Some political questions for Unitary Taxation

It sometimes feels like, when discussing unitary taxation [pdf], one is expected to self-identify as either a UT advocate, interested in how it could be made a reality, or a sceptic, determined to defend the status quo. I’m neither. As a political scientist, I want to understand (among other things) how our international tax instruments came about, how they affect what individual countries do, and how different actors influence national and international policymaking. These are empirical questions that I think are relevant to the UT debate.

Unitary tax is certainly a case in point for each of these questions. If it really is a better system than transfer pricing, then a political economist would want to explain the persistence of the latter. It seems clear enough that developing countries, when they decide to get serious about taxing multinational companies, head almost automatically down the transfer pricing route. Yet the people making these decisions are often, in my experience, very sharp, with a healthy scepticism of the international tax institutions from which transfer pricing standards have emerged. So have they considered other options? Are their decisions based on legal or economic preference, political calculation, or the hegemonic power of the OECD guidelines? I’d like to know.

There is a tremendous body of legal literature arguing that unitary taxation would be a more effective way to administer corporation tax than transfer pricing. I find this more convincing than the argument for the status quo, as made for example in the OECD guidelines. This seems to boil down a political impossibility theorem: to prevent double taxation there would need to be global agreement on a formula, but this would be impossible, so we should stick to the status quo.

What I find odd about it is that the same surely applies to transfer pricing, and yet there has never been a global agreement on those standards: just an agreement between OECD countries. Everyone should do what the OECD countries do, it seems, not because of its technical merits, but because it would be too difficult to do anything else.

I’ve argued elsewhere that moves in some of the BRICS countries are specifically undermining any notion that there’s an international consensus on the arm’s length principle. What India and China are doing is not, like Brazil, just based on the idea that they have found a better way to approximate the arm’s length price: they seem to argue instead that they are entitled to a larger-than-arm’s length share of taxing rights, because that’s what they consider fair.

If there has been a breakdown in the transfer pricing consensus, and one that leads to double taxation, that substantially lowers the bar for UT: it no longer needs a tight global consensus in order to match transfer pricing. Furthermore, if a debate is opening up over the fair distribution of taxing rights, that’s comfortable territory for unitary taxation, where the debate is articulated clearly over the choice of formula.

In making a judgement about which international tax system is best, we need to ask ‘best in what way?’ I think we can look at it through the classic three-way lens of tax policy valuation:

  • Equity: does it produce a fair (we might say ‘progressive’) result?
  • Efficiency: does it minimise the role of tax factors in shaping economic decisions?
  • Administrability: can it be administered and enforced effectively without imposing too large a burden on taxpayers and revenue authorities?

Looking at one of Sol Picciotto’s recent papers, it seems that his main argument in favour of unitary taxation is an administrability one: under UT there would be less avoidance and evasion than under transfer pricing. (He also touches on the impact of tax planning on economic efficiency, and we could discuss how it affects equity as well). Efficiency is interesting, but I am certainly not able to do the kind of economic modelling that we’d need to predict behaviour change under UT.

But what if we start from equity? There is the question of equity between taxpayers, and in particular how the tax treatment of multinationals compares to domestic firms – a matter of vertical equity. But I am interested in ‘inter-nation equity’. How would (or indeed could) unitary taxation affect the distribution of taxing rights between countries, and in particular between developed and developing countries? Sol’s paper ends on this point:

Some might also wish to see even more ambitious projects for global taxes, which might be used for international redistribution to assist development. Those, however, are topics for another occasion.

To me, this is a political question. Considering how different formulae would change the distribution of taxing rights is the starting point, but you can’t end there: you have to ask what a politically viable settlement would look like. If global consensus is needed, is it possible to imagine one in which developing countries have a bigger share of taxing rights than under transfer pricing? If global consensus is not needed, how are developing countries likely to act? One hypothesis might be that larger, more powerful economies would adopt formulae that maximise their tax revenues, just as they are doing with their transfer pricing standards, while the choice of formula could become a matter of tax competition for smaller countries.

Of course it may not be a zero sum game. If avoidance and evasion are reduced under UT, the overall cake to be divided up would be bigger. In that case, it may just be a question of working out how to divide up the spoils.

My view is that these questions can’t be asked through only thinking about unitary taxation in the hypothetical. Key to determining if unitary taxation produces a more equitable outcome is developing a model of how countries behave in international tax. To do this, we need to study how countries act under the current international tax system – both unilaterally and in international negotiations. Coincidentally, that is what I am trying to do!

PS: on the technical side, I’m also watching the International Centre for Tax and Development’s unitary tax workstream and the unitary taxation project on Andrew Jackson’s blog with interest

 

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BEPS Part 2: international politics and developing countries

sluto | beps

This graffiti is definitely about Base Erosion and Profit Shifting (Photo credit: feck_aRt_post)

I wrote earlier this week with some questions about UK tax policy and the OECD’s Action Plan on Base Erosion and Profit Shifting. A lot of the areas that it’s looking at are probably not going to affect smaller developing countries very much, but there are a few things worth highlighting. I also recommend Chris Lenon’s comments on the action plan, to which I’ll refer below.

Beyond the arm’s length principle

I thought it very interesting that the action plan concedes that some of the current problem with tax planning derives from the transfer pricing rules themselves:

multinationals have been able to use and/or misapply those rules to separate income from the economic activities that produce that income and to shift it into low-tax environments.

But the more significant rhetorical shift from the OECD is that it now appears to believe that solutions within the arm’s length principle (ALP) may not be enough. The ALP’s self-sufficiency has seemed to me to be an article of faith for the OECD secretariat every since I began working on tax. The action plan says:

special measures, either within or beyond the arm’s length principle, may be required with respect to intangible assets, risk and over-capitalisation to address these flaws.

Some academics are fond of arguing that the OECD abandoned the ALP in all bit name some time ago. So I wonder whether this is really a substantive change or just a rhetorical shift designed to underline that BEPS is a ‘radical rethink’.

Chris thinks that “[t]his is a clear indication that apportionment may be considered as the way to deal with high value intangibles.” It does seem to imply that the OECD may come more into line with the Chinese approach.

Tax reporting

Noting that “timely, comprehensive and relevant information on tax planning strategies is often unavailable to tax administrations”, the action plan proposes to:

Develop rules regarding transfer pricing documentation to enhance transparency for tax administration, taking into consideration the compliance costs for business. The rules to be developed will include a requirement that MNE’s provide all relevant governments with needed information on their global allocation of the income, economic activity and taxes paid among countries according to a common template.

Chris thinks that this is “very significant”, and that “business needs to develop a strategic response to the issue of transparency”. I think that it is worth considering in the context of the report to the OECD task force on tax and development last year [pdf], which outlined the information challenges faced by developing country tax authorities. The main value of a global report as proposed would be to give tax authority in country A some readily available information on a multinational’s operations in country B, if neither country is the head office. At the moment this is difficult to obtain, because the subsidiary in country A can’t be required to provide information on a sister company in country B, despite them being under common control. Tackling this problem through global documentation seems sensible.

A multilateral treaty and mandatory arbitration

I said when the original BEPS report came out that a multilateral treaty designed to update current treaties in one fell swoop has potential dangers for developing countries. They’re mostly excluded form the BEPS process, but a multilateral treaty could gain such momentum that it becomes obligatory for them to sign up, despite the difference of interests acknowledged by the existence of separate UN and OECD model bilateral treaties. The new UN tax committee‘s response to any multilateral treaty will surely be very significant.

As an example, the Action Plan implies that one area for change is in the area of mutual agreement procedures (MAPs) and arbitration:

Develop solutions to address obstacles that prevent countries from solving treaty-related disputes under MAP, including the absence of arbitration provisions in most treaties and the fact that access to MAP and arbitration may be denied in certain cases.

Alison Christians has written about her concerns about this in the past. Experience with investment treaties shows that developing countries should be wary of mandatory arbitration, yet they may find themselves with little choice if this makes it into a multilateral treaty.

G20 versus OECD

The new model of G20-OECD cooperation is intriguing. The Action Plan explains it as follows:

interested G20 countries that are not members of the OECD will be invited to be part of the project as Associates, i.e. on an equal footing with OECD members (including at the level of the subsidiary bodies involved in the work on BEPS), and will be expected to associate themselves with the outcome of the BEPS Project.

The equal footing part is new and unusual, but that last clause means that countries who have got used to stating their difference of opinion with the OECD will presumably want to think carefully. I will be very interested to see which of the non-OECD G20 members take up this invitation.

The United Nations Practical Manual on Transfer Pricing: a bluffer’s guide

Logo of the United Nations

Logo of the United Nations (Photo credit: Wikipedia)

Last week saw the official launch of a 495-page document by the United Nations tax committee, its new Practical Manual on Transfer Pricing for Developing Countries [pdf]. The final product has been four years in the making and is an impressive, introductory-level guide to transfer pricing. So definitely worth dipping in and out of if you’ve never quite got your head round exactly how international rules divide up the tax base of a multinational company.

Because of its length, few people outside those who follow the UN committee in depth have really understood what the manual is about, and its implications for the international politics of taxation. So here’s a crib sheet on some of its more controversial aspects.

1. The manual is hardly the product of a group of tax mavericks

The subgroup responsible for drafting the manual includes two members of the OECD’s Working Party 6, the technical group responsible for its transfer pricing guidelines – indeed the subgroup’s Norwegian chair is also a bureau member of WP6 – as well as the head of the transfer pricing unit of the OECD secretariat. The subgroup had several private sector representatives, including people from Ernst & Young and Baker & Mackenzie, who did large amounts of drafting, and Shell’s global transfer pricing manager.

This was balanced by government and private sector representatives from developing countries (many of whose countries also have the status of observing participants over at WP6). I understand that there were some quite heated exchanges at times, and the group certainly did include some considerations unlikely to have been given much airtime at the OECD.

2. The main body of the manual is consistent with the OECD guidelines

To set the context, we need to understand the UN committee’s position on the OECD transfer pricing guidelines. The 2001 edition of the UN model convention explicitly endorsed the arm’s length principle, and recommended that countries implement it using the methods set out in the OECD guidelines:

the Contracting States will follow the OECD principles which are set out in the OECD Transfer Pricing Guidelines. These conclusions represent internationally agreed principles and the Group of Experts recommend[s] that the Guidelines should be followed for the application of the arm’s-length principle which underlies the article.

The Manual defines the arm’s length principle as, “an international standard that compares the transfer prices charged between related entities with the price of similar transactions carried out between independent entities at arm’s length.”

The 2012 update to the UN model convention also endorses the arm’s length principle, but it is more circumspect about the OECD guidelines. This is because in 2011, when the updated model convention was agreed, the Brazilian, Indian and Chinese committee members recorded a reservation to the paragraph of the 2001 model quoted above. (The model conventions are the views of the individual members of the committee at the time they are agreed). Rather than attempting to find a consensus statement for the new model convention, the committee agreed to quote what their predecessors had said in 2001, and then add the following text:

The views expressed by the former Group of Experts have not yet been considered fully by the Committee of Experts, as indicated in the records of its annual sessions.

So we can see that the UN committee’s position on the role of the OECD’s transfer pricing guidelines has changed over the course of this session (though it continues to endorse the arm’s length principle). Depending on how this evolution continues under the new committee membership, future versions of the transfer pricing manual might have the scope to carve out a more distinctive methodology for developing countries. But that was ruled out early on for this manual. The subcommittee concluded, as its chair reported back to the full committee in 2010, that its mandate required that the Manual maintain “consistency” with the OECD guidelines, which the UN model at that time – the old version – recommended that countries follow.

3. Consistent, but not identical

The transfer pricing subcommittee’s mandate, from 2009, embodies the balancing act that anyone working on transfer pricing in developing countries faced. The subcommittee must ensure:

a) That it reflects the operation of Article 9 of the United Nations Model Convention, and the Arms Length Principle embodied in it, and is consistent with relevant Commentaries of the U.N. Model.

b) That it reflects the realities for developing countries, at their relevant stages of capacity development.

c) That special attention should be paid to the experience of other developing countries.

An earlier proposed outline for the manual had included among subheadings on transfer pricing methods ‘current’ and ‘alternatives’. Under the latter, a single bullet point says. “Global Formulary Apportionment – an introduction (alternative method for applying the ALS or alternative to the ALS?).” This was effectively ruled out by the mandate, but there was still a question about how to balance “consistency” with the OECD guidelines on the one hand with “reflecting the realities for developing countries” on the other.

The UN committee continued to discuss ‘simplifications’ to the methods included in the OECD’s transfer pricing guidelines. For example, in 2010:

The discussions of the group of experts, however, included an exchange of views at some length regarding the use of presumptive arm’s length margins, safe harbours and formulas when applying arm’s length pricing profit methods….[Monique van Herksen of Ernst & Young] explained the potential benefit to developing country tax administrations in making use of presumptive margins and safe harbours in relevant circumstances. Additionally, she mentioned as an idea to be considered that the United Nations, in an appropriate form, might issue temporary industry margins based on research and statistics to be used by taxpayers and tax administrations as arm’s length presumptive benchmarks.

The final manual outlines these kinds of simplifications (although not van Herksen’s final proposal quoted above) but it doesn’t propose them as alternatives to the OECD guidelines – instead it notes that the latter are currently being updated to endorse the use of safe harbours. In the future, as both the OECD and UN consider how developing countries can simplify the implementation of the arm’s length principle, it will be interesting to watch the interplay between their respective documents.

4. The manual sets out the contours of current transfer pricing debates, and business is not happy

As I blogged at the time, the US Council for International Business wrote a rather angry letter [pdf] to the committee ahead of its final discussion of the manual last year. One section that it was unhappy about was 9.4.2, which according to USCIB, “ought to be deleted in its entirety. In our view, the only purpose of this section is to undercut the value of the OECD [transfer pricing guidelines] as the global standard in the area of transfer pricing.”

That section is still in the final version, and it still notes that, “the interpretation provided by the OECD Transfer Pricing Guidelines may not be fully consistent with the policy positions of all developing countries.” It is summed up as follows:

developing countries may wish to consider the relevance of the OECD Transfer Pricing Guidelines, along with the growing body of UN guidance and other available sources, when establishing their own domestic and cross-border policies on transfer pricing.

It’s hard to view this as a dramatic policy statement by the Committee. Rather, it’s an accurate description of the current state of affairs, and the concluding recommendation is made in the context of dispute avoidance, for which developing countries need to consider the actual practices of countries with which they may get into a dispute.

5. Chapter 10 is probably the manual’s biggest contribution

During 2011, as the manual developed, its outline started to include a chapter 6, on ‘The [Possible] Use of Fixed Margins’, otherwise known as ‘the Brazil chapter’. Although it existed in draft form, this chapter – a description of the Brazilian approach to transfer pricing, which is not consistent with the OECD guidelines – was never published on the UN website. By 2012, it had disappeared from the manual, replaced instead by a chapter 10, which unlike the rest of the manual “does not reflect a consistent or consensus view of the Subcommittee.”

I’ve heard that the proposed ‘Brazilian chapter’ was the subject of a lot of controversy, as well as variously that it was opposed by OECD members, lobbied against by the OECD secretariat, and even fought by other large developing countries, who didn’t see why Brazil should get a chapter all of its own. Certainly it seems inconsistent with the way the subgroup interpreted its mandate (see 2 above).

Whoever opposed the Brazilian chapter may instead have created a monster in chapter 10. It’s probably the only detailed description of Brazil, China, India and South Africa’s approach to transfer pricing, both how they follow and how they differ from the OECD methods. Significantly, these contributions are expressed not just in terms of the legal and administrative realities, but also the policy objectives underlying them.

It seems unlikely that smaller developing countries will read this chapter and try to adopt the methodologies it outlines. Rather, chapter 10 functions as a comprehensive critique of the OECD guidelines – almost a manifesto – endorsed and in most cases written by tax officials from some of the world’s most powerful economies. As a focal point in transfer pricing discussions, it is politically very significant.

The nature of this critique is the subject of a separate blog.

6. The political significance of the manual depends on what happens next

The UN manual contains a lot of very useful text that, on a technical level, will be very useful for developing countries. The current committee wants the manual to develop in the future, and it seems clear that the UN’s arrival on the transfer pricing scene is a fundamental change in international tax governance.

The UN Manual is not an alternative to the OECD Guidelines. Yet. It could evolve in that direction, creating a counterweight in the same mould as its model treaty, but that depends on what the new committee decides to do with it.

It also depends on two more things. First, on the unresolved discussion concerning the UN model convention’s position towards the OECD guidelines. Further work on the UN manual will inevitably be framed in terms of the model convention, which is the committee’s signature document, so the tension between OECD members and larger developing countries on this point is significant.

Second, it depends on the OECD, which has been working hard to reach out to developing countries [pdf]. Institutionally, it has brought many of them into its new Global Forum on Transfer Pricing, several are observers on its standards-setting committees, and there’s of course its Tax and Development Task Force. In terms of content, its project on transfer pricing ‘simplification’ has already incorporate some of the measures mentioned in the UN manual, and may even go further. So the OECD may succeed in creating a broad enough tent to regain its UN endorsement. It’s hard to see, though, how Chinese and Indian measures, which place them at odds with OECD countries, could be incorporated by the OECD itself.