Herausforderungen der Besteuerung der Digitalisierung der Wirtschaft

Position

OECD-Consultation, February 13th to March 6th 2019 „Addressing the Tax Challenges of the Digitalization of the Economy�

Federation of German Industries e. V.

March 6th 2019

OECD-Consultation „Addressing the Tax Challenges of the Digitalization of the Economy”

Contents I. Executive Summary ..................................................................... 3 II. General Comments ..................................................................... 4 III. Specific Comments .................................................................... 5 A. Profit Allocation and Nexus Rules ................................................. 6 B. Global Anti Base-Erosion Measures ............................................. 8 About BDI ....................................................................................... 11 Imprint ............................................................................................ 11

OECD-Consultation „Addressing the Tax Challenges of the Digitalization of the Economy”

I. Executive Summary 1. High Impact on the German Industries As the voice of the German Industriy we would like to point out that any new tax legislation targeted at digital business models will most likely affect German industries which currently undergo a process of digital transformation too. The digital economy cannot be ring-fenced as the whole economy is becoming digitalized.

2. Global Agreement However, we recognize the critical need for a multilateral consensus-based solution to the perceived tax challenges of the digitalization of the economy. Any change of international rules or principles should be done through a comprehensive, coherent and co-ordinated approach between jurisdictions.

3. Legal Certainty The guiding principle for both pillars of the project “Addressing the Tax Challenges of the Digitalization of the Economy” should be the legal certainty for taxpayers and tax administration. Any reform of international taxation should be based on internationally established tax principles like taxation of net income, nexus, permanent establishment, and transfer pricing based on the arm’s length standard (all of them updated under BEPS).

4. Avoidance of Double Taxation An Agreement over the allocation of taxing rights or over a global minimum level of tax must ensure that this does not lead to an increase in double taxation risks and additional administrative burden on companies. Double taxation harms business innovation and growth. Hence, any changes to the existing international tax framework must seek to avoid double taxation and unintentional non-taxation.

5. Improvement of Dispute Resolution Strong and efficient dispute resolution mechanisms are a key element in providing legal certainty for tax payers as well as tax administrations. It is essential that dispute resolution and dispute prevention mechanisms will be improved and aligned with any of the proposed changes of the international tax system.

6. Allocation of Losses It is critical, that the profit allocation system fully contemplates losses as well as profits in order to be economic and to reflect business reality. Therefore, the proposals should reference generally to “income or loss”.

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OECD-Consultation „Addressing the Tax Challenges of the Digitalization of the Economy”

II. General Comments For both pillars – the revised profit allocation and nexus rules as well as the global anti-base erosion measures – any consensus reached must be perfectly clear in meaning and unconditionally binding in implementation. It might be considered whether this could be reached by some kind of “Super MLI”. All countries engaged in the Inclusive Framework would have to mandatorily agree in a treaty coming into effect simultaneously for all countries and without any additional options for the signatories.

We would also appreciate guidance on how to carry out necessary changes of the national tax law. This holds in particular for the global anti-base erosion measures. Since many countries already have targeted rules in place e.g. resulting from BEPS Action Point 2 “Neutralizing the Effects of Hybrid Mismatch Arrangements”, BEPS Action Point 3 “Control Foreign Company Rules” or BEPS Action Point 4 “Limiting Base Erosion Involving Interest Deductions and other Financial Payments”, we would appreciate guidance for the relationship of the measures to achieve a worldwide identical application of the new global antibase erosion standard.

A level playing field necessarily includes the prevention of double taxation. In consequence we do not only ask for a binding arbitration mechanism for all countries that want to apply any of the new rules. Besides such ex post dispute resolution, guiding principles for all recommendations given by the OECD should be provides as ex ante dispute prevention. All countries engaged in the process, also those expecting possible revenue gains, should be aware that a slowdown of economic growth due a distortion of value added chains, caused by unclear tax law and resulting in hardly predictable tax liabilities, can be more costly than any waiver of taxing rights. In particular, lower levels of consumption and employment would be associated not only with a loss of CIT but also VAT and PIT.

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OECD-Consultation „Addressing the Tax Challenges of the Digitalization of the Economy”

III. Specific Comments Summary: ▪

The guiding principle for both pillars of the project “Addressing the Tax Challenges of the Digitalization of the Economy” should be the legal certainty for taxpayers and tax administration. The tax certainty is one of OECD’s longstanding objectives and should not be given up now.

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Taxpayers as well as tax administrations are interested in a stable and sustained regulatory framework. Frequent changes, such as of the guidance of the OECD Transfer Pricing Guidelines 2017 on the treatment of marketing intangibles, lead to significant legal uncertainties.

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For profit allocation between source country and market economy the arm’s length principle should not be given up easily, since it is able to capture the individual circumstances of a transaction.

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The market economy and the source country must share a common understanding about the amount of profits generated before any kind of reallocation may be done.

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BDI rejects any kind of ring-fencing; with respect to “digital businesses” and with respect to B2B an B2C businesses.

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BDI asks for clear and binding rules on how decentralized distribution patterns shall be treated.

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Recent investment decisions were based on the individual level of taxation existing up to then in the countries taken into account. In consequence any minimum level for an effective tax rate should be set with care.

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To create a level playing field, BDI would strongly advise for an agreement on a uniform worldwide level of effective minimum taxation to be achieved.

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The design of any global anti base-erosion measures must prevent double taxation by simultaneous application of both different aspects of the global anti base-erosion measures and targeted measures resulting from the implementation of the BEPS action points.

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To simplify the administration, BDI asks for an exemption clause for payments between entities in countries committed to the global anti base-erosion standard from being tracked and being under investigation.

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It is essential to improve dispute resolution: The German industry not only asks for a binding arbitration mechanism for all countries that want to apply any of the new rules. Besides such ex post dispute resolution, a guiding principle for all recommendations given by the OECD should be an ex ante dispute prevention.

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OECD-Consultation „Addressing the Tax Challenges of the Digitalization of the Economy”

A. Profit Allocation and Nexus Rules All three concepts, the user Participation Proposal, the Marketing Intangibles Proposal and the Significant Economic Presence Proposal, share the idea of generating a concept to attribute taxing rights to the market economy. Contrary to existing concepts a physical presence is not mandatory. Differences exist with respect to the underlying reasoning resulting in different scopes and different dimension of tax base that would be reallocated to the market economy. Additionally, the tax base would differ with respect to two aspects: (i) the companies (business models) falling under the scope and (ii) the fraction of the tax base of each company subject to tax in the market economy.

We believe all countries engaged in the BEPS Inclusive Framework have their specific fiscal needs and want to maintain a constant level of public expenditure. We therefore ask all governments for a careful calculation of the fiscal impact of each proposal on its country.

Basically, it can be expected that there will be a reallocation of taxing rights from countries where a company, often a multinational enterprise (MNE), is established for tax purposes by a physical presence (source country, SC) to the market economy. Even though for the Marketing Intangibles Proposal a redesign of the arm’s length principle is briefly discussed, the residual profit split method seems to be the somewhat preferred method to carry out this reallocation.

Unfortunately, the draft completely lacks guidance for the previous step on how the profit to be split shall be calculated. In our opinion both the market economy and the source country must share a common understanding about the amount of profits to be split. Hence to generate a level playing field a worldwide consensus must be found. Since the market economy does not have any access to information about a taxpayer without physical presence, we strongly recommend that any market economy has to accept the standards of the source country for the calculation of taxable profits. Otherwise double taxation seems to be inevitable. This would also lead to the situation, that a market economy would receive a different amount of profits related to identical sales in its jurisdiction with respect to different source countries involved.

Further the alleged “intrinsic functional link” (no. 30 et seq., no. 59) as a basis for reallocation of profits would be in conflict with the just recently introduced guidance on marketing intangibles in par. 6.76 of the OECD Transfer Pricing Guidelines 2017 which require an in-depth analysis of DEMPE functions, risks and assets of all involved parties, by considering the facts and circumstances of the individual case.

Taxpayers as well as tax administrations are interested in a stable and sustained regulatory framework. Frequent changes, such as of the guidance in par. 6.76 et seq. of the OECD Transfer Pricing Guidelines 2017 on the treatment of marketing intangibles, lead to significant legal uncertainty. While the page www.bdi.eu

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recently adopted DEMPE rules for trade intangibles and technology-related intangibles, respectively, turn out to be very challenging in their practical application, another set of rules for marketing intangibles would even further complicate and conceptually fragment Chapter VI of the OECD Transfer Pricing Guidelines 2017.

For both proposals the OECD considers applying a formula in the framework of the residual profit split as preferred method for the calculation of the profits related to user value creation or marketing intangibles (no. 27 and 47). Conceptually, such a split of global or “combined” profits could no longer be called a transactional “profit split”. It is indeed a global formulary apportionment. In the OECD Transfer Pricing Guidelines 2017, however, the global formulary apportionment is strongly rejected as being not in line with the arm’s length principle. The guideline stress that a global formulary apportionment “would not be acceptable in theory, implementation or practice” (OECD TPG 2017, par. 1.15; detailed discussion ibid., par. 1.16 et seq.). Additionally, it can be questioned whether a formulary apportionment shall be carried out in a residual profit split Framework. This would mean to subtract the part of profits related to routine functions from total profits first, thus, to reduce the amount of profits to be split between R&D intangibles and marketing intangibles. In principle the same result could be obtained by amending the formula respectively. In our opinion the application of the residual profit split method only makes sense if the whole procedure is based on the arm’s length principle.

Since OECD states the development of the proposal for a significant economic presence is at an early stage (no. 69), we will not further comment on this. In the comparison of the Participation Proposal and the Marketing Intangibles Proposal the OECD discusses distinctions in scope (no. 67), B2C vs. B2B models (no. 42) and business lines. In its previous statements BDI strongly rejected the ring-fencing of the digital economy. First, we would like to extend this statement to the rejection of any kind of ring-fencing. Business models undergo constant changes and any distinction made today may lead to conflict in the future. For this reason, we will not comment on the UC proposal any further since the scope for application is explicitly limited.

We therefore would not recommend limiting the Marketing Intangibles Proposal to B2C businesses, as it is done in the paper. Already today, there are companies being active in both B2C and B2B markets, having strong marketing intangibles that might contribute to profits in both segments.

We are well aware that, without the restrictions discussed above, the amount of profits reallocated to a market economy may increase significantly. However, in our opinion consistency and prevention of future conflicts require a uniform application of any proposal.

Furthermore, if taxing right shall be reallocated in all situations in which businesses have significant marketing intangibles that can be attributed to www.bdi.eu

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OECD-Consultation „Addressing the Tax Challenges of the Digitalization of the Economy”

customers of a market jurisdiction, decentralized distribution structures must be taken into account too. We ask for clear and binding rules, how a combination of physical presence with related expenses in a market economy and the reallocation of profits due to marketing intangibles shall be treated. In our opinion, this is not only important if local affiliates are organized as a limited risk distributor but is in particular relevant if these affiliates bear risks and carry out (some) DEMPE functions and, in consequence, there is already a reasonable amount of profits attributed to the presence in the market economy. A possible solution could build on the OECD work done on safe harbours. This concept could be useful for designing a modified approach for a distributor’s return. Safe harbours are similarly approximate as a formula apportionment and are not strictly adherent to the arm’s length principle.

A possible solution for the question raised above could be a further development of the arm’s length principle. This is also briefly discussed in the consultation paper (no. 45) and should be elaborated further. In our opinion this principle should not be given up easily. With a further development of the arm’s length principle there would also be no need to find a way how to treat losses, since they are already fully integrated in that principle. However, if countries engaged in the BEPS Inclusive Framework wish to reallocate taxing right in a different way, it must be assured that no taxes are due in any country if losses are incurred. In our opinion, profits and losses must be reallocated equally.

Finally, it can be questioned whether a more formulary approach for a residual profit split (as discussed in no. 47) will be consistent with future developments. While at first glance seeming simple it seems very difficult to implement a mechanism adopting a once existing formula to future changes in the relevance of profit drivers. Future contribution of marketing intangibles compared to R&D intangibles and related functions to total profits may rise or shrink and vice versa. Having an inflexible formula not capturing these changes may lead to the same pressure on profit allocation and nexus rules as we observe currently.

B. Global Anti Base-Erosion Measures As mentioned before, the German industry is asking for a level playing field.

When introducing global anti base-erosion (GLOBE) measures it firstly should be taken into account that all recent investment decisions and the resulting design of value added chains were based on the individual level of taxation existing up to then in the countries investigated and taken into account. Altering these levels of taxation to a new minimum level, deprives these calculations and investment decisions of their basis. In consequence, every minimum level for an effective tax rate should be set with care. This is utmost important, since a substance carve out would seemingly not be possible according to no. 91. With this approach the GLOBE proposal disregards the basic premise on which the BEPS action plan is based, which is to ensure www.bdi.eu

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taxation where value is created. Therefore, we strongly advocate for the introduction of a standardized escape possibility based on substance and/or activity in the countries that according to the proposal “have not sufficiently exercised their primary taxing rights”. The definition of such substance and/or activity requirements could be based on a combination of various criteria (e.g. capital investments, education level of employees, etc.).

With respect to the creation of a level playing field we would strongly advise for an agreement on a uniform worldwide level of effective minimum taxation to be achieved. Otherwise consequences of GLOBE will be different for every country where a payor or payee is established. In particular, if high tax countries are involved, businesses would be seriously harmed, if effective taxation would be uplifted on their levels. Since a consistent effective tax rate test will have to be developed anyway, the underlying principles for this test could be used to define a worldwide effective minimum standard as well.

Additionally, if e.g. the level of taxation where the ultimate parent is established should be realized by GLOBE, each payment would have to be tracked down from the first payor to the final recipient resulting in serious administrative issues discussed later. Furthermore, any measure agreed upon should be strictly limited to payments between related parties and not – as discussed in no. 107 – extended to a broader scope. The taxpayer can neither provide evidence about the level of effective taxation of an unrelated party nor can be made responsible for any kind of arrangement of that unrelated party.

Another important issue is the prevention of double taxation caused by a parallel application of the two components of the GLOBE, the income inclusion rule and the tax on base erosion payments within a MNE. The former is meant to include (low taxed) profits of foreign affiliates generated abroad in the tax base of the parent entity while the latter tackles payments that would be (insufficiently) subject to tax abroad by a denial of deductibility. For a MNE with a large number of affiliates it seems easily possible that both aspects may be associated to the same series of payments at the same time. In other words: While the income inclusion rule is targeted at outbound investment and the subject to tax rule at inbound investment, this scheme cannot fully describe the structure of an MNE. In particular, if the definition of the minimum level of ownership or control raised in no. 105 also includes indirect control a highly sophisticated pattern of application will be needed. This will have to be complemented by an alignment of the GLOBE with already existing anti-abuse measures as already mentioned in the general comments.

Another part of the measures that could give rise to double taxation is the idea the undertaxed payments rule should cover imported arrangements (no.

104). In our understanding, this approach shall apply to a series of payments of which the first ones are taxed at a sufficient level but the consequent payments are considered being undertaxed. To demonstrate possible double taxation issues, we would like to simplify the explanation by an example.

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Example: ▪

Consider a payment of country A to country C of 80 and a payment of country B to country C of 90. In a subsequently following series of payments between related parties starting from C there is a payment from Country G to country H of 100 considered being undertaxed.

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Firstly, to ensure the level playing fields, all countries engaged in the BEPS Inclusive Framework adopting the GLOBE need access to a system of information exchange allowing them to enforce the undertaxed payment rule.

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Secondly, clear rules will be needed which amount of payment will be denied by each country. If country A and B receive information about a low tax situation of 100 between countries G and H this basically allows a denial of deductibility for both A and B.

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However, simultaneous action of A and B would result in serious double taxation which must be avoided.

If countries engaged in the OECD Inclusive framework do insist on measures against imported arrangements anyway, we would ask first for clear guidance how to apply the rules and second for a binding commitment of all countries to ensure a sufficient level of taxation allowing for an exemption for all payments between entities in committed countries from being subject to GLOBE. Another issue raised is whether the effective tax rate test shall be applied on a “transaction by transaction” or an “entity by entity” basis. We consider the former as giving rise to the administrative burden in an extreme way for both tax payers and tax administrations. Additionally, it could be very difficult to provide reliable evidence for causalities between payments in general. In our opinion, the only exemptions of the entity by entity principle as already applied in existing CFC rules should be made for predefined exclusions from the scope of the GLOBE. BDI believes the GLOBE would restrict countries very seriously in their instruments of tax related economic policy if applied uniformly for all payments which in turn makes a general consensus and an agreement very difficult. Thus, we would ask for a well-designed scope of payments covered, even though the concept of undertaxed payments basically would not allow for this. In our opinion it should be considered whether payments to nexusconform patent box in line the OECD-BEPS 5 recommendations could be exempted, since this is regarded as not being harmful. Another example could be the exemption for a temporary tax holiday granted by countries for a special kind of investment or an investment in a special region.

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About BDI The Federation of German Industries (BDI) communicates German industries’ interests to the political authorities concerned. She offers strong support for companies in global competition. The BDI has access to a wide-spread network both within Germany and Europe, to all the important markets and to international organizations. The BDI accompanies the capturing of international markets politically. Also, she offers information and politico-economic guidance on all issues relevant to industries. The BDI is the leading organization of German industries and related service providers. She represents 36 inter-trade organizations and more than 100.000 companies with their approximately 8 million employees. Membership is optional. 15 federal representations are advocating industries’ interests on a regional level.

Imprint Federation of German Industries e. V. (BDI) Breite Straße 29, 10178 Berlin, Germany www.bdi.eu T: +49 30 2028-0 Contact Dr. Monika Wünnemann Head of Department Tax and Finance T:+493020281507 m.wuennemann@bdi.eu Ralph Brügelmann Senior Manager Tax and Finance T: +3227921012 r.bruegelmann@bdi.eu BDI document number: D 1028

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