Cover: The Global War On Tax Havens

AT HAVENS END?

Multinational corporations could have a much more difficult time shifting profits to low-tax jurisdictionsand deductions to high-tax onesunder new OECD rules.

When Apple CEO Tim Cook testified in defense of the computer giants tax practices on Capitol Hill in late May, Cook was speaking for many multinational corporate executives when he insisted that Apple paid every bit of tax the company owed to the US and other countries. But that, according to critics, is precisely the problem. The current international tax system, based on a practice known as transfer pricing, lets multinationals shift income from parent companies or their subsidiaries located in high-tax jurisdictions, such as the US, to those in low-tax regimes, and do the opposite with deductions. As a result, critics say, companies artificially minimize their liabilities or even avoid them entirely, and do so legally, thanks to the widely accepted current basis for transfer pricing.

With a great deal of scrutiny coming to bear on corporate tax practices worldwide, the Organisation for Economic Co-operation and Development (OECD) is looking at ways to revamp its guidelines on international tax practices. Until there is clarity on how this review will evolve, however, corporations are wondering, and worrying over, what it will ultimately mean. An OECD report in February to the G20 countries noted: There is increased segregation between the location where actual business activities take place and the location where profits are reported for tax purposes.

And though the cost to governments, many of whom are facing sovereign debt woes because of gaping fiscal deficits, may be impossible to gauge precisely, some estimates put it in the trillions of dollars. If we could estimate it, we could tax it, says David Spencer, an international tax attorney based in New York, who describes the problem as monumental.

The scope of the tax shortfall is evident in a 2008 World Trade Organization estimate that only 40% of world trade occurs between independent companies. The rest is conducted intracompanyand taxing of that income falls under the current murky transfer pricing rules. That proportion has probably decreased since then, as the global economic downturn has seen industries consolidate further. To help close this gap in lost tax revenues, the OECD has revisited the guidelines it established in 1995, and revamped in 2010, as the basis of transfer pricing practices in most of the world. An action plan that the OECD presented to the G20 in late July detailed 15 steps it expects to take over the next year to two and a half years to deal with transfer pricing and related issues.

The OECD is acting after being accused of dragging its feet. The current system is not workable, says H. David Rosenbloom, a professor and director of the International Tax Program at New York Universityand former Treasury official.

OECDS NEW GUARD

The evolving perspective at the OECD is owing in part to changes within the organizations structure. Some critics say that much of the tax staff of the OECD until recently was captured by private industry, with members moving between positions in the organization and private industry as if through a revolving door. But it may have as much to do with the shifting power of member countries. Countries such as Brazil, China and India have rejected the OECDs guidelines in favor of their own, more draconian regulations, bringing pressure to bear on the organization to enact change.

Saint-Amans, OECD: Profits cannot be located in a place where you have two men and a dog

Regardless of the reason behind it, the OECD has had a very serious change of heart about the current system, observes Spencer. There is a new guard that realizes its up against the wall.

The new guard includes Pascal Saint-Amans, an OECD veteran named director of its Centre for Tax Policy and Administration in February 2012, who is overseeing the guidelines review. As Saint-Amans told Global Finance in an interview: Profits cannot be located in a place where you have two men and a dog.

The OECD recently got an extra push to end such practices from the G8 countries, which issued a communiqu at their meeting in June that called for countries to share corporate as well as individual tax information without being asked to do so. Philip West, a former international tax counsel for the US Treasury and now a partner in the Washington, DC, office of law firm Steptoe & Johnston, said at a global tax conference in late April in New York City that such mandatory information sharing would represent the first step toward a far more onerous system for multinational enterprises than the one currently in place.

In fact, a growing number of countries arent waiting for the OECD to act. France recently slapped Amazon and Google with tax bills of 700 million ($930 million) and 1.7 billion, respectively, for reassessed liabilities based on their transfer pricing practices, while Denmark hit Microsoft with a 778 million reassessment. India is seeking $2.5 billion from Vodafone in a long-running dispute over that companys 2007 acquisition of telecom assets from another company based in the Cayman Islands and Mauritius. All of those companies declined to comment, as did Apple and several other multinationals contacted for this article. For such companies, uncertainty over tax liabilities are increasingly a key concern. If the OECD fails to come up with a more effective system, companies may find that individual countries do their own thing, Robert Stack, deputy US Treasury secretary and the departments international tax counsel, warned at the tax conference in New York.

The question is what type of change the OECD can get most if not all countries to accept, since it operates by consensus. Even if its action plan is accepted by the G20, as is expected at a meeting this month, and the OECD finalizes its proposal within the envisioned time frame, global governments and legislatures would then have to pass laws to embrace them. During that interval, corporations are sure to lobby against many of the changesand dissenting countries, to push for even stronger ones.

CURRENT SYSTEM

The OECDs current transfer pricing guidelines are used widely in tax treaties based on the so-called arms-length principle, under which companies are supposed to price intracompany transactions as if they were conducted between independent companies. That is supposed to result in appropriate taxation by each jurisdiction.

But critics say such pricing can understate income, because independent companies naturally enjoy smaller profits on transactions than those between parents and their subsidiaries, thanks to economies of scope and scale. And so-called comparablesbased, for example, on royalty agreements within industriesthat companies currently rely on to price cost-sharing agreements and other transactions between parents and subsidiaries may be even more misleading in the case of difficult-to-value intangible assets. Yet those assets are increasingly the basis of such transactions.

As a result, some critics go so far as to label the arms-length principle a tax-avoidance device designed to help companies move income to tax havens, where subsidiaries that do little or nothing can claim income. These critics want to see the OECD move toward what is called formulary apportionment, where profits are allocated among jurisdictions based on a formula that takes into account returns on assets or some other measure of profit.

The most strident proponents of such a change would also require companies to report the income they make in each country to every jurisdiction, a system that, when combined with formulary apportionment, is known as unitary taxation. The mandatory sharing of information among countries along the lines called for by the G8 would resemble that type of reporting, as its June communiqu seeks a common template for country-by-country reporting.

But it falls far short in the eyes of some. You cant stop income shifting to tax havens without unitary taxation based on formulary apportionment, says Michael McIntyre, a law professor at Wayne State University.

Some supporters of the formulary approach nonetheless say unitary taxation is unfeasible. And defenders of the current system warn that the formulary approach, at least without agreement on the formula to be used, would result in taxation of the same income in more than one jurisdiction, an outcome known as double taxation, which is now avoided by tax treaties that embrace the arms-length principle. Says Patrick Evans, chief tax counsel of the Washington, DCbased industry group Tax Executives Institute: Our members are extremely concerned about the double taxation issue, and if theres no agreement on the formula, then double taxation is likely.

Saint-Amans says he doesnt care whether the OECD ultimately keeps the arms-length principle in place or jettisons it in favor of the formulary approach, as he sees problems with both. I am agnostic, he points out. But the OECDs action plan continues to favor the arms-length principle. Saint-Amans adds that it would be difficult, if not impossible, to get countries to agree on what formula to use for the formulary approach. Quips Saint-Amans: I dont have a century to work on that.

For a microcosmic view of the problem, consider the US. It has such a system in place for state and local taxes, but at last count the 50 states were using some 20 different formulas to apportion profits. And China and India are unlikely to accept any formula that doesnt include a premium for the advantage that their cheap labor provides companies based elsewhere.

Instead, the OECD action plan calls for better enforcement of the arms-length principle, a position that the US supports but that Brazil, China and India, as well as many other countries, do not. They want more stringent rules.

The Treasurys Stack told the April tax conference that the US doesnt like the formulary approach, and that its own efforts to improve enforcement of the arms-length principle would be helped immensely if Congress simply repealed what are known as check the box rules for subsidiaries called controlled foreign companies, under which their parents can simply instruct the IRS to ignore them for tax purposes, so tax on their income is indefinitely deferred. Still, Stack acknowledged that we are alone among individual countries supporting the arms-length principle.

Although the OECD action plan backs the principle, many observers expect mandatory information sharing to strengthen the hand of authorities now in the dark about what companies are doing to shift profits to low-tax jurisdictions and deductions to high-tax ones. Saint-Amans says hes more concerned with double nontaxation, where income is taxed nowhere, than with double taxation, though he warns that if countries dont accept the OECDs new guidelines, companies will doubtless face more double taxation.

CURTAILING TAX AVOIDANCE

The action plan also contains concrete measures aimed at what it calls tax avoidance. One of the most significant would curtail deductions on intracompany loans that are more like equity investments than debt, which bank holding companies use widely. Another would close the loopholes concerning tax residency that many technology companies have exploited to great effect. (See sidebar for a look at how Apple has done so.)

Regardless of what exactly the OECD eventually does, many experts contend that companies will find it difficult to continue using their most aggressive tax practices because of the backlash they now produce. Marc Sanders, a partner in the Amsterdam-based consulting firm VMW Taxand, told the April tax conference in New York that more and more companies have concluded that such practices now pose too much tax and reputational risk. As Sanders put it, Mere letterbox or conduit companies dont cut it anymore.