First-tier Tax Tribunal (FTT), arguing that the significant director level decisions as to whether to enter into the transaction were taken in the UK and not by the companies’ boards of directors in Jersey. The Jersey directors only considered whether the transaction was legal under Jersey law and were actually under the effective CMC of the parent company. They argued that the directors would not have agreed to buy the call options at far above their market price if they had been acting autonomously for the companies they directed.

      In 2017 the FTT ruled in HMRC's favour, accepting that the companies were in fact UK tax-resident. Development Securities appealed to the Upper Tribunal (UT), which reversed the FTT's finding. Having analysed Jersey corporate law, the UT concluded that the directors of the Jersey companies had only to satisfy themselves that the interests of the group’s parent were taken into account. It noted that the companies were not economically disadvantaged by overpaying for the options, because the overpayment was funded by their UK parent company.

      The UT agreed with the FTT’s finding that the single UK resident director acted by ‘rubber stamping’ the decisions. But it also found that the Jersey directors properly exercised their directors’ duties by considering the transactions in detail and concluding that they were in the interests of Development Securities and therefore the Jersey companies. It said that it did “not consider that the mere fact that the directors had a specific task entrusted to them by their parent, after which they were to resign, says anything about where CMC vested.”

      HMRC appealed and the EWCA overturned the UT decision. It upheld the FTT's position that, although the Jersey directors knew, understood and considered the lawfulness of what they were doing, they had not engaged with the substantive decision, which had been taken by the parent.

      In particular, the Court noted that there was a misunderstanding by the UT as to the importance of the uncommercial nature of the transactions when considering that this issue was not a determining factor in the case. It agreed with the FTT that the question of where the Jersey companies were tax resident required answers to who was making the strategic and management decisions regarding the company’s business and where were those decisions made.

      The Court held that an important finding by the FTT was that the Jersey directors were, as a matter of fact, acting under instructions or orders from Development Securities in confirming the lawfulness of their decision but without considering the merits of the decision. This led to a conclusion that the decision to enter into the relevant transactions was, in fact, taken by Development Securities and not by the directors in Jersey.

      The full decision of the EWCA can be accessed at https://www.bailii.org/ew/cases/EWCA/Civ/2020/1705.html

  • European Commission requires Italy to end tax exemptions for ports
    • 4 December 2020, the European Commission announced that it required Italy to abolish corporate tax exemptions granted to its ports in order to align its tax regime with EU State aid rules. It said profits earned by port authorities from economic activities must be taxed under normal national corporate tax laws to avoid distortions of competition.

      Competition commissioner Margrethe Vestager said: "EU competition rules recognise the relevance of ports for economic growth and regional development, allowing Member States to invest in them. At the same time, to preserve competition, the Commission needs to ensure that, if port authorities generate profits from economic activities, they are taxed in the same way as other companies. Today's decision for Italy – as previously for the Netherlands, Belgium and France – makes clear that unjustified corporate tax exemptions for ports distort the level playing field and fair competition. They must be removed."

      In Italy, port authorities are fully exempt from corporate income tax. In January 2019, the Commission invited Italy to adapt its legislation in order to ensure that ports would pay corporate tax on profits from economic activities in the same way as other companies in Italy, in line with EU State aid rules.

      In November 2019 the Commission opened an in-depth investigation which concluded that the corporate tax exemption granted to Italian ports provides them with a selective advantage, in breach of EU State aid rules. In particular, the tax exemption did not pursue a clear objective of public interest and the tax savings generated could be used by the port authorities to fund any type of activity or to subsidise the prices charged by the ports to customers, to the detriment of competitors and fair competition.

      The decision made clear that if port authorities generate profits from economic activities, these should be taxed under the normal national tax laws to avoid distortions of competition.

      Italy must take the necessary steps to remove the tax exemption to ensure that, from 1 January 2022, all ports are subject to the same corporate taxation rules as other companies. Since the corporate tax exemption for ports already existed before the Treaty entered into force in Italy in 1958, this measure is considered as “existing aid”. The decision does not therefore impose any obligations on Italy to recover corporate tax that was not paid in the past.

  • European Parliament calls for changes to EU tax haven blacklist process
    • 10 December 2020, a resolution setting out proposed changes to the system used to draw up the EU list of tax havens was adopted by the Economic and Monetary Affairs Committee of the European Parliament, which branded the current system as “confusing and ineffective”.

      The resolution proposes changes that would make the process of listing or delisting a country more transparent, consistent and impartial. It also proposes adding criteria to ensure that more countries are considered a tax haven and prevent countries from being removed from the blacklist too hastily. Finally, the resolution says that EU member states should also be screened to see if they display any characteristics of a tax haven, and those falling foul should be regarded as tax havens too.

      Chair of the Subcommittee on Tax Matters Paul Tang said: “By calling the EU list of tax havens “confusing and inefficient”, the European Parliament tells it like it is. While the list can be a good tool, it is currently lacking an essential element: actual tax havens. Countries on the list account for just 2% of corporate tax avoidance!

      “EU member states currently decide in secret which countries are tax havens, and do so based on vague criteria with no public or parliamentary scrutiny. This needs to change. If we focus on others, we also need to look ourselves in the mirror. And what we see is not pretty. EU countries are responsible for 36% of tax havens. The tax subcommittee commits itself to investigate and scrutinise all member states that are responsible for tax avoidance. Our work is only just starting.”

      MEPs say that the criterion for judging if a country’s tax system is fair or not needs to be widened to include more practices and not only preferential tax rates. The fact that the Cayman Islands has just been removed from the black list, while running a 0% tax rate policy, is proof enough of this, MEPs say.

      Among other measures proposed, the resolution therefore says that all jurisdictions with a 0% corporate tax rate or with no taxes on companies’ profits should be automatically placed on the blacklist.

      Being removed from the blacklist should not be the result of only token tweaks to that jurisdiction’s tax system, MEPs say, arguing that the Cayman Islands and Bermuda for example were delisted after “very minimal” changes and “weak enforcement measures”. The resolution therefore calls for screening criteria to be more stringent.

      The resolution says that all third countries need to be treated and screened fairly using the same criteria. The current list indicates that this is not the case and the lack of transparency with which it is drawn up and updated adds to these misgivings, the resolution says.

      MEPs call for the process of establishing the list to be formalised through a legally binding instrument. They question the ability and suitability of an informal body such as the Code of Conduct Group to carry out the mission of updating the blacklist. The resolution also sets out what type of disclosure is necessary.

  • French Conseil d’Etat determines PE based on the dependent agent test
    • 11 December 2020, the French Supreme Administrative Court (Conseil d’Etat) overturned the decision of the Paris Administrative Court of Appeal and ruled that Valueclick International, an Irish company engaged in online advertising, did have a permanent establishment (PE) in France and was therefore subject to French corporate income tax (CIT).

      In Conseil d’Etat No. 420174, Valueclick was a US group carrying out digital marketing activities. In Europe, this activity was carried out by Valueclick International (VI), an Irish company that owned non-exclusive rights to use the corresponding intellectual property rights for markets outside North America.

      VI, in turn, carried on business in France through an affiliated company – Valueclick France (VF) – with which it had entered into an intra-group services contract. Under a services agreement, VF was responsible for providing administrative, financial and HR support – for a cost plus 8% fee – and was involved, as ‘marketing representative’, in the business development and management of the commercial relations with VI’s clients, including the preparation, negotiation and implementation of its contracts.

      Under Article 2.9c of the 1968 Ireland-France double tax treaty, for a PE to exist in France an Irish resident company must either have a fixed place of business in France through which it carries on all or part of its activity or have recourse to a dependent agent that habitually exercises in France powers enabling it to execute a commercial relationship.

      The French revenue regarded VF to be a PE of VI for CIT and VAT purposes. It argued that VF was acting either as a fixed place of business or as a dependent agent of VI within the meaning of the Ireland-France double tax treaty. At first instance, the Court agreed.

      However, on 1 March 2018, the Paris Administrative Court of Appeal (CAA Paris 1-3-2018 No. 17PA01538: RJF 6/18 No. 600) rejected the characterisation of VF as a PE. In respect of CIT, it considered that VF did not constitute a fixed place of business of VI because it was carrying out its own activity and did not exceed its services agreement. It also found that VF did not act as a dependent agent of VI because it did not have the authority to conclude contracts in VI’s name. These contracts could not legally bind VI without its prior approval and signature.

      In respect of VAT, VI could also not be considered as having suitable human and material resources to autonomously carry out the digital marketing activity because VF had no sustained access to the intellectual property rights and technological tools located outside France.

      The Conseil d’Etat disagreed. Relying on paragraphs 32.1 and 33 of the OECD commentaries on Article 5 of its Model Tax Convention published in 2003 and 2005 respectively, the Court held that, under the treaty, if a French company habitually entered into transactions that an Irish company simply endorsed without substantial modification then it must be regarded as exercising dependent agent powers even if it did not formally conclude contracts in an Irish company’s name.

      The court noted that while VI set the model for contracts with advertisers and the general pricing conditions, VF was responsible for deciding whether to enter into a contract with an advertiser or not and performed all tasks necessary for its conclusion.

      From a VAT perspective, the Conseil d’Etat considered that the Paris Administrative Court of Appeal committed in an error in the legal qualification of the facts submitted by the parties. It held that VF did have access to the technological tools, even though they were located outside France, sufficient to manage the implementation of the contracts and assist the clients without any involvement of VI or other entities of the group.

      The Conseil d’Etat therefore held that VF constituted a fixed place of business for CIT purposes and a PE for VAT purposes. It concluded that VAT was due in France from 2010–2012 when the place of supply of services was France because the services were provided to a taxable customer established in France within the meaning of Article 259 of the French tax code, which transposes the EU VAT directive.

      It is the first time that the Conseil d’Etat has ruled on the existence of a PE based on the dependent agent test in respect of a digital services provider. It has refer the matter back to the Paris Administrative Court of Appeal, which will have to review and decide the matter again in light of the Conseil d’Etat’s interpretation.

      The decision shows that OECD commentaries may, in certain circumstances, be taken into consideration by the courts on a retrospective basis. Judge Philippe Martin said such commentaries may “influence” judges, especially for provisions defining PEs.

      The full decision can be accessed at https://www.conseil-etat.fr/fr/arianeweb/CE/decision/2020-12-11/420174

  • Global Forum claims success for automatic exchange of information for tax purposes
    • 9 December 2020, the OECD’s Global Forum on Transparency and Exchange of Information for Tax Purposes said new international standards on the automatic exchange of information for tax purposes had so far been satisfactorily implemented by countries worldwide, marking an important milestone in the global fight against tax evasion.

      The first peer review of the Automatic Exchange of Financial Account Information showed that 88% of jurisdictions engaged in automatic exchange since 2017/2018 were deemed to have satisfactory legal frameworks in place. The report noted that a second stage of the monitoring process, now underway, would assess the effectiveness of automatic exchange in more than 100 jurisdictions.

      The peer review report was presented during the first day of the annual plenary meeting of the Global Forum, which brought together ministers, high-level authorities and delegates from more than 100 member jurisdictions. The three-day meeting was focused on how the tax transparency agenda could promote the fairness of tax systems while strengthening revenue mobilisation. It also highlighted recent achievements and challenges in the context of the COVID-19 pandemic.

      “The Global Forum continues to be a game-changer,” said OECD Secretary-General Angel Gurría. “In spite of the COVID-19 crisis, it has successfully delivered on the global peer review process, offering further proof that automatic exchange is becoming the global standard. Ensuring access to financial account information for tax administrations helps ensure everyone pays their fair share of tax, boosting revenue mobilisation for countries worldwide, and particularly for developing countries.”

      In 2019, countries automatically exchanged information on 84 million financial accounts worldwide, covering total assets of USD10 trillion. Additional tax revenues amounting to €107 billion had also been identified through voluntary disclosure programmes, offshore tax investigations and related measures since 2009, an increase over the €102 billion figure reported in 2019.

      The Global Forum Secretariat provided technical assistance in 2020 to 59 developing country members, including training to thousands of officials, as part of efforts to strengthen tax collection capacity worldwide. “The battle for transparency is being fought on many fronts,” said Zayda Manatta, head of the Global Forum Secretariat. “We are moving fast towards full implementation of the existing standards, and taking every effort to ensure all our members benefit from them.”

  • Global Forum issues Information Security Management toolkit
    • 1 December 2020, the Global Forum on Transparency and Exchange of Information for Tax Purposes (Global Forum) issued a new Confidentiality and Information Security Management (ISM) Toolkit, which is designed to assist developing countries in implementing the OECD’s Automatic Exchange of Information (AEOI) Standard.

      The Toolkit provides detailed guidance on implementing the building blocks of a legal and ISM framework that adheres to internationally recognised standards or best practices, as required by the AEOI Standard, and ensures the confidentiality of the exchanged information. The toolkit also provides guidance on establishing effective processes to address potential confidentiality breaches.

      The Forum said confidentiality laws and ISM good practices were already in place in most member jurisdictions, but many developing countries were still in the process of implementing or improving key elements of their ISM frameworks. The COVID-19 crisis had brought renewed attention to the role and importance of multilateral co-operation in fighting tax evasion and enhancing domestic revenue mobilisation.

      The Common Reporting Standard (CRS) was developed in response to the G20 request and approved by the OECD Council in July 2014. It calls on jurisdictions to obtain information from their financial institutions and automatically exchange that information with other jurisdictions on an annual basis.

  • Hong Kong, Serbia tax agreement enters into force
    • 30 December 2020, the Hong Kong government announced that the double tax treaty signed with Serbia in August had been brought into force, after the completion of the relevant ratification procedures. The new treaty will have effect in respect of Hong Kong tax for any year of assessment beginning on or after 1 April 2021.

      Under the agreement, Serbia’s withholding tax rates for Hong Kong resident companies on dividends, interest, and royalties will be capped at 10%. Profits from international shipping transport earned by Hong Kong residents arising in Serbia will not be taxed in Serbia.

  • Inclusive Framework reports on exchange of information on tax rulings
    • 15 December 2020, the OECD/G20 Inclusive Framework reported that 81 jurisdictions were now fully in line with the BEPS Action 5 minimum standard on the Exchange of Information on Tax Rulings, with the remaining 43 jurisdictions receiving one or more recommendations to improve their legal or operational framework to identify and exchange the tax rulings.

      As part of continuing efforts to improve tax transparency, the Inclusive Framework reviewed the progress made by 124 jurisdictions in spontaneously exchanging information on tax rulings in its 2019 Peer Review Reports. This comprised all Inclusive Framework members that joined prior to 30 June 2019, as well as ‘jurisdictions of relevance’ identified prior to 30 June 2019.

      There were 30 jurisdictions that were not able legally, or in practice, to issue rulings in scope of the transparency framework*. Eight other members of the Inclusive Framework – Anguilla, the Bahamas, Bahrain, Bermuda, British Virgin Islands, Cayman Islands, Turks & Caicos Islands and the United Arab Emirates – were not assessed because they do not impose any corporate income tax, and therefore cannot legally issue rulings within scope of the transparency framework.

      The conclusions showed that transparency on tax rulings was now a fully-entrenched part of the international tax framework. As at 31 December 2019, almost 20,000 tax rulings in the scope of the transparency framework had been issued by the jurisdictions under review. This was the cumulative figure, including certain past rulings issued since 2010. Over 2,000 tax rulings in scope of the transparency framework were issued in 2019 by the 124 jurisdictions reviewed.

      Over 36,000 exchanges of information had taken place by 31 December 2019, with approximately 7,000 exchanges undertaken during 2019, 9,000 exchanges undertaken during 2018, 14,000 exchanges undertaken during 2017 and 6,000 exchanges during 2016.

      Out of the 94 reviewed jurisdictions, 62 jurisdictions did not receive any recommendations because they have met all the terms of reference. A further 12 jurisdictions received only one recommendation and 58 recommendations for improvement were made for the year in review.

      In a number of cases, the peer review process had assisted jurisdictions in identifying areas where improvement is required, and jurisdictions had been able to take action to implement changes over 2020 while the peer review was ongoing. Where these changes were implemented in 2020, they are generally not taken into account in the recommendations issued for the year 2019 but would be reviewed in a subsequent peer review.

      The BEPS Action 5 minimum standard on the compulsory spontaneous exchange of information on tax rulings is designed to provide tax administrations with timely information on rulings that have been granted to a foreign related party of their resident taxpayer or a permanent establishment, which can be used in conducting risk assessments and which, in the absence of exchange, could give rise to BEPS concerns.

      The transparency framework requires spontaneous exchange of information on five categories of taxpayer-specific rulings:

      -Rulings related to certain preferential regimes;

      -Unilateral advance pricing arrangements (APAs) or other cross-border unilateral rulings in respect of transfer pricing;

      -Rulings providing for a downward adjustment of taxable profits;

      -Permanent establishment (PE) rulings;

      -Related party conduit rulings.

      The requirement to exchange information on the rulings in these categories includes certain past rulings as well as future rulings under pre-defined periods that vary according to the time when a jurisdiction joined the Inclusive Framework or was identified as a jurisdiction of relevance. The exchanges occur under international exchange of information agreements that provide the legal conditions under which exchanges take place, including the need to ensure taxpayer confidentiality.

      The need for transparency on rulings, said the Inclusive Framework, was because a tax administration's lack of knowledge or information on the tax treatment of a taxpayer in another jurisdiction could impact the treatment of transactions or arrangements undertaken with a related taxpayer resident in their own jurisdiction and lead to BEPS concerns. The availability of timely and targeted information about such rulings, was intended to equip tax authorities to identify risk areas more rapidly.

      This framework was designed with a view to finding a balance between ensuring that the information exchanged is relevant to other tax administrations and that it does not impose an unnecessary administrative burden on either the country exchanging the information or the country receiving it.

      As the delivery of the BEPS Project has reached its five-year mark this year, the Inclusive Framework is now working to ensure that the progress made on ensuring transparency in relation to the issuance of tax rulings is maintained towards the future, both through a review of the overall effectiveness of the Standard and the development of a renewed peer review process for the years 2021 to 2025.

      * Belize, Bulgaria, Burkina Faso, Cameroon, Cook Islands, Cote d’Ivoire, Democratic Republic of Congo, Djibouti, Dominica, Greenland, Haiti, Liberia, Macau, Maldives, Monaco, Mongolia, Montserrat, Nigeria, North Macedonia, Oman, Pakistan, Papua New Guinea, Paraguay, Saint Vincent & the Grenadines, Saudi Arabia, Serbia, Sierra Leone, Tunisia, Trinidad & Tobago and Zambia.

      The full details of the peer reviews and outcomes can be accessed at www.oecd.org/tax/beps/harmful-tax-practices-2019-peer-review-reports-on-the-exchange-of-information-on-tax-rulings-afd1bf8c-en.htm

  • Japan, Switzerland to negotiate tax treaty amendments
    • 15 December 2020, the Japanese Ministry of Finance announced that the government of Japan and the Swiss Federal Council are to initiate negotiations for their amendment of the current double taxation agreement, which entered into force in 1971 and was partially amended in 2011. The negotiations were initiated on 16 December.

  • MAS announces first licences to operate new digital banks in Singapore
    • 4 December 2020, the Monetary Authority of Singapore (MAS) announced the names of the first four successful applicants for licences to operate digital banks in Singapore. MAS said it would award banking licences to up to two Digital Full Banks (DFBs) and up to three Digital Wholesale Bank (DWBs). It received a total of 14 eligible applications.

      Announcing the digital bank framework in June 2019, MAS said it would enable non-bank players with strong value propositions and innovative digital business models to offer digital banking services. DFBs will be provide a wide range of financial services and take deposits from retail customers, while DWBs will focus on serving SMEs and other non-retail segments.

      Two DFB licences were awarded to an entity wholly-owned by Sea Limited, and a consortium comprising Grab Holding Inc. and Singapore Telecommunications Limited. Two DWB licences were awarded to an entity wholly-owned by Ant Group Co., and to a consortium comprising Greenland Financial Holdings Group Co., Linklogis Hong Kong and Beijing Co-operative Equity Investment Fund Management Co.

      MAS said the two selected DFB applicants were clearly stronger than the other eligible DFB applicants. As for the DWBs, the two selected applicants met MAS’ expectations and were assessed to be demonstrably stronger across the criteria, despite the general high quality of the eligible applicants. MAS also took into consideration the applicants’ reviews of the business plans and assumptions underpinning their financial projections arising from the impact of the COVID-19 pandemic.

      MAS managing director Ravi Menon said: “MAS applied a rigorous, merit-based process to select a strong slate of digital banks. We expect them to thrive alongside the incumbent banks and raise the industry’s bar in delivering quality financial services, particularly for currently underserved businesses and individuals. They will further strengthen Singapore’s financial sector for the digital economy of the future.”

      The successful applicants must meet all relevant prudential requirements and licensing pre-conditions before MAS grants them their respective banking licences. MAS expects the new digital banks to commence operations from early 2022.

      These new digital banks are in addition to any subsidiaries that Singapore-incorporated banking groups may already establish under MAS’ existing regulatory framework, including with joint venture partners, to operate new or alternative business models such as a digital-only bank.

  • New agreements between Switzerland and UK take effect
    • 29 December 2020, the Swiss Federal Department of Foreign Affairs (FDFA) said it had taken note of the conclusion of a trade deal between the EU and the UK and welcomed the fact that it has been possible to avoid a withdrawal of the UK with no deal.

      It also announced that the various Swiss-EU bilateral agreements that would cease to apply to the UK at the end of the Brexit transition period on 31 December would be succeeded by a series of follow-up agreements that Switzerland had negotiated with the UK as part of its ‘Mind the Gap’ strategy. Most of the existing rights and obligations between the two countries will continue to apply.

      The objective of the Mind the Gap strategy was to safeguard and, where possible, build on the rights and obligations applicable between Switzerland and the UK. In total, the Federal Council negotiated seven agreements with the UK government covering: scheduled air services, international carriage of passengers and goods by road, direct insurance other than life insurance, trade, citizens' rights, services mobility and police co-operation. All were brought into force on 1 January 2021.

      The Trade Agreement, signed on 11 February 2019, transfers several relevant agreements with the EU into the Swiss-UK relationship, including the Free Trade Agreement (1972), the Procurement Agreement (1999), the Mutual Recognition Agreement (1999), the Agriculture Agreement (1999) and the Anti-Fraud Agreement (2004). Some of the replicated provisions will not apply from 1 January, as they depend on an equivalent arrangement between the UK and the EU.

      Alongside these seven agreements, Switzerland and the UK have also been determining the shape of their future relations. For instance, on 30 June the two countries issued a joint statement regarding closer cooperation on financial services. Switzerland and the UK issued another statement on 21 December, which sets out their intentions to explore ways to enhance cooperation on migration. The Trade Agreement also includes provisions on further discussions between both countries in order to develop and intensify their economic and trade relations.

      The free movement of persons between Switzerland and the UK will cease to apply at the end of 2020, which means that access to the job market after 1 January 2021 will be governed by national legislation. In Switzerland access to the job market is regulated by the Federal Act on Foreign Nationals and Integration. The Federal Council has also introduced a separate quota for 2021, allowing 3,500 UK nationals to work in Switzerland.

  • New Zealand publishes new trust disclosure provisions
    • 2 December 2020, Minister of Revenue David Parker introduced the Taxation (Income Tax Rate and Other Amendments) Bill to parliament. As well as introducing a new top personal income tax rate of 39%, it also introduces a number of measures to forestall avoidance – increased disclosure requirements for trusts and a clarifying amendment to ensure that the Inland Revenue can collect information solely for tax policy development purposes.

      The new top rate will apply on annual income earned over NZD180,000 as of 1 April 2021. According to the Bill's general policy statement, the powers will be used “in order to gain insight into whether the top personal rate of 39% is working effectively and to provide better information to understand and monitor the use of structures and entities by trustees.”

      The Bill's new disclosure powers can be invoked against trustees of domestic trusts for any period after the end of the 2013/14 tax year. Specifically, the Bill's new s.59BA requires trustees to file an annual return including:

      -A profit-and-loss statement and a statement of financial position;

      -The amount and nature of each settlement to or distribution from the trust; and

      -The name, date of birth, jurisdiction of tax residence, tax file number and taxpayer identification number of each settlor and beneficiary, and each person having a power under the trust to appoint or dismiss a trustee, to add or remove a beneficiary, or to amend the trust deed.

      Trustees are only required to disclose information that is within their knowledge, possession or control. Non-active trusts, charitable trusts and foreign trusts are exempt from the new requirements.

      Parker said the government was aware that some people might seek to escape the higher tax rate and shelter their income in trusts.

      “This bill includes powers to collect information from trustees to test compliance and the effective operation of the 39% tax rate and to further understand what trustees do with trust assets and income,” he said. “If trusts are used for the sole purpose of paying a lower tax rate, it is unfair to all those New Zealanders that pay the right amount of tax. If there is evidence of this type of behaviour we will move on it.”

      A major reform of the country's trust law is already scheduled to come into effect on 30 January 2021 in the form of the Trusts Act 2019. Much of the Act updates or restates law that exists already, either in statute or in case law. There are, however, a number of changes, particularly in respect of new ‘mandatory’ and ‘default’ duties for trustees.

  • OECD publishes information on implementation of HTVI approach
    • 16 December 2020, the OECD published jurisdiction-specific information on the implementation of the hard-to-value intangibles (HTVI) approach as part of the monitoring process agreed by the OECD/G20 Inclusive Framework under Action 8 of the Action Plan on Base Erosion and Profit Shifting (BEPS).

      The HTVI approach was formally incorporated into the OECD Transfer Pricing Guidelines, as Section D.4 of Chapter VI, and is designed to protect tax administrations from the negative effects of information asymmetry by ensuring that they can consider ex post outcomes as presumptive evidence about the appropriateness of ex-ante pricing arrangements. It also permits taxpayers to rebut such presumptive evidence by demonstrating the reliability of the information supporting the pricing methodology adopted at the time the controlled transaction took place.

      To date, 40 jurisdictions have provided information on whether their domestic legal system provides for transfer pricing rules aimed at transactions involving HTVI. This, said the Inclusive Framework, provides tax administrations, taxpayers and other stakeholders with a better understanding of the extent to which the HTVI approach has been adopted and applied in practice, with the aim to reduce misunderstandings and disputes between governments.

  • Russia proposes denouncing double tax treaty with the Netherlands
    • 4 December 2020, Russian lawmakers proposed denouncing the double tax treaty with the Netherlands, according to a draft document on the Russian government website. In March, Russian President Vladimir Putin proposed that tax should be levied on interest and dividend payments leaving Russia in order to combat capital outflows as the country battles low oil prices and the COVID-19 pandemic.

      In a statement, Russia’s finance ministry noted that it had been in negotiations with the Netherlands to amend the treaty by increasing the withholding tax in respect of dividends and interest to 15%. It said these conditions were similar to those that had already been agreed by Cyprus, Luxembourg and Malta in protocols to their respective treaties, but negotiations with the Netherlands had been unsuccessful.

      "The Russian proposal to amend the tax treaty takes too limited account of real economic activities. This proposal therefore has negative consequences for both the Dutch and Russian businesses," said Dutch Finance Ministry spokesman Remco Raus.

      He said that the Netherlands had made constructive proposals to preserve the tax treaty for real economic activities whilst preventing access to activities that do not contribute to the economy in line with the Dutch policy to combat tax avoidance.

      "Various Dutch companies (both listed and non-listed) are developing activities in Russia and vice versa. Both Russia and the Netherlands benefit from retaining these economic activities," said Raus.

      The Russian government did not support this approach to amending the treaty, saying it would preserve alternative channels for the withdrawal of funds from the country. According to the Finance Ministry, significant resources were withdrawn to the Netherlands under the current treaty in the form of interest and dividend payments. These amounted to more than RUB457 billion ($6.2 billion) in 2017, RUB412 billion in 2018 and more than RUB339 billion in 2019.

  • Swiss banks ordered to disclose account details of FATCA non-compliers
    • 7 December 2020, Swiss banks that have already supplied aggregated information about clients under the US Foreign Account Tax Compliance Act (FATCA) are now being ordered to reveal details of customer accounts that have not yet been fully disclosed to the US authorities.

      FATCA was introduced in 2010, compelling banks to report accounts owned by US taxpayers to the US Internal Revenue Service (IRS). It was closely followed by US Department of Justice action against Swiss banks, threatening them with prosecution unless they made separate disclosures of their US clients and paid financial penalties. Most banks agreed to join this non-prosecution programme, but some did not, or were disqualified from doing so because they were already under criminal investigation.

      The IRS has now submitted group administrative assistance requests to the Swiss Federal Tax Administration (FTA) concerning 12 Swiss banks and a fiduciary institution: AROFIN SA; Bank Vontobel AG; Banque Pictet & Cie SA; Barclays Bank (Suisse) SA; CA Indosuez (Switzerland) SA / Crédit Agricole (Suisse) SA; FIBI (Suisse) SA en liquidation; Hinduja Banque (Suisse) SA; Mirabaud & Cie SA; Notenstein La Roche Privatbank AG (Bank Vontobel AG); PKB PRIVATBANK SA; Schroder & Co Bank AG; Union Bancaire Privée, UBP SA; and Zuger Kantonalbank.

      The information requested by the IRS documents concerns accounts that were typically identified as US-owned, or accounts of non-participating financial institutions (FIs) to which foreign reportable amounts had been paid, but whose owner did not consent to having their details passed to the IRS. In the absence of this consent, the FI concerned had to report the account information to the IRS in aggregated form for the years 2014-2019.

      The persons concerned are required give the FTA their Swiss address if they are domiciled in Switzerland, or designate a person in Switzerland authorised to receive service if they are domiciled abroad. Legal successors of deceased accountholders must also submit a certificate of inheritance.

      Previously, Switzerland has not recognised group administrative assistance requests from the US, but has recently agreed to accept them under certain conditions. One of these is that persons and institutions affected by the requests have an opportunity to object to the requests. For the current batch of IRS requests, the deadline for providing either the above information or objection was 20 December 2020. Following this date, the FTA will issue a final decree for each account relationship concerned by a group request.

  • Swiss Federal Council announces further development of financial market policy
    • 4 December 2020 the Swiss government announced a new strategic direction for its financial market policy, reflecting a changing international environment and rapid pace of technological evolution.

      The Federal Council considers this update to financial market policy to be necessary for Switzerland to affirm its standing and meet its potential as one of the world's leading financial centres. It has identified concrete action points around three key concepts: "innovative", "interconnected" and "sustainable".

      Existing and new financial centre players, it said, must be able to exploit the many possibilities offered by new technologies, such as data-driven business models, in an optimal manner. To enable this, the Federal Council is creating a technology-neutral regulatory framework and promoting innovation in the financial sector. The aim is to encourage standardisation and the opening of interfaces both within the sector and between state and business.

      In a changing international environment, the Federal Council said it actively represents Switzerland's interests both in multilateral bodies and with its bilateral partners, and promotes open markets. It provides attractive and internationally compatible conditions and pragmatic solutions for Switzerland which continue to enable a financial centre with global reach. Switzerland's advantages as a location are actively communicated to the rest of the world.

      Only a financial sector that aligns itself with the sustainable development goals under the 2030 Agenda is future-proof, it said. For this reason, the Federal Council, together with the competent authorities, ensures the fundamental stability of the sector, the integrity of the financial centre combined with the effective combating of financial crime and other risks and, with respect to climate change, greater transparency in investment.

  • Swiss Federal Council brings part of Distributed Ledger Technology law into force
    • 11 December 2020, the Swiss Federal Council brought into force the parts of the Federal Act on the Adaptation of Federal Law to Developments in Distributed Ledger Technology (DLT) that enable ledger-based securities to be introduced. The provisions will take effect as of 1 February 2021.

      The ‘blanket legislation’ was adopted by the Swiss parliament in September 2020 in order to adapt a number of different federal laws such that Switzerland could continue to develop as an innovative and sustainable location in the blockchain and DLT area.

      The amendments to the Code of Obligations, the Federal Intermediated Securities Act and the Federal Act on International Private Law that are envisaged in the DLT bill will now enter into force from 1 February 2021. These provisions enable the introduction of ledger-based securities that are represented in a blockchain. The remaining provisions of the DLT bill will probably enter into force on 1 August 2021.

      It is also envisaged that financial service providers serving solely institutional or professional clients will no longer have to affiliate to an ombudsman as of 1 February 2021. Financial institutions that provide no financial services at all do not have to be affiliated to an ombudsman.

  • Swiss government launches ‘finance.swiss’ information platform
    • 7 December 2020, the Federal Department of Finance (FDF) and the Federal Department of Foreign Affairs (FDFA) launched a new information platform ‘finance.swiss’ in partnership with operators in the Swiss financial sector. The platform, which is also the name of the internet address (www.finance.swiss), is intended to serve as a single point of contact for information on the Swiss financial centre, to increase awareness of its strengths and to act as a basis for greater promotional activities abroad.

      International promotion of the Swiss financial centre was one of the objectives of the new financial market policy presented by the Federal Council on 4 December. The platform is sponsored by both the Swiss Confederation (the State Secretariat for International Finance (SIF), the General Secretariat of the Federal Department of Foreign Affairs, and Presence Switzerland, the FDFA unit responsible for external communications) and the financial sector (Swiss Bankers Association, SIX, Asset Management Association Switzerland, Swiss Re, and Zurich Insurance).

       

  • Swiss government strengthens Switzerland as location for sustainable finance
    • 11 December 2020, the Swiss Federal Council adopted concrete measures to make the Swiss financial centre sustainable. They are designed to improve transparency, strengthen risk analysis and expand Switzerland's international commitment. The aim is to bolster the competitiveness of the Swiss financial centre and to ensure that it can make an effective contribution to sustainability.

      The Federal Council has adopted the following measures:

      -The federal authorities are to prepare the binding implementation of the recommendations of the Task Force on Climate-related Financial Disclosures (TCFD) by Swiss companies in all sectors of the economy;

      -The federal authorities have until autumn 2021 to propose to the Federal Council any necessary amendments to financial market legislation to prevent so-called ‘greenwashing’ – disinformation to present an environmentally responsible public image;

      -The Federal Council recommends that financial market players publish methods and strategies for taking account of climate and environmental risks when managing their clients' assets, in accordance with the existing legal duties of loyalty and diligence.

  • Switzerland and Luxembourg to return illicitly acquired assets to Peru
    • 16 December 2020, Switzerland signed a trilateral agreement with Peru and Luxembourg on the restitution of illicitly acquired assets that originate from acts of corruption in Peru. Co-operation with the Peruvian authorities has enabled the confiscation of around USD16.3 million in Switzerland and around EUR9.7 million in Luxembourg.

      The assets from Switzerland and Luxembourg will be channelled into projects to strengthen the Peruvian courts, law enforcement and judicial authorities. They will be used to support the digitalisation, standardisation and harmonisation of procedures, for education and training of personnel and to accelerate the implementation of Peru's new Code of Criminal Procedure.

      Previous co-operation between the Peruvian and Swiss authorities led to the restitution of illicitly acquired assets between 2002 and 2006, when Switzerland returned around USD93 million to Peru.

  • US Congress approves Act requiring companies to reveal ownership
    • 1 January 2021, the US Senate overturned President Trump's veto of the National Defence Authorisation Act (NDAA) for Fiscal Year 2021, which provides for the creation of a new central registry of the beneficial ownership of business entities formed in or registered in the US, as well as requiring many US companies to file annual reports of their beneficial ownership.

      The NDAA incorporates measures from the Anti-Money Laundering Act (AMLA) 2020, the Illicit Cash Act and the Corporate Transparency Act 2019, as well as expanding the Bank Secrecy Act and modernising and strengthening the US financial crime monitoring systems. The President had vetoed the bill over several unrelated policy objections but both the House and Senate voted in favour of the override by the two-thirds majorities needed to overturn a presidential veto.

      The measures mandate the Department of the Treasury to create a registry of beneficial owners for new and existing companies, which applies both to US-registered corporations and to non-US companies registered to do business in the US. The information will be administered by the Treasury's Financial Crimes Enforcement Network (FinCEN), and will be made available to law enforcement authorities, non-US enforcement agencies and financial institutions (FIs) attempting to meet their customer due-diligence requirements, although not to the general public. The NDAA does not define what constitutes 'substantial control' over an entity for an individual to qualify as a beneficial owner.

      The AMLA measures are intended to effect "comprehensive reform and modernisation" of the US Bank Secrecy Act 1970 to address the current money laundering and terror financing threat. The provisions of the Act include requiring streamlined, real-time reporting of suspicious activity reports through the establishment of channels of communication between FIs, law enforcement and regulators.

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