Welcome to the September 2015 edition of our quarterly Global Tax Disputes Update, bringing you the latest news in tax controversy around the world.
With tax audit and dispute activity rising in almost every country, keeping up with trends and developments is more important than ever. In this edition, you'll find briefings on key news, events and thought leadership submitted by Global Tax Dispute Resolution & Controversy professionals in KPMG member firms worldwide. Staying informed can be a crucial first line of defense as you manage your disputes around the globe.
Make sure to view our past issues of Global Tax Disputes Update.
As tax audit activity and controversy continue to rise worldwide, many large global businesses and high net- worth individuals are getting their tax affairs on track through voluntary disclosures. Taxpayer amnesty and relief programs are an increasingly popular means for tax authorities to encourage taxpayers to come forward and correct errant tax filings in exchange for potential immunity from prosecution, reduced penalties and other relief.
Voluntary disclosure programs in various countries have similarities. But a review of current programs in Canada, the United States, Italy and the Netherlands highlights important differences in application procedures, tax filings covered, and types of relief provided. Companies and individuals who are thinking about using this route to remedy their tax filing lapses can avoid missteps and enhance the benefits offered by carefully examining the specifics of the voluntary disclosure program in the jurisdiction in question.
Read the article
Among the world’s tax regimes, the tax authorities of Brazil, France and Russia can be perceived as some of the more challenging to deal with. So it may come as a surprise that there are plenty of options for working out tax issues at the administrative level in these countries. As the financial and reputational cost of litigating tax disputes for companies rises and as tax authorities seek to improve efficiency and reduce costs, going to court is becoming a matter of last resort in many countries.
Companies with operations or holdings in Brazil, France and Russia stand to benefit as tax authorities in these countries embrace this global trend.
Read the article
Tax litigation can entail considerable time, cost and potential adverse publicity, so many taxpayers seek to avoid it at all costs. But when administrative ways to resolve disputes fail, tax litigation can be the only route left for achieving relief from tax assessments.
Taxpayers may want to consider not letting the challenges involved stop them from litigating tax disputes when the situation warrants. While the costs and benefits of litigation should be carefully weighed, litigation offers a final means to potentially win a favorable outcome – or at least closure regarding the issues concerned.
Further – as an examination of tax litigation in Brazil, France and Russia shows – taxpayers’ willingness to engage in litigation can help tax authorities bear in mind that their interpretations and decisions may be put to the test in a court of law.
Read the article
'Do more with less’ is the challenge faced by many tax authorities around the world as governments struggle with tightened finances. Many tax authorities are adopting formal risk assessment programs as part of their response. In theory, by identifying and focusing on those taxpayers and situations that bear the highest risk of non-compliance, tax authorities can promote compliance, potentially generate more tax adjustments with fewer resources at a lower cost, while easing the tax audit burden for taxpayers considered low-risk at the same time.
Are current programs meeting their aim of increasing collections at lower cost? Are taxpayers who work to establish a lower risk status experiencing lighter, more streamlined tax audit coverage in return? Tax Dispute Resolution and Controversy Services leaders from KPMG’s global network of firms explore the current status and future direction of these programs in Canada and the United Kingdom.
Read the article
The Australian Taxation Office's (ATO) tax risk management and governance review guide elevates the ATO’s expectations of how a corporate board is to manage tax risk.
While a key part of the ATO’s own transformation agenda, the guide is not compulsory. However, it is expected by the ATO that corporate board and executive management will now include a measurement of how an organization’s tax risk is assessed, managed, and controlled.
Read the article
The Australian Taxation Office (ATO) appeared before the Corporate Tax Avoidance Senate Inquiry in July 2015. While the inquiry’s focus was on pharmaceutical companies, some interesting comments emerged that apply to all Australian taxpayers with cross-border arrangements. In short, the ATO expressed concern in respect of Australian members of multinational groups as follows:
Read the article
The Australian Taxation Office (ATO) has over the last 2 years embarked on a program of ‘re-invention’ that has transformed how the Australian Taxation Office approaches and deals with taxpayers – who are now referred to ‘clients’.
The handling of taxpayer disputes is one area that has been significantly affected. Over the past 2 years, the ATO’s embrace of early and alternative dispute resolution caused the number and complexity of disputes to fall significantly.
Another factor driving change is a cultural shift in how the ATO views disputes. In this context, the ATO now measures not only how many ‘problems’ are being resolved but also the perception of fairness on the part of the taxpayers involved.
Early statistics show the positive impact of this program. For example, in the area of GST, the number of large business audits moving to objection fell from 36 percent to 17 percent over 12 months. Similarly, the number of settlements has increased from 32 to 62. In this environment, with proper engagement with the ATO, companies may be able to resolve certain disputes before they reach the courts.
Further information: Jeremy Geale, KPMG in Australia
On 18 August 2015, the Australian Senate Economics References Committee released its interim report on its inquiry into corporate tax avoidance. This issue was referred to the committee because of concerns about the nature and prevalence of tax avoidance and aggressive tax minimization among large Australian corporations and multinational enterprises operating in Australia.
Before releasing the interim report, the Committee held five public hearings and received more than 100 submissions. The final report is due to be provided to Parliament by 30 November 2015.
The interim report makes 17 recommendations to the Australian Government in four areas:
The final report is expected to focus primarily on transfer pricing and profit shifting, with a secondary focus on five additional areas, including the use of tax havens.
With tax transparency and corporate social responsibility for tax in the spotlight, the risk of being caught unprepared can be significant. Taxpayers should be preparing to show that they can positively and proactively display transparency, present correct information to the market, and engage with tax authorities on their areas of focus.
Further information: Angela Wood, KPMG in Australia
Brazil’s government published an executive act1 covering three topics:
Reducing tax disputes and litigation
PRORELIT is available for taxpayers with debts that were overdue up to 30 June 2015 and are still under administrative or judicial courts revision. Eligible taxpayers can partially settle their tax debts using tax losses (PF) and negative basis of social contribution on net income (BNCSLL), determined up to 31 December 2013 and reported up to 30 June 2015.
However, the legislation does not indicate whether the use of own or third-party PF or BNCSLL should be levied by corporate income tax (IRPJ) or social contribution on net income (CSLL). Therefore, the uncertainty over the matter remains.
Tax planning disclosure
Some of the more controversial changes in the executive act involve the obligation to inform the federal tax authorities through statement about legal operations, acts or deals, which result in tax suppression, reduction or deferral. According to the executive act, the obligation arises where:
Where Receita Federal do Brasil (RFB) does not accept the tax effects arising from such operations, the taxpayer will be obliged to pay or schedule the payment of the tax debt plus interest, without penalties. However, a failure to report legal acts or deals that later might be considered as having the above characteristic may result in the automatic enforcement of a 150 percent fine.
The executive act can potentially be challenged in the legal and constitutional spheres, since, as it has been asserted by some, there may not be legal permission in Brazil’s legal system allowing the tax authorities to challenge normal effects produced by legal acts due to the mere absence of business purposes or their unusualness. Further, the enforcement of a 150 penalty based on the assumption of malice due to the failure to report such situations, is arguably according to some, unreasonable.
Correction of fees
Finally, the executive act addresses the possibility of monetary correction for specific fees related to the exercise of police power by the state, such as the fee charged for the control of chemical products and inspection fee of securities markets, among others, in compliance with the principle of tax legality.
In light of these changes, taxpayers who wish to apply for PRORELIT or who may have affected tax planning arrangements should assess the possible impact on their activities and existing tax liabilities.
Marcos Matsunaga, KPMG in Brazil
Ricardo Braghini, KPMG in Brazil.
1 Executive Act 685, dated 22 July 2015.
In a recent interpretive ruling,2 Brazil’s Internal Revenue Service (Receita Federal do Brasil – RFB) changed its position on the taxation of technical services rendered by foreign companies – particularly those established in Sweden, Austria, Finland, France and Japan – to its Brazilian subsidiaries or Brazilian companies.
As a result, it could be argued that, where, under a given treaty, payments for technical services and technical assistance do not qualify as business profits under Article 12 (“Royalty”) or Article 14 (“Independent Service Professionals Provision”), no withholding income tax (WHT) applies.
This could create an opportunity for Austrian, Japanese, French, Swedish and Finnish companies that have technical service agreements with Brazilian subsidiaries or Brazilian companies and have been subjected to WHT (15%) to claim a reimbursement or offset of the values unduly paid in the last 5 years on these operations (as adjusted by the Brazilian Central Bank’s SELIC interest rate).
Tax recoveries can be realized by filing a claim3 with the RFB, which is generally faster and more efficient than a judicial procedure. In order to gain the recognition of the non-enforceability of the WTH on the future outbound payments, companies may consider applying for a private letter ruling from the RFB.
Further information: Marcos Matsunaga, KPMG in Brazil
2 Interpretative Ruling (Ato Declaratório Interpretativo) n. 5/2014.
3 In compliance with RFB’s Normative Instruction n. 1300/2013.
The Canada Revenue Agency has released new online information about its audit activities for charities. The CRA says that it audits about 1 percent of charities each year to ensure they meet registration requirements (i.e., 800–900 registered charities across Canada). The CRA’s new information highlights how a charity is selected for audit, the audit process and possible recourse for charities that are audited, as well as the types of audit information that is available to the public and statistics regarding the outcome of audits.
Read the article
The Department of Finance Canada announced that Canada’s income tax treaty with New Zealand entered into force on 26 June 2015, and that representatives of the governments of Canada and the Cook Islands signed a tax information exchange agreement on 15 June 2015.
Further information: Paul Lynch, KPMG in Canada
The Czech Republic’s specialized tax authority posted on its website information about another wave of transfer pricing inspections that it is planning to conduct, beginning as early as June 2015. Similar information appeared on the tax authority’s website in mid-February, and, according to taxpayers, those transfer pricing inspections actually did take place shortly after.
The recently posted information primarily draws attention to internal analyses and criteria used in selecting taxpayers for tax inspection:
KPMG in the Czech Republic’s observation
Transfer pricing is often complicated, and black-and-white perceptions can be misleading. Before giving an answer to the tax authority, taxpayers may want to consider certain broad questions, for example, what is the focus of the tax authority’s questions. Also, delivering properly prepared transfer pricing documentation to the tax authority may actually transfer the burden of proof to the tax authority.
Further information: Daniel Szmaragowski, KPMG in the Czech Republic
The European Commission (EC) presented an action plan that would reform corporate taxation in the European Union (EU) through a series of initiatives to address tax avoidance, secure sustainable revenues, and strengthen the EU single market for businesses. According to the EC, its plan is intended to improve the corporate tax environment in the EU, making it fairer, more efficient and more growth-friendly.
CCCTB and other actions
The key actions include a strategy to re-launch the Common Consolidated Corporate Tax Base (CCCTB) and a framework for effective taxation where profits are generated. The EC also published a first pan-EU list of third-country non-cooperative tax jurisdictions and is launching a public consultation to assess whether companies must disclose certain tax information.
According to a related OECD release, the EU measures would be developed to complement the base erosion and profit shifting (BEPS) project of the OECD.
Read the EC’s Action Plan.
In France’s value added tax (VAT) system, VAT on purchases of goods is not deductible when it is shown that the purchaser was involved in a plan of ‘fraud’ not to pay the VAT due on the purchase. If the French tax authorities can demonstrate that the purchaser knew or must have known about the fraud being committed by the supplier, the tax authorities can reclaim the amount of VAT deducted and impose penalties of 40 or 80 percent (depending on the level of fraud).
To help companies limit their risk exposure to such ‘carousel-type fraud’, the French tax authorities have published a non- exhaustive list of indicators, intended to assist businesses in identifying risky suppliers. The factors relate to:
Companies may also consider evaluating their internal processes to counter any fraudulent VAT scheme.
Read the article*
*Fidal is a separate and independent tax law firm that works with KPMG member firms on a non-
exclusive basis in relation to the provision of tax services in France.
Reports from Hong Kong indicate that the Inland Revenue Department (IRD) is ready to challenge transfer pricing arrangements. The level of details and sophistication of the information requested about allocation recharges from head office and service companies is increasing. Taxpayers should consider the sustainability of their current transfer pricing arrangements, evaluate their transfer pricing documentation, and assess areas of potential controversy.
Read the article
India signed its first advance pricing agreement (APA) rollback– a unilateral APA rollback with a U.S. multinational company – since the Central Board of Direct Taxes announced the rollback rules in March 2015.
India’s APA rollback rules provide for an extension of the terms of an APA concerning the pricing of international transactions for the prior 4 years preceding the 1st year from which the APA is to apply. The APA signed with the US company covers a period of 9 years, providing certainty and litigation protection for the past 4 years and the next 5 years.
Eight more APA rollback agreements are expected to be signed in the near future.
Read the article
The Japanese Ministry of Finance announced on 16 July 2015 that the governments of Japan and Germany reached an agreement in principle for a new income tax treaty.
The new treaty would replace the existing agreement signed in 1966, as amended in 1979 and 1983. The new tax treaty would provide for:
The treaty is expected to be signed after Japan and Germany each complete certain domestic procedures. Details of the amendment will be clarified at that time.
Read the article
Luxembourg currently has 76 income tax treaties in force and 29 more under negotiation. Tax treaties can provide a legal framework not only for the avoidance of double taxation and fiscal evasion, but also for international administrative cooperation between Luxembourg and its treaty partners in terms of mutual assistance and procedures and exchange of information. Also, the policy of Luxembourg officials has been to negotiate access to tax treaty protection for investment funds defined as collective investment vehicles (UCIs).
In June 2015, the Luxembourg Minister of Finance submitted to the Parliament a bill of law on the ratification of four income tax treaties – with Singapore, Andorra, Croatia and Estonia – and six protocols amending existing tax treaties – with Mauritius, Ireland, Lithuania, Tunisia, France and the United Arab Emirates. These treaties and protocols generally follow the Organisation for Economic Co-operation’s and Development’s (OECD) model convention.
Except for the protocol with France, the protocols were concluded to bring the articles on exchange of information in line with OECD standards. The protocol to the Luxembourg-France income tax treaty includes measures to change the rules applicable to the taxation of capital gains realized on the sale of shares or other rights in real estate companies and to allocate the right to tax these gains to the country where the real estate is located (i.e., the situs principle).
Read the article
The French and Dutch Competent Authorities recently reached an agreement on transfer prices for raw materials for a French multinational company. The French tax authorities had wanted to increase the transfer prices for raw materials to the Dutch group company related to the French multinational company on the basis of comparable uncontrolled prices. The Dutch tax authorities wanted to reduce those transfer prices by applying a Dutch transactional net margin method, with profit being 1–2 percent of sales.
Requests for European Union arbitration were filed in June 2012 covering the years 2005 – 2008, first by the Netherlands and then by France. The French and Dutch Competent Authorities discussed and agreed the case. In February 2014, the Dutch Competent Authority accepted the French position and withdrew all past Dutch tax assessments.
The French company and Dutch taxpayer then had to agree to the outcome, which took until the summer of 2015. French court cases on transfer pricing for years prior to 2005 continue at a local French level. The Dutch tax authorities indicated that they will again seek to dispute the transfer prices (i.e. any losses) for years after 2008, so a new EU arbitration may be required.
Further information: Eduard Sporken, KPMG Meijburg & Co
The Organisation for Economic Co-operation and Development (OECD) released three reports to help jurisdictions and financial institutions implement a global standard for automatic exchange of financial account information, including a Common Reporting Standard (CRS) implementation handbook.
The CRS handbook provides practical guidance to assist government officials and financial institutions and includes:
The other reports concern offshore voluntary disclosure programs and a model protocol for a tax information exchange agreement (TIEA).
Read the article
A report from the Organisation for Economic Co-operation and Development (OECD) reveals information about tax collection among 56 tax administrations and finds tax administrations continue to face challenges in improving their performance.
Entitled Tax Administration 2015, the report surveys 56 advanced and emerging economies (including all OECD, European Union, and G20 countries) and identifies fundamental elements of modern tax administration systems. The report uses data, analyses and examples to identify key performance trends, recent innovations and examples of good practice.
Read the article
A recent decision of the Omani Tax Committee provides an assurance that IFRS based financial statements provide the appropriate basis for computing taxable income unless the standards conflict with Omani tax law.
In this case, an Omani company, primarily engaged in electricity generation activities under a license issued by the Oman’s electricity regulator, entered into a power purchase agreement (PPA) with the Omani government (through one of its companies, i.e., the ‘off-taker’) to generate and sell to the off-taker contracted capacity of electricity. The terms of the PPA prevent the company from supplying electricity to any other customer.
In Oman, financial statements are required to be prepared in accordance with International Financial Reporting Standards (IFRS) pursuant to a royal decree. The interpretation under International Financial Reporting Interpretation Committee (IFRIC) 4 specifies that an arrangement containing a lease should be accounted for in accordance with International Accounting Standard 17 on leases (IAS 17).
The company tested IFRIC 4 provisions and concluded that the arrangement with the off-taker is in the nature of finance lease. Therefore the power plant should not be shown as fixed asset in the books of the lessor (i.e. the company). The plant should be recorded as a fixed asset in the books of the off-taker. The company’s external auditors and the off-taker shared the same view.
The tax authorities argued that the contract entered into by the company with the off-taker is not a finance lease contract for tax purposes. Therefore, the company, as the plant’s legal owner, should claim depreciation.
The matter went up to the Tax Committee (similar to a tax tribunal), which ruled that the tax authorities should follow IFRS except where the standards contradict the tax law. As the conditions given in IAS 17 in terms of a finance lease arrangement are met, the accounting treatment adopted by the company is appropriate. Accordingly, the Tax Committee ruled in the company’s favor that the company is not required to claim tax depreciation.
The decision provides some level of assurance to taxpayers that IFRS-based financial statements shall be the basis for computing taxable income. According to the court’s decision, the tax authorities are not empowered to disregard them and to arrive at accounting profits different than those disclosed in the audited financial statements.
Further information: Ashok Hariharan, KPMG in Oman
Multinational companies in Singapore currently gathering information and preparing their tax returns to meet the filing deadline of 30 November 2015 need to pay attention to the accurate collation of information and appropriateness of tax adjustments, keeping in mind new rules or requirements both in Singapore and in other jurisdictions.
The Inland Revenue Authority of Singapore currently is focused on the construction industry, and recently announced it will also be focusing its audit efforts on the chemical-products wholesale sector and travel and ticketing agencies.
Read the article
HM Revenue & Customs (HMRC) issued a consultation document on 22 July 2015, seeking comments on a package of measures intended to improve large business tax compliance, including:
Given the current focus on tax transparency and reporting, and the UK government’s consultations on its proposal to require large businesses to publish their tax strategy as it relates to or affects UK taxation, UK companies need to consider their process for disclosing tax information.
In particular, UK companies should consider establishing a process for determining what content can, and might, be usefully produced to satisfy the requests of the different stakeholder groups, balancing the cost to business and bearing in mind that a prescriptive ‘one size fits all’ approach may not be the right way to proceed with transparency.
Read the article on establishing a tax disclosure framework.
Publication of tax strategies
According to the measure, it is intended to enable public scrutiny of large business’s approach to tax planning and tax compliance. The consultation document suggests that a published tax strategy should cover a business’s attitude to tax risk, its appetite for tax planning, and its approach to its relationship HMRC. The strategy should be published annually. It is proposed that a named individual at the executive board level should be responsible for owning and signing off the tax strategy.
This transparency measure is focused on a demand for large businesses to publish vastly more information about tax. Businesses might be encouraged that the proposals do not go further than what has been proposed. Nevertheless, the proposal for businesses to also publish further information to demonstrate how their stated tax strategy is being applied in practice could present compliance difficulties, especially for groups owned outside the UK as their tax strategies may not work as a UK-only document.
Within this consultation document, penalties for non-compliance are also being proposed along a similar basis as for the Senior Accounting Officer regime. It remains to be seen whether such a penalty would be a personal liability on the named individual. If so, an inherent contradiction would arise since the board strategy is expected to be owned by the board as a whole rather than by any individual board member.
Voluntary ‘Code of Practice on Taxation for Large Business’
The consultation document states that adopting the principles contained within the code would reduce the potential for disputes and litigation by enabling quicker resolution of significant tax issues, providing more certainty for both parties, and further encouraging positive and open discussion between HMRC and large businesses.
The draft code looks like a stripped-down version of the existing Banking Code of Practice and appears to have been informed by much of the learning acquired in developing that code. It is helpful that the requirement prescribes actions ‘contrary to the intentions of Parliament’, rather than ‘consistent with’, which would cause problems in the case of legislation where the ‘intentions of Parliament’ are opaque.
One point to consider is whether such a code should be bilateral. A bilateral code that sets commitments from HMRC as well as large businesses might be better received. As drafted, it appears the code is intended to improve the behavior of presumably a considerable number of large businesses to achieve the quicker resolution of significant tax issues through earlier engagement. Given HMRC’s limited resources, it remains to be seen whether HMRC’s large business directorate would be able to cope with a significant increase in accelerated working.
‘Special Measures’ regime
The stated aim of this proposed regime is “to tackle the small number of large businesses that persistently undertake aggressive tax planning, or refuse to engage with HMRC in an open and collaborative manner.” According to the proposed regime, this will result in specific sanctions, including being named publicly, and is intended to last a minimum of two years.
The measures are in two strands:
The special measures regime will only affect a handful of large businesses that probably are now or have been in the High Risk Corporates Programme. However, the voluntary code of practice will affect all non-financial businesses, and the requirement for a published tax strategy will affect all large businesses that do not already publish a tax strategy that follows the proposed format.
The consultation is open until 14 October 2015. KPMG member firms will be submitting representations and would be interested in hearing views from large businesses affected by these proposals.
Taxpayers invested in a film partnership sought judicial review challenging the legality of partner payment notices. The UK High Court, however, rejected the challenge to the legality of payment notices issued by HM Revenue & Customs (HMRC) to the investors. HMRC has announced that it expects to issue approximately 64,000 advance payment notices by the end of 2016.
Although the courts have not yet decided the tax position of the film partnership in which the taxpayers invested, HMRC issued the partners with partner payment notices. These notices – a form of accelerated payment notice used for members in a partnership – require the partners to pay the disputed tax liabilities upfront.
Some of the partners challenged these payment notices, requesting a judicial review in the High Court on various grounds. The High Court, however, upheld the authority of HMRC to issue the accelerate payment notices.
Read the article in Weekly Tax Matters (7 August 2015)
On 16 July 2015, HM Revenue & Customs (HMRC) published the third Tax Assurance Commissioner’s annual report. To those who attended the external stakeholder event to launch the report, it seemed clear that HMRC believed they had dealt with the “impetus” requiring the implementation of the new governance arrangements in 2012. That impetus was the allegation that HMRC had settled a number of significant tax disputes improperly leading to hearings before the Public Accounts Committee and an independent review of certain settlements.
In HMRC’s view, the annual report is a valuable tool for demonstrating to “a diminishing band of critics” that HMRC does settle disputes fairly and even-handedly with all types of taxpayer.
The report highlights an increase in the number of significant cases being referred to the Commissioners via the Tax Disputes Resolution Board (TDRB), up from 48 in the previous year to 60. Interestingly, the proportion of taxpayer settlement proposals that were rejected also increased – 26 out of 58 cases on which decisions were taken, or 45 percent, up from 28 percent in the previous year. HMRC provides no analysis of the reasons for such a high rejection rate.
Based on the experience of KPMG in the UK regarding settlement proposals going through HMRC’s disputes governance, one reason for the high rejection rate appears to be HMRC’s tougher line on what constitutes a satisfactory settlement proposal. Settlement proposals that would have been acceptable to HMRC as recently as 2 years ago may be rejected today. These are marginal cases for which HMRC has the ability to either accept or reject within the terms of their Litigation and Settlement Strategy, which HMRC has seemingly become more inclined to reject.
This potential inclination reinforces the importance of engaging with HMRC carefully so that settlement proposals are well constructed and presented, giving them an improved prospect of acceptance by HMRC’s dispute resolution boards.
The report does not provide any analysis of the age of disputes being referred to the TDRB or other dispute resolution boards. It would be interesting to see the impact the new governance arrangements have had since 2012 on the time it is now taking for disputes to reach resolution.
In the experience of KPMG in the UK, the tax enquiry process in general has not become any more efficient, although the use of alternative dispute resolution and other resolution techniques have been deployed effectively in some cases. Enquiries resulting in adjustments to tax returns tend to involve a much more thorough examination of the potential penalty position than a couple of years ago. Any settlement requiring referral to HMRC’s disputes governance take additional time to enable any proposals to be submitted and considered.
The Internal Revenue Service released two revenue procedures offering guidance on the processes for requesting US competent authority assistance and applying to take part in the advance pricing agreement (APA) program.
These articles represent the views of the authors only, and do not necessarily represent the views or professional advice of any KPMG International member firm.
The information contained herein is of a general nature and based on authorities that are subject to change. Applicability of the information to specific situations should be determined through consultation with your tax adviser.