Tax Update

Updates on BEPS Pillars One and Two – some signs of consensus

Peter Vale Peter Vale

The OCED today released an update on progress on its two key global tax initiatives.

The first proposal, “Pillar One”, is essentially an attempt to transfer more taxing rights to the country of the consumer, away from the country where the company is located. While initially badged as a form of digital tax focused on technology companies, its ambit is potentially wider than that and could capture many IP rich consumer facing companies.

Pillar one would see a portion of profits currently taxed in Ireland being taxed in the jurisdiction of the consumer. It would accordingly dilute the benefit attractiveness of Ireland’s low corporation tax rate. A key issue for Ireland is exactly how much of the profit would end up being taxed in the market jurisdiction.

Achieving consensus was always going to be the biggest challenge for the OECD. While certain key issues have to be resolved, including the mechanism to allocate profits to market jurisdictions, it does appear that a consensus is developing. Given the political will for change, we would expect a significant drive over the coming months for agreement to be reached.

While any changes may dilute the benefit of Ireland’s low corporate tax rate, uncertainty is not in Ireland’s interests either. If resolution can be reached at OECD level, this should be viewed positively by Ireland. The alternative scenario, with individual countries or even EU Member States taking unilateral action, would be more damaging. Many countries have already taken steps to introduce a form of digital tax; a co-ordinated, coherent and consistent approach would be far better for businesses.

Pillar One is not about raising the overall amount of tax that companies pay per se, it is more about the redistribution of existing tax bills. The OCED estimates that circa $100bn of taxable profits may be redistributed as a result of Pillar One changes, with winners and losers. While both Pillar One and Pillar Two were launched pre COVID, the financial costs of dealing with the virus cannot be ignored in considering how the negotiations will play out.

Pillar Two broadly attempts to ensure that companies pay an agreed minimum level of tax. Pillar Two arguably poses more challenges for Ireland, although further work on the detail remains. The detail will be important for Ireland.

While consensus has not yet been reached on Pillar Two, again there appears to be sufficient political impetus to get it over the line, despite the sensitivities and complexities.

The OECD estimates that Pillar Two could see additional tax revenues of $50-80bn raised. Again, the financial cost of COVID19 may increase the political desire to drive the Pillar Two initiative in particular in many countries.

Global tax changes to date have been broadly positive for Ireland, with the increased alignment of taxable profits and substance seeing our corporate tax receipts surge. The combination of the latest OECD Pillar One and Pillar Two proposals will make the future landscape more challenging.

We are unquestionably facing into a period of tax uncertainty and disputes as countries grapple with the implications of changes, something acknowledged by the OCED. However a consensual approach, rather than unilateral action, should be welcomed by Ireland. While the coming months will be critical and the detail important, the hope will be that the transparency of our tax regime, and its emphasis on substance, will see Ireland remain a compelling location for FDI once the dust settles.