1 April 2016, British Virgin Islands financial institutions were notified that the BVI Financial Account Reporting System (BVIFARS) would now be ready to accept UK CDOT (Crown Dependencies and Overseas Territories) or UK FATCA filings by 2 May 2016.
Financial Institutions with relevant reportable accounts for 2014 and 2015 can submit their information to the International Tax Authority (ITA) as of this date, but no later than the following extended dates:
The extended deadlines only relate to reportable accounts being submitted via BVIFARS. As it relates to the Alternative Reporting Regime (ARR) under UK CDOT or UK FATCA, all information is to be reported no later than the original statutory deadline of 31 May.
6 April 2016, the Cayman Islands Ministry of Financial Services issued a statement following the release of the “Panama Papers” saying “the disclosure has further amplified the need for global cooperation”. A series of changes, which will begin to be enacted in June this year, will further strengthen Cayman’s legislative and regulatory framework.
This programme will include amendments to key pieces of legislation, such beneficial ownership provisions, the elimination of bearer shares (which have been immobilised in Cayman since 2001) and will repeal its Confidential Relationships (Preservation) Law by September 2016.
Under the current legal framework, anyone who divulges, wilfully obtains, or attempts to obtain confidential information covered by the scope of the law can face a fine of $5,000 and imprisonment of two years. The law will be replaced with the Confidential Information Disclosure Law, which will better clarify the mechanisms through which confidential information may be shared with appropriate authorities.
Minister of Financial Services Wayne Panton said: “These amendments are in keeping with our action plan, which was publicised in June 2013 immediately following the UK’s chairing of the G-8 Summit, to prevent the misuse of companies and legal arrangements.”
12 April 2016, the European Commission announced a proposed amendment to the Accounting Directive (Directive 2013/34/EU) to require that large multinational groups (MNCs) operating in the EU to publish annually a report disclosing the profit and the tax accrued and paid in each Member State on a country-by-country (CbC) basis.
The proposed rules would apply to EU-based parent companies of MNCs that have more than €750 million in net turnover. MNCs headquartered outside the EU would be subject to the rules where the group has more than €750 million in net turnover and the group operates in the EU through medium or large subsidiaries or branches (based on existing EU thresholds).
The proposal would apply to all industry sectors except for financial institutions already subject to the public reporting rules under EU banking legislation.
The report would have to include information relating to the ultimate parent undertaking of the MNC, including activities of all affiliated undertakings consolidated in the ultimate parent’s financial statements. The information to be disclosed would include:
The information would have to be disclosed for each EU member state in which the company was active. Non-EU information would be able to be aggregated, except for information related to certain jurisdictions that the Commission considers do not comply with “international tax good governance standards”. These would have to be reported on a CbC basis.
The Commission is to draw up a common list of tax jurisdictions that are considered with not to comply international tax good governance standards – based on criteria in its External Strategy for Effective Taxation issued in January – by the end of 2016. Tax jurisdictions will be assessed on compliance as follows:
Information in the CbC report would have to be provided in the currency used in the consolidated financial statements, and explanations would be required at the corporate group level where there are material discrepancies between the taxes actually paid and the taxes accrued.
The consolidated report on income tax information would have to be published with a business register in the EU and made accessible to the public on the company’s website in at least one of the official languages of the EU. Reports would have to be accessible for at least five consecutive years.
If the ultimate parent company for the group is incorporated in an EU member state, that parent company would be the entity responsible for preparing and publishing the public information report. If the ultimate parent company for the group is situated outside the EU, but the group has qualifying subsidiaries and branches in the EU, the non-EU parent would have the option of publishing its report on income tax information on its website and allowing one of its EU subsidiaries to file the report with an official business register in the EU. Alternatively, the EU-based medium and large subsidiaries (or branches of a comparable size where no such subsidiaries exist) each would be required to publish the report of the ultimate parent.
Vice-President Valdis Dombrovskis, responsible for the Euro and Social Dialogue, said: “Close cooperation between tax authorities must go hand in hand with public transparency. Today, we are making information on income taxes paid by multinational groups readily available to the public, without imposing new burdens for SMEs and with due respect for business secrets. By adopting this proposal, Europe is demonstrating its leadership in the fight against tax avoidance".
This proposal is closely linked to the revision of the Administrative Cooperation Directive, politically agreed by EU Member States in March 2016, which requires certain multinational enterprises to submit a CbC Report to EU tax authorities in line with Action 13 of the G20/OECD’s base erosion and profit shifting (BEPS) project. However the new proposal is separate and would require public reporting for companies operating in the EU.
The proposal has been submitted to the European Parliament and the Council of the EU. If adopted, the new Directive would have to be transposed into national legislation by all EU Member States within one year of the entry into force of the amended accounting directive.
15 April 2016, finance ministers of the G20 countries called for the creation of new blacklisting criteria for “non-cooperative jurisdictions” against which they intend to take “defensive measures”. The criteria are to be developed in conjunction with the OECD and published in July this year.
The announcement was made in a communiqué after the G20 meeting in Washington, which stated: “The G20 strongly reaffirms the importance of effective and widespread implementation of the internationally agreed standards on transparency. Therefore we call on all relevant countries including all financial centres and jurisdictions, which have not committed to implement the standard on automatic exchange of information by 2017 or 2018 to do so without delay and to sign the Multilateral Convention. We expect that by the 2017 G20 Summit all countries and jurisdictions will upgrade their (OECD) Global Forum rating to a satisfactory level.
“We mandate the OECD working with G20 countries to establish objective criteria by our July meeting to identify non-cooperative jurisdictions with respect to tax transparency. Defensive measures will be considered by G20 members against non-cooperative jurisdictions if progress as assessed by the Global Forum is not made. We look forward to the Global Forum report on transparency and information exchange for tax purposes before the end of the year.”
The G20 also reiterated that it is essential that all countries and jurisdictions fully implement the FATF standards on transparency and beneficial ownership of legal persons and legal arrangements. It particularly stressed the importance of countries and jurisdictions improving the availability of beneficial ownership information to, and its international exchange between, competent authorities for the purposes of tackling tax evasion, terrorist financing and money laundering.
“We ask the FATF and the Global Forum on Transparency and Exchange of Information for Tax Purposes to make initial proposals by our October meeting on ways to improve the implementation of the international standards on transparency, including on the availability of beneficial ownership information, and its international exchange,” said the communiqué.
14 April 2016, the UK, Germany, France, Italy and Spain announced a pilot scheme to exchange information on company beneficial ownership registers and planned new registers of trusts on an automatic basis. The plans were announced at an International Monetary Fund (IMF) meeting in Washington DC.
According to the G5 finance ministers' letter, beneficial ownership information relating to "companies, trusts, foundations, shell companies and other relevant entities and arrangements" will be exchanged "in a fully searchable format" and will include "information on entities and arrangements closed during the relevant year".
The exchange will initially operate as a pilot, during which participating economies will explore the best way to exchange this information with a view towards developing a "truly global common standard". This work should be led by the global Organisation for Economic Cooperation and Development (OECD), alongside the Financial Action Task Force.
Ultimately, the system should develop into one of "interlinked registries containing full beneficial ownership information,” according to the letter.
The OECD has already developed a common reporting standard (CRS), through which more than 90 countries will automatically exchange financial account information with other jurisdictions on an annual basis. The first exchanges by “early adopters”, which include the UK and its Overseas Territories and Crown Dependencies, will take place in 2017 with more countries due to begin participating in 2018.
UK companies and limited partnerships have been obliged, since 6 April, to keep a register of “people with significant control” (PSCs) – individuals who hold more than 25% of a company's shares or voting rights, have the right to appoint a majority of directors or have the right to exercise, or actually exercise, significant influence or control over the company.
Companies will have to supply the information to Companies House from 30 June 2016 when they file the company's annual confirmation statement. A company's PSC register can be inspected free of charge by those with a “proper purpose” and most of the information supplied to Companies House will be publicly available
Other major economies have committed to introducing similar registers that will be accessible to “competent authorities” and other limited categories of people with a legitimate interest in accessing the information.
UK chancellor George Osborne said that the G5 countries were "setting the pace on beneficial ownership transparency of not just companies but also trusts with a tax consequence.”
The G5 finance ministers have written to their G20 counterparts urging progress towards a fully global exchange of beneficial ownership information in order to remove "the veil of secrecy under which criminals operate."
Speaking in the UK parliament on 11 April, British Treasury Minister David Gauke revealed that British Crown Dependencies and Overseas Territories (CDOT) have also agreed to deliver information on company beneficial ownership to the UK authorities electronically within 24 hours, or within one hour in “urgent” cases, after months of negotiation.
CDOT leaders have all now signed an exchange of letters with the UK government confirming their commitment to establishing and maintaining a central electronic register of information or its equivalent and promising rapid cooperation with the UK authorities on access to this information – although none has agreed to make a central registry of beneficial ownership publicly available as the UK government originally requested.
“For the first time, UK tax and law enforcement agencies will see exactly who really owns or controls every company in those territories,” said Gauke.
21 April 2016, Luxembourg Finance Minister Pierre Gramegna confirmed to parliament that the government is to cut the corporate tax from its existing rate of 21% to 19% in 2017 and 18% in 2018.
Gramegna also announced an adjustment to proposed restrictions to the carrying forward of past losses by companies. Under existing rules, losses can be carried forward indefinitely and used to offset 100% of profits.
The original proposals would have permitted accumulated losses to be carried forward for 10 years and used to offset a maximum of 80% of profits. Gramegna told parliament that loss rules would be "supervised more strictly" from 2017, and while companies will be permitted to carry forward losses for 17 years from next year, they can only be used to offset 75% of profits.
26 April 2016, two former PricewaterhouseCoopers employees Antoine Deltour and Raphael Halet went on trial in Luxembourg facing charges of theft, secrecy violation and wrongfully accessing a database in relation to the so-called “LuxLeaks” documents, together with journalist Edouard Perrin who is accused of complicity.
The Luxleaks revelations revealed multibillion-euro tax agreements for companies including including Walt Disney Co., Skype, PepsiCo, Amazon, Ikea and Shire Pharmaceuticals. The leaks prompted calls for the resignation of Jean-Claude Juncker, Luxembourg’s former prime minister who is now president of the European Commission, and caused the European Commission to expand a tax subsidy investigation and propose new laws to fight corporate tax avoidance.
The criminal case stems from a complaint filed by PwC in June 2012, after it noticed the theft of documents revealing hundreds of confidential tax pacts between the Grand Duchy and multinational companies.
Deltour was charged in 2014 with “domestic theft, violation of professional secrecy, violation of business secrets, laundering and fraudulent access to a system of automatic data treatment.” Halet, whose name was revealed this month, was charged on the same counts in January 2015. Perrin was charged in April 2015 over his role as “co-author, if not an accomplice, in the infractions committed by a former employee of PwC”.
Earlier this year, Deltour was awarded the European parliament’s citizens’ prize and praised by the EU’s competition commissioner, Margarethe Vestager, for his actions. A group of MEPs has proposed draft directive to create a common framework shielding whistleblowers from prosecution and a “protected disclosure” defence.
11 April 2016, Finance Minister Bill English and Revenue Minister Michael Woodhouse appointed former PricewaterhouseCoopers chairman John Shewan to hold an independent inquiry to review whether New Zealand's foreign trust disclosure rules are fit for purpose. Shewan is to report back by 30 June.
The move followed the publication of the so-called “Panama Papers” in which New Zealand is mentioned more than 60,000 times. Mossack Fonseca has an office in the country. The terms of reference include reviewing foreign trusts' disclosure rules on record keeping, enforcement and the exchange of information with other tax jurisdictions.
"Ministers decided that in light of the 'Panama Papers' being released last week, it's worth looking at whether the disclosure rules are fit for purpose and whether there are practical improvements we can make," said English in a statement.
"Our foreign trust rules continue to attract criticism, including claims that New Zealand is now a tax haven in respect of trusts," the IRD said in a 2013 report. "This is largely because the mismatch between our rules and those of other countries may result in income not being taxed either in New Zealand or offshore. To protect our international reputation, it may be necessary to strengthen our regulatory framework for disclosure and record-keeping.”
New Zealand's provisions on tax secrecy are under scrutiny in a separate review of tax legislation, with the government looking to scale back New Zealand's privacy protections to allow more sharing of taxpayers' information. The government wants to let the Inland Revenue Department (IRD) share more information on an anonymised format to provide access to law enforcement authorities.
4 April 2016, the International Consortium of Investigative Journalists (ICIJ) published its initial findings in respect of 11.5 million files of confidential client information dating back 40 years that were hacked from Panamanian law firm and corporate services provider Mossack Fonseca.
ICIJ’s analysis of the stolen records revealed information on more than 214,000 offshore companies connected to people in more than 200 countries and territories. The data included emails, spreadsheets, passports and corporate records in respect of owners of bank accounts and companies in 21 offshore jurisdictions worldwide.
The ICIJ, together with the German newspaper Suddeutsche Zeitung and more than 100 other media partners, spent a year sifting through the files to expose the offshore holdings of politically exposed persons, wealthy individuals, criminals and celebrities. Amongst the findings revealed by ICIJ’s analysis were:
Mossack Fonseca has about 600 employees in 42 countries. The firm issued a statement denying any wrongdoing and noting that many of the named parties have never been its clients. “We strongly disagree with any statement implying that the primary function of the services we provide is to facilitate tax avoidance and/or evasion,” it said.
The OECD, which had warned G20 finance ministers in recent weeks that Panama was backtracking on its commitment to share information on financial accounts with other governments, called on Panama to meet international tax transparency standards.
"The consequences of Panama's failure to meet the international tax transparency standards are now out there in full public view," said OECD Secretary General Angel Gurria. "Panama must put its house in order, by immediately implementing these standards.”
The ICIJ said it would not make the complete set of 11.5 million documents available to the public or law enforcement but would continue to mine the information for details of public interest.
27 April 2016, Panama and the United States signed an intergovernmental agreement (IGA) to improve international tax compliance under the US Foreign Account Tax Compliance Act (FATCA).
Under FATCA, which went into full effect last year, US taxpayers must self-report more than $50,000 in foreign assets and foreign financial institutions (FFIs) must disclose information on US taxpayer accounts to the IRS through IGAs.
The Panama IGA is a Model 1 IGA, under which FFIs report all FATCA-related information to the competent authority in their own country, which will then transmit the information to the US Internal Revenue Service.
13 April 2016, the Swiss Federal Council released a draft law for consultation concerning the introduction of country-by-country reporting for Swiss-registered international firms. The draft law is based on Action 13 (Transfer Pricing Documentation and Country-by-Country Reporting) of the OECD’s Base Erosion and Profit Shifting (BEPS) initiative.
The draft legislation would require Swiss-parented multinational entities (MNEs) with annual consolidated group revenue of CHF900 million or more to comply with new transfer pricing and transparency requirements, with the first country-by-country (CbC) report due for fiscal years beginning on or after 1 January 2018.
Swiss MNEs may also file CbC reports for fiscal years beginning on or after 1 January 2016 in order to comply with rules in countries where CbC reporting requirements have already been introduced. The information will be transmitted to other countries where these companies do business. The data would be used for tax purposes only.
In January, Switzerland was among 31 countries to sign the Multilateral Competent Authority Agreement on the Exchange of Country-by-Country Reports. A number of tax information exchange agreements will have to be ratified by parliament before there is a legal basis for CbC reporting in Switzerland.
After consultation a final draft will be submitted to parliament. If approved, the legislation may be subject to a referendum and a public vote.
12 April 2016, Minister of State for Financial Affairs Obaid bin Humaid Al Tayer and Commercial Secretary to the UK Treasury Lord O’Neill signed a double tax treaty at the Ministry of Finance in Dubai. The agreement aims to enhance the economic and trade relations between the two countries, and protect companies and individuals from direct or indirect double taxation.
Lord O’Neill said: "This will fill an important gap in the framework for commercial cooperation between the UK and UAE. It will remove one area of possible uncertainty for the thousands of UK businesses operating in the UAE, and for the 100,000+ British nationals living and working in the UAE."
UAE signed an agreement on the promotion and protection of investments with UK, under a Federal Decree No. 26 in 1999. Both countries are also linked through the Joint Economic Committee, which held its fourth session in February 2013. UAE companies have invested in a number of key sectors in UK.
26 April 2016, the US District Court for the Southern District of Ohio dismissed a challenge by US Senator Rand Paul and several other plaintiffs seeking declaratory and injunctive relief against enforcement of the US Foreign Account Tax Compliance Act (FATCA). The court held the plaintiffs lacked standing to sue.
Under FATCA, which went into full effect last year, US taxpayers must self-report more than $50,000 in foreign assets and foreign financial institutions (FFIs) must disclose information on US taxpayer accounts to the IRS through intergovernmental agreements (IGAs).
The plaintiffs filed suit against the Treasury Department, the US Internal Revenue Service (IRS), and Financial Crimes Enforcement Network (FinCEN). They brought eight claims before the court.
The first was a challenge to the validity of the intergovernmental agreements (IGAs) with Canada, the Czech Republic, Denmark, France, Israel, and Switzerland. The second claim addressed the information-reporting provisions imposed on foreign financial institutions (FFIs). The plaintiffs’ third claim challenged FATCA’s heightened reporting requirements for foreign bank accounts.
The fourth and fifth claims challenged FATCA’s 30% tax on payments to FFIs from US sources when those FFIs choose not to report to the IRS about the bank accounts of their US customers and the 30% tax imposed on recalcitrant account holders who exercise their rights not to identify themselves as US citizens or waive privacy protections afforded their accounts by foreign law.
The sixth claim challenged the penalty for “wilful” failures to file a Foreign Bank and Financial Accounts Report (FBAR). Finally, the seventh and eighth claims argued the information-reporting requirements of FATCA and the IGAs were unconstitutional under the Fourth Amendment of the US Constitution.
The court held that all the plaintiffs lacked standing because they had failed to establish the concrete, particular harm that was a prerequisite to standing. As a result, the court granted the defendants’ motion to dismiss the case.
15 April 2016, US Treasury Secretary Jack Lew said, in a statement to the International Monetary and Financial Committee Meeting, that the effective implementation of international standards was a key issue for the US.
“To combat the misuse of companies, we are finalising a rulemaking that would require financial institutions to identify the beneficial owners of new customers that are companies. In addition, we are about to propose a regulation that would require the beneficial owners of single-member limited liability companies to identify themselves to the Internal Revenue Service, thus closing a loophole that some have been able to exploit” said Lew.
“We fully support the call for all countries to automatically exchange financial account information. The United States led the world in automatic exchange with the enactment of FATCA in 2010. We also are committed to implementing the OECD/G-20 BEPS project, including the requirement that large multinationals report to tax authorities certain financial and tax information on a country-by-country basis.”
4 April 2016, the US Treasury Department and Internal Revenue Service (IRS) issued temporary and proposed regulations to further reduce the benefits of and limit the number of corporate tax inversions, including by addressing earnings stripping. The Treasury has previously announced measures to combat inversions in September 2014 and November 2015.
As well as formalising the previous two measures, the new regulations seek to:
“Treasury has taken action twice to make it harder for companies to invert. These actions took away some of the economic benefits of inverting and helped slow the pace of these transactions, but we know companies will continue to seek new and creative ways to relocate their tax residence to avoid paying taxes here at home,” said Treasury Secretary Jacob Lew.
“Today, we are announcing additional actions to further rein in inversions and reduce the ability of companies to avoid taxes through earnings stripping. This will have an important effect, but we cannot stop these transactions without new legislation. I urge Congress to move forward with anti-inversion legislation this year. Ultimately, the best way to address inversions is to reform our business tax system, which is why Treasury is releasing an updated framework on business tax reform, outlining the administration’s proposals to date as a guide for future reform. While that work goes on, Congress should not wait to act as inversions continue to erode our tax base.”
The Obama administration published an updated strategy document for addressing inversions, which contains a list of countries that benefit disproportionally from the profits of US companies. The list, compiled by the Congressional Research Service, includes Ireland, Cyprus, the Netherlands, Luxembourg, the Cayman Islands, the British Virgin Islands, the Bahamas and Bermuda.
According to the OECD, the US corporate tax rate is currently 11.5% higher than the OECD average.