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BEPS – BE PREPARED

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By Rob Wagner, Chair of Praxity’s Global Tax Working Group and managing partner, National Tax Services at US-based BKD, LLP

Rob Wagner

Rob Wagner

In October last year, the OECD issued its 15 point Action Plan, recommending how to curtail multinational companies shifting profits among differing tax jurisdictions. The OECD’s report, endorsed by the G20 nations plus India, represented two years’ intensive work to tackle Base Erosion and Profit Shifting (BEPS).

Fast forward to March 2016 and in an update submitted to G20 finance ministers and Central Bank governors, the OECD reports countries are already making legislative changes in order to implement its BEPS measures, particularly points 2, 8, 10 and 13 of the Action Plans.

Nations are keen to follow the OECD’s recommendations; 32 countries have already signed the Multilateral Competent Authorities Agreement which provides the legal mechanisms to exchange automatic country-by-country reporting and more have confirmed their intention to sign this year.

Given the pace at which change is occurring, it’s important businesses know what the 15 Action Plans are, how they will be implemented and what this means for emerging economies.

In some cases, countries are already tackling the recommendations, while others already have anti-abuse rules in place; for example, the US already has rules to tackle Controlled Foreign Corporation and treaty benefit abuse etc.

Implementation

As far as implementation is concerned, some measures, such as the revised guidance on transfer pricing, may be immediately applicable; others require changes to bilateral tax treaties – achieved via the multilateral instrument under Action 15.

Others require domestic law implementation. For example, Luxembourg has withdrawn its patent box regime, Ireland announced what it considers the world’s first OECD-compliant patent box regime and the UK is reviewing its patent box regime for compliance with Action 5.

The OECD confirms there will be monitoring, including targeted monitoring of the minimum standards on treaty shopping, on dispute resolution and on the implementation of country-by-country reporting.

BEPS recommendations are not legally binding. While they are soft law legal instruments, there is an expectation that countries will implement them accordingly. Areas are likely to converge over time, ie, hybrid mismatch arrangements, transfer pricing documentation and country-by-country reporting; and it appears we can look for changes to US law or regulations in these areas.

It is highly unlikely, however, the US would adopt any transfer pricing legislation that significantly deviates from the arm’s length standard currently used (indeed Actions 8-10, reaffirm a commitment to the arm’s length standard).

A post-BEPS world

Under this new framework, a key concern is whether governments will enact laws that are politically motivated and inconsistent with BEPS. An example being the UK-diverted profits tax system. Another worry is whether tax authorities around the world will be adequately staffed and trained on BEPS so that the rules are appropriately applied.

Realistically, there could be more potential conflict in a post-BEPS world with some tax authorities not accurately understanding the rules and asserting BEPS as their means for posting tax adjustments against multinational companies. Many US businesses and political leaders are concerned US taxpayers may end up subsidizing the BEPS measures as US multinationals could be subject to higher foreign tax which may be available for credit against US tax liability, thus reducing US government revenues.

There’s also concern BEPS recommendations may embolden tax authorities to overstep their bounds, forcing taxpayers to seek relief from double taxation through costly and time-consuming dispute resolution provisions. Finally, many businesses and legislators are concerned confidential information may be put at risk from competition.

The impact

Most mid-size businesses do not have overly-complicated tax structures so the impact should be minimal on these businesses. But in order to evidence their tax structures, firms will have to demonstrate compliance which brings with it additional costs. Larger multinationals with more complex tax structures will have more work to do to comply with BEPS-related law changes. Businesses should therefore seek advice early on; it will make the process simpler and reduce costs.

Country-by-country reporting is unlikely to have an initial impact on smaller and mid-size businesses as the measures have been crafted to exclude companies with revenues below a certain de minimis threshold (the new country-by-country reporting template does not apply to groups with annual consolidated revenue in the immediately preceding fiscal year of less than EUR 750 million). However, governments do have a tendency to reduce the thresholds over time with new rules creeping in.

Emerging economies

This fairer system will be positive for emerging economies, particularly as it was perceived profits were being stripped out of developing countries and transferred to the parent company. Some advocate using formulary apportionment to determine the profits of an enterprise in a particular country, but this disregards legal distinctions, risks and functions and simply looks at a company as a single unit and divides its income based on some agreed-upon factors. Using formulary apportionment, allocating profits largely on headcount, assets etc without taking into account valuable intangibles, does not seem to be a fair way to allocate profits.

The OECD has a FAQ section on its website, available in English, French and Spanish. http://www.oecd.org/ctp/beps-frequentlyaskedquestions.htm

BKD LLP is a member of Praxity – the world’s largest alliance of independent accountancy firms www.praxity.com

OECD Action Plans

1. Address the tax challenges of the digital economy. Examine; a company’s ability to have a significant digital presence in another country’s economy, without being liable to tax and the attrition of value created from the generation of marketable location-relevant data via digital products and services.

Also investigate the characterisation of income derived from new business models, the application of related source rules and how to ensure the effective collection of VAT/GST following a cross-border supply of digital goods and services.

2. Neutralise the effects of hybrid mismatch arrangements. Design domestic rules to neutralise the effect of hybrid instruments and entities. This may include changes to the OECD Model Tax convention to ensure hybrids/entities are not used to obtain undue treaty benefits as well as domestic law provisions that (i) prevent exemption/non-recognition for deductible payments by the payor,(ii) deny a deduction for payments not included in the recipient’s income, or (iii) deny a deduction for payment that is also deductible in another jurisdiction.

Additionally where necessary, guidance will be given on co-ordination or tie-breaker rules if more than one country seeks to apply such rules to a transaction or structure.

3. Strengthen Controlled Foreign Company rules. Develop recommendations for the design of CFC rules; this will be co-ordinated with other work.
4. Limit base erosion via interest deductions and other financial payments. Develop ‘best practice’ rules to prevent base erosion through the use of interest expense, e.g., using related and third-party debt to achieve excessive interest deductions or financing the production of exempt/deferred income and other financial payments economically equivalent to interest payments. Evaluate the effectiveness of different types of limitations and, in connection with foregoing work, develop transfer pricing guidance including the pricing of related party transactions such as financial and performance guarantees, derivatives, captive and other insurance arrangements.
5. Counter harmful tax practices more effectively, taking into account transparency and substance. Revamp work on harmful tax practices and improve transparency, including compulsory spontaneous exchange on preferential regime rulings as well as requiring substantial activity for such regimes. A holistic approach is required in evaluating these regimes in the BEPS context.
6. Prevent treaty abuse. Develop model treaty provisions and recommendations regarding domestic rules to prevent the growth of treaty benefits in inappropriate circumstances. Clarify tax treaties that are not intended to be used to generate double non-taxation and identify tax policy considerations before entering into a tax treaty with another country.
7. Prevent the artificial avoidance of Permanent Establishment status. Develop changes to PE definition to prevent artificial avoidance of PE status in relation to BEPS, including use of commissionaire arrangements and specific activity exemptions.
8, 9 and 10. Assure that transfer pricing outcomes are in line with value creations. 8. Intangibles – develop rules to prevent moving intangibles among group members. This includes adopting a broad and clear definition of intangibles, ensuring profits associated with their transfer and use are allocated according to value creation, developing rules for transfers of hard-to-value intangibles, and updating guidance on cost contribution arrangements.

 

9. Risks and capital – develop rules to prevent risks transferring among, or allocating excessive capital to, group members. Adopt measures to ensure inappropriate returns will not accrue to an entity solely because it has contractually assumed risks or provided capital. Ensure returns align with value creation.

 

10. Other high-risk transactions – develop rules to prevent transactions which would not or rarely occur between third-parties. Adopt measures to clarify circumstances when transactions can be recharacterised and the application of transfer pricing methods (particularly profit splits in the context of global value chains). Protect against common types of base eroding payments, such as management fees and head office expenses.

 

11. Establish methodologies to collect and analyse BEPS data and the actions to address it. Develop indicators of the scale and economic impact of BEPS as well as tools to monitor and evaluate their effectiveness on an ongoing basis. Assess a wide-range of existing data sources, identify new types of data to collect and develop methodologies based on aggregate and micro-level data. Respect taxpayer confidentiality and tax and business administration costs.
12. Require taxpayers to disclose their aggressive tax planning arrangements.

 

 

Design mandatory disclosure rules for aggressive or abusive transactions, arrangements or structures. Use a modular design to ensure consistency, allowing for country-specific needs and risks. Focus on international tax schemes and information sharing between tax administrations.
13. Re-examine transfer pricing documentation. Develop transfer pricing documentation rules to enhance tax administration transparency while considering compliance costs. Require MNEs to provide governments with information related to their global allocation of income, economic activity and tax paid among countries.
14. Make dispute resolution mechanisms more effective. Address obstacles preventing treaty-related disputes under Mutual Agreement Procedure, such as the absence or denial of arbitration treaty provisions.
15. Develop a multilateral instrument. Enable jurisdictions to analyse the tax and public international law issues when developing a multilateral instrument and amend, where appropriate, bilateral tax treaties.

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Digital collaboration: Shaping the Future of Finance

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By Ryan Lester, Senior Director of Customer Experience Technologies at LogMeIn

With heightened economic uncertainty and increased customer expectation becoming the norm in the banking industry, it is understandable that the sector is struggling to keep afloat. Due to its precarious nature, banking institutions are trying their best to ensure they remain relevant in the competitive landscape and guarantee that their customers continue to be a priority.

When it comes to the first half of this year, the pandemic has shown how easy it is for industries to fail. Customers and companies alike had to get used to the new normal, as physical locations started to close. The banking industry felt this first hand, as banks were made to restructure how their business ran, with restricted opening hours and a wider push to motivate people to use online banking.

While some had already embraced digital options prior to the pandemic, this proved to be a stark contrast to the elderly population, who frequently visited branches to access their finances. Moving forward, banks have to adopt new methods to ensure customers get the most out of our their accounts, without their experience suffering.

Heightened Customer Expectations

When the pandemic reached its peak, people were encouraged to use online banking, as telephone contact was under strain with long waiting times and pressure mounting on contact centre agents. According to Fidelity National Information Services (FIS), which works with 50 of the world’s largest banks, there was a 200% jump in new mobile banking registrations in early April, while mobile banking traffic rose 85%.

With branches remaining closed, customers were continuously being urged to limit the amount of calls they made to the most urgent cases and consider whether they could solve their answers through mobile online banking or checking the company website. Although already being adopted in pockets of the industry, this was a real catalyst that spurred banks to up their game on digital channels and with self-service tools.

Banks are challenged with precariously balancing customer needs with the cost of personalised support. With the demographic of customers changing over the last few years, customers are becoming increasingly younger and more comfortable with technology. Influenced by the “Amazon Effect”, their expectations have raised to an all-time high, placing record strain on the sector

Customer experience isn’t just about support anymore, it’s about serving your customer at every point in the journey. Companies have an opportunity to elevate the experience they provide by moving beyond one-and-done interactions to create continuous engagements with their customers. It is starting to become a primary competitive differentiator in the market and one that doesn’t have a lot of variation. Deploying AI chatbot technology will be able to strategically help banks improve customer experience and raise the level of support that agents provide.

Digital collaboration: Working around the Clock

The benefits of adopting digital channels and self-service tools are second to none. By implementing chatbots, fuelled by conversational AI, banks will be able to help serve a wide range of customer queries and ensure they are protected from fraud and scams.

Ryan Lester

Ryan Lester

Conversational AI is exactly what it sounds like: a computer programme that engages in a conversation with a human. When it comes to service delivery, conversational AI can be deployed across multiple channels to engage with customers in ways that effectively address evolving customer needs. At a time defined by COVID-19, self-service tools such a conversational chatbots can work around the clock to solve customer queries in a concise and timely way. Of course, self-service tools won’t completely replace human agents in the banking industry, but they will help companies re-distribute customer traffic and workflows in ways that enhance customer experience. Self-service tools fuelled by conversational AI can also improve employee experience because service employees can handle fewer, but higher-level service tasks that chatbots might escalate to them.

Adopting new tools to help facilitate consistent and concise answers and help maintain customer experience is on the forefront of many industry minds. Banks such as the Natwest Group have seen this first-hand and are testament to the benefits that a good digital experience can provide. Simon Johnson, Capability Consultant, Digital at NatWest Group highlights NatWest’s use of digital tools during lockdown, “Over the last few months, we’ve learnt how to use digital tools to help our employees remotely. From a banking perspective, there have been a lot of changes including base rates, waive fees and the best ways of contacting our vulnerable customers, ensuring we keep them protected from frauds and scams.

“By introducing our Bold360 chatbot interface, Ella, we’ve been able to get relevant information out quickly, apply the best practice and ensure that our customer journeys are being developed correctly. Due to the volume of questions, some of our customers were finding themselves waiting longer than usual. So digital channels become essential to helping reduce the wait time. Using Bold360, we were able to mitigate issues and answer questions in a more timely way through our chatbot.

“Moving forward, as we open more digital services, we are analysing our data to see if customer will return back to their usual way of banking, now that they’ve seen what a good digital experience can provide. Either way, with Ella, we are ready.”

Chatbots and Humans: The Best Option for Customer Service

Over the last year, banking institutions have recognised the power that digital collaboration can have to their success. Delivering exceptional customer service and support is key for any business wanting to stay competitive in today’s market and banks are especially challenged with precariously balancing customer needs with the cost of personalised support. Leveraging the right technology, such as AI-powered chatbots, will enable the banking industry to provide better support and a more robust customer experience in the long term. Other institutions must follow suit, or risk becoming obsolete.

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A sleeping digital giant wakes? 4 key trends accelerating payments transformation in the US

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A sleeping digital giant wakes? 4 key trends accelerating payments transformation in the US 2

By Lauren Jones, International Payments Ambassador, Icon Solutions

The US payments industry is undoubtedly ripe for change. Before the unprecedented shock of COVID-19, digitization and payments transformation initiatives had been organic, piecemeal and predominately the preserve of the largest banks.

Now, increasing pressure means that financial institutions of all sizes are working to define a digital strategy to unlock new opportunities, drive business value, and stay competitive. But beyond the immediate impact of COVID, what underlying trends are accelerating digitization in the US?

  1. Real-time payments – the stimulus for change  

Real-time payments have been met with a degree of caution by US financial institutions. Risking traditional profit generators in return for potential revenues down the line is a gamble many have not been willing to take. But immediate payments are coming to the US whether banks like it or not.

Major payments infrastructure providers, including NACHA and The Clearing House (TCH), have moved to encourage immediate payment adoption in recent years. But the Fed, frustrated with a slow rate of progress, has announced that it is pressing ahead with the implementation of its FedNow system (despite significant industry objection). Although the Fed’s true intentions are open to interpretation and this may just be a play to accelerate private initiatives, it is a clear signal that they mean business.

This means holdouts risk their own ‘Kodak’ moment if they miss the huge opportunities in front of them by fixating on traditional revenue streams. Banks are in a position to support innovation across entire industries such as healthcare, which could be released from the constraints of paper-based bureaucracy and slow, expensive transactions.

Another opportunity that can be unlocked via instant payments is ISO 20022 (used in the TCH RTP system). It is the future of payments messaging standards and can greatly enhance various payments processes through increased data-carrying capabilities. More importantly given the current climate, citizens reliant on federal or state support can benefit from RTPs combined with additional data to immediately access emergency funds.

  1. The kids are growing up

The US is getting older. Consumers who were 10 when the iPhone first launched are now 23. This means we are seeing a ramp-up of digitally native Gen Z consumers (roughly those born between 1995 and 2010) accessing banking services.

Demographics are an inexact science and not perfect predictors (there are technophobe college students and 100-year-old Instagram influencers), but we can detect noticeable trends.

Younger customers don’t usually choose a bank because there is an ATM in their neighbourhood, a slightly better interest rate or an advert in the newspaper. Rather, a strong digital presence, personalised tools, rewards and experiences, and the trusted recommendations of friends and family, will have a more significant impact on customer acquisition.

Banks must look at the effect this will have on their longer-term digitalization strategy and be able to segment what this emerging customer base might want and how they will interact in years to come.

  1. Checkmate? Evolving corporate requirements

    Lauren Jones

    Lauren Jones

Corporate treasurers are people and their experience of seamless, immediate payments in their personal lives shapes expectations in the workplace. Although check usage for business-to-business (B2B) transactions is still the norm in the US and barriers remain, corporates are increasingly demanding the ability to transact in a real-time, omnichannel environment, 24×7.

The benefits are clear. Corporate treasurers stand to enjoy enhanced liquidity management and transparency, greater control over payments and enhanced data for reconciliation purposes. And for consumers, alternative digital payment options such as buy now pay later promote choice and flexibility.

  1. Increasing competition

A significant consequence of emerging consumer and business demand for digital offerings is the increase in competition from fintechs, technology giants and other third-parties. Traditionally, incumbent banks have enjoyed the advantage of consumer trust to offset more limited innovation. But as consumers become more comfortable entrusting their financial transactions to non-banks, banks must differentiate and digitize to remain competitive.

Data is where the technology giants excel, and their ability to personalise experiences and emotionally connect with their users is unprecedented. Banks need to learn from the positive aspects of this model to better understand their users and deliver meaningful, useful products and services.

For data to become the cornerstone of a banks’ customer relationship and take services to the next level, breaking the channel silos and extracting value from a comprehensive dataset will be decisive. But with only 18% of banks reporting that they are in the process of shifting from a transactional revenue model to a data-driven revenue model, this work has some way to go.

Taking customer propositions to the next level

Customers now expect services that work for them, not their banks. All banks, no matter the footprint, need to move quickly to offer a broad digital service platform that adds value to both the customer and the bank.

By defining a robust payments transformation strategy, banks of all sizes can remain fiercely competitive by rapidly lowering costs, unlocking revenues and promoting innovation

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Return to Work Doesn’t Mean Business as Usual When it Comes to Travel and Expense

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Return to Work Doesn’t Mean Business as Usual When it Comes to Travel and Expense 3

By Rob Harrison, MD UK & Ireland, SAP Concur

The last few months have been an exercise in adaptability for businesses across the UK. With the sudden mandate to work from home, company processes that were ingrained in employees’ day-to-day routines were either put on hold or turned upside down. The new office normal now includes virtual meetings, conversing through instant messaging instead of in the hallway, and the redefining of “business casual” attire.

Many of the processes that have undergone changes fall into the category of travel and expense. With most business travel on hold and the nature of expenses changing, finance managers have had to adjust policies and practices to accommodate the new world of work. Recent SAP Concur research found that 72% of businesses have seen changes in the levels and types of expenses submitted, but only 24% have changed their policies to support this. Examples of travel and expense related changes that were made at the beginning of work from home mandates include:

  • A halt to business travel and its associated expenses.
  • Temporarily ending expensed meals for business lunches, dinners, or in-office meetings.
  • Increase in office expenses like monitors and chairs as employees furnish their home offices.
  • New expenses to consider like Internet and cell phone bills for employees who must work from home.

Now, as companies begin thinking about return to work plans, finance managers are discovering it’s not simply business as usual again. SAP Concur research found that many expect finance will return to normal quicker than general workplace practices, but vast majority see the process taking up to 12 months. New policies and processes need to be put in place to accommodate travel restrictions and changes in expenses. While finance managers need to stay flexible as the business environment continues to evolve, spend control and compliance should still be a high priority.

Here are a few questions that can help finance managers prepare for return to work while keeping control and compliance top of mind:

  • What will travel look like for the company? Finance managers must work with travel and HR counterparts to determine the need for employee travel, if at all, and how to keep employees safe. At SAP Concur, we surveyed 500 UK business travellers and found that health and safety is now seen as more than twice as important than their business goals being met on trips (34% versus 16%. Clear guidelines should be developed, even if they are temporary or evolving, so it’s clear who can travel, when they can travel, and how they can travel. Duty of care plans should also be re-evaluated and businesses should ensure they know at all times where employees are traveling for business and how they can communicate with them in the event of an emergency.
  • Who needs to approve travel and expenses? While it may be temporary, businesses may have to implement a more stringent approval policy for travel and other expenses. Due to health concerns related to travel and the need to conserve cash flow, business leaders like CFOs may want to have final approval over all travel and expenses until the situation stabilises. To help ensure new approval processes don’t cause delays and inefficiencies, finance managers should implement an automated solution that streamlines the process and allows business leaders to review and approve travel requests, expenses, and invoices right from their phones. According to SAP Concur research, 11% of UK businesses implemented some automation of financial processes in response to COVID-19. This is definitely set to increase post-pandemic.
  • Rob Harrison

    Rob Harrison

    What types of expenses are within policy? Prior to social distancing, employees may have been allowed to take clients out to dinner. In-person team meetings held during the lunch hour, may have included expensed lunches. As employees return to work, finance managers need to determine if these activities and expenses will be allowed again. Clear guidelines must be put in place and expense policies need to be updated to reflect any changes.

  • What happens to home office items that were purchased? While new office equipment may have been purchased for employees’ home offices, they remain the business’s property and what to do with them as employees return to work needs to be determined. Perhaps employees will continue to work from home a few days a week and need to keep the equipment to ensure productivity. However, if a full return to work is expected, finance managers have options that can maximise their asset investment and possibly save the company money, like replacing old office equipment with the new purchases, reselling to a used office furniture company, or donating to a non-profit.
  • How can cost control be ensured? For many businesses, cash flow will be tight for the foreseeable future. Spend needs to be managed to help ensure recovery and stability. An important aspect of controlling costs is having full visibility of expenses throughout the company. Implementing an automated spend management solution that integrates expense and invoice management brings together a business’s spend, giving finance managers an understanding of where they can save, where to renegotiate, and where to redirect budgets based on plans and priorities.

Once finance managers have asked themselves the questions above and determined how they want to approach travel and expense procedures, it’s vital they create guidelines and communicate clearly to employees. Compliance can only be ensured if employees have a clear understanding of what has and has not changed with travel and expense policies and what’s expected as they return to work.

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