Category Archives: BEPS

The new political economy and geography of global tax information exchange

The OECD has recently released information on the two most important recent global networks of global tax information exchange. They are, respectively, the networks of exchange of country-by-country reporting (CBCR) and exchange of financial account information (through the Common Reporting Standard, CRS).

These networks give a unique look into the new political economy and geography of global tax information flows. CBCR and CRS data are, arguably, the cornerstones of modern global tax information cooperation, providing crucial data on the foreign activities of national individuals and companies. The CBCR is an annual report for large multinational groups (revenue +€750m) that states their jurisdictions of operation, the nature of business in each country, the tax paid along with a host of economic activity indicators. The CBCR is typically filed in the corporate headquarter’s country of residence, then shared on request with other countries as needed. Through the CRS, each government compiles data from national banks on the financial accounts (balances, interest, dividends, and financial asset sales proceeds) of non-citizens, which is then exchanged automatically with those citizens’ home competent authorities.

Therefore, it is also highly interesting to look at the global network of these information flows – who has access, who doesn’t, and who is connected.

So I scraped the data off the OECD website and analysed it. And what I found provides a very interesting picture of the modern tax information networks.

At the time of writing, there were around 700 (CBCR) and 1600 (CRS) bilateral exchange agreements established. (I’m not sure why OECD say 1800 CRS agreements because there’s only 1600 unique agreements in their data). Given that the CRS was launched four years ago and CBCR only two, the discrepancy is natural. Taken together, the 2300+ agreements are a quite fascinating data set. Let’s look at each in turn, and then the two together.

First, however, a key caution must be noted. While the CBCR and CRS provide key recent mechanisms of tax information exchange, they are by no means the only mechanisms. Preceeding the new CBCR and CRS networks are established networks of bilateral “by request” exchange of information networks (the previous OECD standard), bilateral tax information exchange agreements (TIEAs) and tax treaties with info exchange clauses. Given that these have been in place for much longer, they are naturally more dense than the new networks. Still, CBCR and CRS are the frontier and are replacing these older standards exactly because of their limitations. Thus, the analysis below provides a picture of the emerging state-of-the-art within global tax information exchange.

The global CBCR exchange network

I tweeted out the network the other day, and it looks like this:

cbcr network

(Size by degree (number of links); node colour by region; and network layout by ‘ForceAtlas2‘.)

There are a few caveats to be noted before drawing lessons from this picture. First, the novelty of CBCR shapes the network look substantially. The picture is dominated by European countries, but that is understandable given 55% of all CBCR exchange agreements are formalised by EU Directive 2016/881/EU on automatic exchange of tax information (the rest are individually negotiated CBCR MCAAs). Second, the absence of the USA is noteworthy. While the USA has been reluctant to commit to reciprocal information exchange of bank account data, that is not the cause for CBCR. Simply, US CBCR filing requirements will kick in on 31 December 2017, as in most jurisdictions, but later. It is almost assured that the US will develop an extensive exchange network to protect US MNEs from local filing demands. Other countries with late filing requirements that will be expected to build substantial exchange networks as we go include Hong Kong, Japan, Russia and Switzerland. The whole network is expected to increase substantially over the next few years, as the remaining CBCR MCAA signatories (as of today, there were 57) conclude and report agreements.

That said, what we can see is that the current global CBCR network is all about Europe, OECD members, and a few small offshore centres. That picture likely won’t change too much. The almost complete absence of South America (beyond Brazil and Uruguay), Asia (beyond Malaysia), and Africa (beyond South Africa and Mauritius) stands out. This has attracted renewed criticism that the OECD tax policy-making processes are not inclusive of developing countries. However, it should be noted that the OECD has moved in the direction of bringing developing countries more closely in to its tax work, including through the BEPS Inclusive Framework, so there is potential for a broadening of the geographical concentration in the CBCR exchange network.

It is also worth noting that the picture indicates a very clear “you’re either in or you’re out” trend. There are currently 45 countries exchanging CBCR data, and none of these have less than 23 agreements (maximum of 43). If you are set up to exchange CBCR data, you are ready to exchange it with many partners.

More broadly, I think the network shows quite nicely the varying allegiance to the OECD international tax consensus. The European Union, in particular the European Commission, has become an increasingly autonomous player in international tax affairs but also a close ally of the OECD on many counts. The centrality of Europe in the global CBCR network is a representation of this position.

The global CRS exchange network

CRS exchange network.png

(Again, size by degree (number of links); node colour by region; and network layout by ‘ForceAtlas2‘.)

The global CRS network provides a somewhat more developed but not substantially different picture of the new political economy and geography of global tax information exchange. The fact that we have 62 countries (as opposed to 45) and more than twice the number of exchange agreements makes for a more pronounced illustration.

Again, it is worth noting some points on the data. Once more, EU is massively present. This is partly because of its speed in implementing effective CRS legislation. Thus, 35% of CRS exchange relation are down to EU instruments, including EU Directive 2014/107/EU. However, EU members have also been active in concluding agreements with non-EU members. The remaining 65% of exchange relations are concluded as individually negotiated CRS MCAAs, plus ten exchange agreements through the UK CDOT (Crown Dependencies and Overseas Territories International Tax Compliance Regulations). We can also see that, again, the US is absent. However, here we should not expect it to develop a network at a later stage. Due to the presence of FATCA, the US’ own financial account information standard, there has been no desire to also sign up to the CRS. Finally, the CRS network is also expected to increase and broaden its geographical scope over the coming years as the remaining of the AEOI-committed countries (100 at the time of writing) conclude and report on exchange agreements.

Beyond that, the political geography of the CRS network is notably similar to that of the CBCR network: It’s all about Europe and OECD members, with a few small offshore centres mixed in. Like the CBCR network, the absence of developing states has also contributed to criticism of the CRS standard. Once again, we can also see that it’s very much an “you’re in or you’re out” picture. 62 countries have CRS exchange agreements, and only one (Bonaire, Saint Eustatius and Saba) has less than 29 agreements in place.

Another nugget that I found quite interesting in the data: There are around 350 CRS agreements that are only reported by one of the two jurisdictions to the OECD. All other relationships are reported by both jurisdictions. For instance, Anguilla’s CRS exchange agreement with Argentina is only reported to the OECD by Anguilla, not Argentina. And there is a certain trend with these 350 agreements. They are all reported by the following countries: Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Croatia, Cyprus, Korea, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Mauritius, Mexico, Monaco, Montserrat, Netherlands, Romania, Saint Vincent and the Grenadines, Turks and Caicos Islands. Most of these countries are small (island) states with noteworthy financial centres, or what some might label tax havens.

There are a few possible explanations, but my guess as to what is going on here is this: Countries most at risk of reputational damage and political wrath from non-compliance are making sure they report all of their exchange relations to the OECD as soon as possible. They simply want to make sure it is noticed when they are conforming to expectations, when they are “doing good”.

The global tax information exchange network (CBCR + CRS)

Total global information exchange network

(Size by weighted degree (number of links, weighted by strength); node colour by region; and network layout by ‘ForceAtlas2‘.)

Here, I’ve added the CBCR and CRS relationships together, giving us a picture of who is truly able to access modern global tax information flows. The bolder the link, the more weight it has, indicating access to both CRS and CBCR information from international exchange.

Having noted caveats to the data above, the picture that emerges here is, as we might have expected, more pronounced but similarly indicative as the individual CBCR and CRS networks. The observations barely need repeating, but for good measure: there’s EU/OECD dominance with a few financial centres mixed in, an absence of the US and developing countries, and a strong in-or-out dynamic.

Given the current structural factors contributing to this network layout, the main factor with potential to substantially change this picture is change in the overall political economy of global tax governance. This may yet happen, e.g. through the BEPS Inclusive Framework, but may also very well not happen due to geopolitics or other factors.

There will be more analysis to do on this data, and it will be interesting to follow the longitudinal development of these networks. I will certainly continue my work in this area, as I’m sure others will. For now, however, a very interesting picture is emerging of the new political economy and geography of global tax information exchange.

Technical politics, sovereignty and the prospects of tax multilateralism

International tax cooperation is hard. Especially when it challenges national sovereignty. Sovereignty is close to heart for politicians. Taxation remains a cornerstone of the nation-state and of the social contract. Governments are not liable to relinquish absolute authority on tax matters.

So, at least, the story goes. Indeed, the reality – and the associated perception – of taxation as the ultimate prerogative of sovereigns (alongside the use of force) has fundamentally shaped all kinds of analysis of international tax matters. In political science, for instance, the predominant approach to international taxation relies on realist models of inter-state power battles. When tax is the point of discussion, states are the relevant players and power is the game, with sovereignty at the core of the underlying dynamics.

That’s why, it is said, for instance, that the European Union has never been able to take control over direct tax regulation, although its powers span an otherwise extensive array of national legislative agendas.

Sovereignty is also cited as a key criticism of the European Commission’s recently re-launched proposal for a Common Consolidated Corporate Tax Base (CCCTB). The CCCTB, of course, is the Commission’s flagship initiative to harmonise calculation of companies’ taxable profits, ridding the private sector of having to deal with 28 (soon to be 27) different such rulebooks. The CCCTB would revolutionise the corporate income tax system in the EU, moving from one of tax base allocation based on the arm’s length and separate entity principles, towards one based on unitary taxation, with tax base allocation through formulary apportionment, i.e. divided between Member States according to local sales, labour costs and assets.

More importantly, the CCCTB would mean EU Member States surrendering national sovereignty on tax matters. Effectively, rules for deductions, incentives and so forth would come under the control of the EU system, with individual countries having to obey rules agreed at the supranational level, and going the multilateral EU route to any substantial changes.

Whereas the CCCTB has been lamented as largely ‘doomed’ because of the EU’s sovereignty-challenging, hard law, bargaining-based policy process, another major multilateral tax initiative, the OECD-led, voluntary, soft law, consensus-based Base Erosion and Profit Shifting (BEPS) project, has been praised for its speedy and effective solution-building.

However, both projects are indicative of increasing international tax cooperation. They have much more in common than usually discussed, and that tells us something about the general prospects for tax multilateralism. While national sovereignty and power politics are important barriers to tax cooperation, they have been overemphasised at the expense of alternative understandings of the lack of traction for the CCCTB and similar initiatives.

Here, I want to expand on this argument, drawing two key distinctions, namely between political and technical policy arenas, and between legal and effective sovereignty, in understanding the outlook for international tax cooperation.

Technical vs. political levels

Every policy decision, every policy process, develops at the intersection of two key policy arenas: the political arena and the technical arena.

At the political level, we see most clearly the distinctions described above. Hard law vs. soft law; sovereignty vs. cooperation; my country interests vs. your country interests; etc. The primary actors are states, embedded in distributional conflict.

The technical level, however, is different. I have written elsewhere on the topic so I shall keep it short. Suffice to note that the protagonists here are primarily experts and professionals, bureaucrats and advisers, working to build credible technical solutions, with country interests and high politics in the background.

Each level is important in a policy process, although one may weigh more heavily at certain points and in certain settings. But the relation is key. The technical level shapes the political level, and vice versa. Experts influence what can and cannot be proposed and discussed and accepted as policy issues and solutions; politicians influence the framework in and speed of which certain policy topics are taken up, and so forth.

At the same time, the ‘technical’/’political’ distinction should not be overemphasised. What is technical is political: a minor, seemingly technical addition to a policy recommendation may have enormous distributional consequences. And what is political is technical: politicians’ ability to promote technically authoritative arguments in proposing issue solutions is central to policy success.

While popular explanations typically highlight dynamics at the political level – country interests, national sovereignty and distributional politics – as the preeminent cause of policy success or failure, the technical level remains underappreciated.

The success of the BEPS project, for instance, has not merely been down to goodwill from the G20 and OECD nations, but, to a great extent, it is a consequence of dynamics at the technical level, as I have written elsewhere. Consensus around key technical BEPS provisions throughout a significant international community of professionals has played a central role in effective policy uptake. The delivery of technically strong, agreeable solutions from the technical level to the political level, while still needing to be ratified, was essential in inclining political decisions and a major contributor to widespread implementation.

Similarly, while the CCCTB’s difficulty is usually ascribed to power politics, I would argue that it may have as much to do with technical opposition. The Commission’s proposal faces a number of key technical-level barriers. Several specific provisions have received negative scrutiny, in particular the R&D superdeduction. More generally, the CCCTB is an attempt at wholesale replacement of 28 distinct corporate tax systems, each with vested technical stakeholders, along with the complete overhaul of the international tax system and demolition of entrenched, well-established and well-supported legal and economic principles. It is safe to say there is extensive technical-level resistance to the proposal.

Thus, technical-level entrenchment may provide a barrier just as significant as power politics to the CCCTB and EU tax multilateralism in general – even if the interplay of high politics and technocracy is decisively different in OECD and EU. Power politics may play a more significant role during policy formulation and decision-making in the EU compared to the OECD. But there are also important overlaps. For instance, there is significant similarities in the nature and make-up of the community of professionals involved in the technical levels in the EU and the OECD. Differences are, in my view, not so substantial that they undermine the importance of the technical arena in the EU.

Legal vs. effective sovereignty

Another underappreciated distinction in analyses of tax multilateralism is that between effective and legal sovereignty. Many analyses of international tax cooperation have highlighted governments’ aversion to surrendering (legal) sovereignty on tax, their desire to retain the full right to design policy, in explaining lack of traction for tax multilateralism. However, this argument unduly evades the fact that tax multilateralism may, and indeed does, effectively challenge national sovereignty even if it does not do so strictly as a matter of law.

Going back to the BEPS and CCCTB, from a sovereignty perspective, these projects again seem entirely different on the surface. CCCTB is hard law, requires formal pooling of sovereignty, is embedded in the complexities and frictions of the EU system, and has immediate and highly visible inter-nation distributional consequences. BEPS is soft law, based on consensus cooperation, born out of a flexible, technicised OECD process, and has fewer obvious ‘cui bono’ implications.

But although BEPS is seemingly of a softer nature, indications are that it actually behaves similarly to legally binding projects. Countries around the world are implementing key BEPS provisions in a way remarkably close to recommendations. As a matter of law, there was no imperative to do so, but as a matter of practice, there is. The technical-level consensus and dissemination of policy discourse plays a central role here, alongside national political commitments to the OECD and its tax policy processes. Indeed, OECD tax outputs have been known to take on legal ‘hardness’ (cf. 1, 2, 3). Formally, the BEPS recommendations retain ‘soft’ qualities – they can be unilaterally changed at political will – but in practice, there is a strong normative allegiance. As a matter of law, it is non-binding, but effectively… well, if not outright ‘binding’, then certainly something closer to binding than non-binding.

In the same way that international tax competition de facto undermines national sovereignty (effectively constraining national policy choices), while de jure leaving it untouched (nations formally retain the right to design policy), we might say that BEPS de facto is a pooling of sovereignty, although de jure it is not. National sovereignty has effectively been pooled or surrendered as a result of the BEPS process.

Of course, policy-makers may not perceive it as so. They may never articulate it. And they may rightfully hold that the distinction remains crucial. But the increasing trend towards tax multilateralism – indicated by both BEPS, CCCTB and a host of other international initiatives – may well be a result of increasing recognition that pooling of sovereignty is essential in order to improve the international tax system, whether that is effective or legal sovereignty-pooling. As German political scientists Thomas Rixen and Philipp Genschel have argued, countries can only curb tax competition by relaxing sovereignty or unilaterally engaging in double taxation:

Udklip

Thus, the emphasis on governments clutching to legal national sovereignty is perhaps somewhat overemphasised in accounts of tax multilateralism.

The Prospects of Tax Multilateralism

So what does this mean for the prospects of tax multilateralism more broadly?

In my view, the lack of traction for the CCCTB, due to continued challenges at the political and technical levels, should not be seen to crumble the overall prospects of tax multilateralism in the EU or beyond.

On the contrary, it seems to me that the underlying dynamic of political-technical interplay in international tax provides fertile ground for tax multilateralism, as both BEPS and the attempt at CCCTB testifies to. The lesson, rather, is that tax multilateralism has to happen under the right circumstances.

The CCCTB may be a dead fish, but this may be less about absolute adversity towards pooling/surrendering tax sovereignty than it is about adversity towards the particular modality and scope of pooling/surrendering tax sovereignty in the CCCTB case. It is the specific characteristics of the CCCTB – the extensive scope of the overhaul, the distributional implications, etc. – that explains its inability to get off the ground, while BEPS has shot out of a cannon. The long list of technical issues associated with the CCCTB regime, alongside the political squabbles, is not a recipe for success. In that sense, the CCCTB may be more fraught than BEPS ever was, asking for a more expansive and apparently unappealing pooling of sovereignty, underpinned by slow and friction-filled decision-making processes, compared to the perceived speediness and efficiency and technical OECD discussions.

Thus, while existing initiatives international tax cooperation may fall flat, we should not take that as evidence that tax multilateralism is failing. We should take it as evidence that we have yet to hit the right approach in the interplay of technical politics and political politics.

The quiet BEPS revolution: Moving away from the separate entity principle

For the longest time, international law has treated multinational enterprises (MNEs) as consisting of separate, independent units, rooted in separate national jurisdictions. Apple’s US corporate headquarters is distinct from its Irish holding company, which is distinct from its local national subsidiaries – even though they are all part of the same multinational group. Their reporting compliance and tax liabilities are, to a large extent, manifested separately at the country-level.

This ‘separate entity’ principle resonates throughout international taxation. It is, in particular, the basis of the entrenched arm’s length standard (ALS), the notion that related-party trade should accord to market terms.

The OECD/G2o BEPS (Base Erosion and Profit Shifting) project is, however, fundamentally challenging the separate entity principle. Stronger CFC (controlled foreign corporation) rules (Action 3) will manufacture formal links between group entities located in high-tax and low-tax jurisdictions. Tightened interest deduction rules (Action 4) will mandate group-wide formulas for thin capitalisation. Expanded use of the profit split method in transfer pricing (Actions 8-10) will put pressure on the ALS. And new transfer pricing documentation and country-by-country reporting (CBCR) obligations (Action 13) will provide tax authorities with more and better information on corporate group structures and value chains.

This trend is not a BEPS noveltyz Rather, the BEPS project underscores and accelerates a trend that has been emerging and increasing over the past 10-20 years in particular. There has been, and continues to be, a gradual move towards treating MNEs as unitary structures, rather than distinct fragments.

Interestingly, it is one of the more inauspicious regulatory innovations that provides the best illustration of the BEPS challenge to the separate entity principle: reporting mechanisms.

How can something so trivial be so crucial? Let’s take a step back first. Back in 2015, when the OECD, the G20 and a host of other stakeholders were discussing country-by-country reporting, one contested question was: How and where are companies going to submit their reports to tax authorities? Civil society groups wanted companies to file locally in all jurisdictions where they operate (e.g. to accommodate developing countries), while business lobbies advocated headquarter filing in the parent country of residence (to ensure more ‘trustworthy’ tax administrations would gatekeep the data). The eventual outcome was somewhat of a compromise. Parent-HQ filing was chosen as the primary filing mechanism, but the agreement also built in a secondary mechanism, a ‘safety valve’ of sorts. Thus, in the February 2015 recommendations on BEPS Action 13, the OECD introduced this:

Capture

And in the June 2015 Implementation Package, the secondary mechanism was detailed further. Here, we learnt that a subsidiary may be required to file the CBCR if:

a) the parent is not required to file in his home country, or
b) international information exchange or treaty sharing agreements are insufficient for the report to be exchanged from the parent company home country, or
c) there has been a “systemic failure” by the home country as regards the report.

In other words, if, for one of the stipulated reasons, a tax administration is not able to obtain the CBCR of an MNE with a subsidiary in its jurisdiction from another country’s tax administration, the tax administration in question can request the CBCR to be filed locally, by the subsidiary.

Make no mistake: This is groundbreaking. The UK HMRC and the Danish Skat can now force Apple’s local subsidiaries to obtain and provide extensive information on its global taxation and economic activity, in case they cannot procure that information from the US IRS due to a failure on the part of the US legislature, Apple, the IRS or the treaty system. And the same goes for developing country tax administrations.

But this is extraterritorial jurisdiction, surely? An espoused phenomenon in international law and international relations, a threat to the SOVEREIGNTY of nations. We are, after all, requiring purely local managers to provide information beyond the geographic boundaries of their authority, no? How would they even have access to that information?

Except, remember, we are moving towards treating MNEs as unified entities, not as disjointed networks. Therein consists the BEPS challenge to existing international law.

And this challenge is clearly on display. I want to highlight two ways in particular we can observe this:

Firstly, national law-makers are questioning whether it is even constitutional for them to enact or enforce this legislation. As EY note, in the context of the EU implementation of the BEPS agreement:

Certain Member States had expressed concerns that they may not be in position under their legal systems to require the full information of a given group from a subsidiary that cannot obtain or acquire all the information required for fulfilling the reporting requirement.

In the EU context, the proposed solution is to allow subsidiaries to file partial information (what they have available), while countries maintain the right to penalise non-compliance in such instances. But other countries have already implemented the BEPS regulation, which they may or may not be able to actually enforce, both practically and legally.

Secondly, and perhaps most blatantly, the secondary mechanism has led to panic among US multinationals. Why? While other countries have implemented the BEPS Action 13 requirements for financial years starting 1 Jan 2016, as agreed, the US has only required its companies to file for financial years starting 1 Jan 2017, to give an extended adjustment timeline. So there is a very real possibility that US multinationals, many of which have a lot of foreign subsidiaries, will be required to file locally for FY2016.

In response, the US has sought to allow voluntary filing of CBCR reports by US MNEs for FY2016. The proposed US regulations specify:

The Treasury Department and the IRS intend to allow ultimate parent entities of U.S. MNE groups and U.S. business entities designated by a U.S. territory ultimate parent entity to file CbCRs for reporting periods that begin on or after January 1, 2016, but before the applicability date of the final regulations, under a procedure to be provided in separate, forthcoming guidance.

The US is not alone, though. Recent OECD guidance on voluntary filing notes that also Japan and Singapore face similar issues.

The fact that OECD felt the need to issue guidance on such an otherwise trivial topic, and that American, Japanese and Singaporean MNEs are pushing for voluntary filing, underlines the dilemma created by secondary filing. There would be no push for voluntary filing if the secondary mechanism wasn’t seriously threatening existing standards within international law. Increased compliance burdens from expanded reporting requirements was the main criticism of multinationals in response to BEPS Action 13. So it should make us pause that they are now mobilising to voluntarily report to the IRS above and beyond their legal obligations.

But the secondary filing mechanism is just one or many streams pushing for a change in the perception and legal treatment of MNE groups. The ultimate push in this direction is, of course, unitary taxation, which would allocate tax based on the total consolidated worldwide income of MNEs.

What all these developments have in common is that they point in one direction: Increasingly, we will likely see legislation adjust to the new “reality”, that multinationals are not loosely connected collectives but rather more closely integrated enterprises.