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DAC6: Prepare for Reportable Cross-Border Arrangements in 4 Steps

09 Sep 2021
BEPS, Cross-border, Europe, Tax Planning
Annex IV of the DAC6 Directive, cross-border, cross-border transactions, DAC6, DAC6 Directive, DAC6 hallmarks, EU Mandatory Disclosure Rules, EU Mandatory Disclosure Rules for cross-border arrangements, intermediary, main benefit test, prevent tax penalties, reportable cross-border arrangements, taxpayer, transfer pricing

Doing business in Europe means taking into account the many local rules, EU laws and international regulations. It is not unusual to benefit from various tax benefits or to research the best possible tax solutions. However, tax evasion and aggressive tax schemes are highly unwanted and will be fined. Therefore, it is beneficial to look into the DAC6: The EU Mandatory Disclosure Rules for cross-border arrangements. Let’s check if your company is well-prepared for cross-border arrangements.

What is DAC6?

DAC6 is an EU Council Directive that entered into force on 25 June 2018 and is implemented by EU jurisdictions into EU national law. Furthermore, DAC6 amends the cooperation between the EU Member States by focusing on joint actions and audits.

This directive’s primary goal is to harmonize tax rules in Europe by providing tax authorities an early’ warning system’ that notifies potentially aggressive tax planning schemes. Therefore, intermediaries are obligated to disclose potentially aggressive tax planning schemes on cross-border arrangements, otherwise called ‘reportable cross-border arrangements.

Step 1: Check who is required to disclose reportable cross-border arrangements

Intermediaries, and in certain situations, taxpayers, have an obligation to report cross-border arrangements to the authorities. An intermediary may be relieved from its reporting obligation if they can prove that another intermediary has already reported the relevant arrangement. The image below shows an overview of who is required to disclose these arrangements.

Step 2: Check if the arrangement is cross-border and ‘reportable’

For an arrangement to be cross-border, at least one of the participants must be located in more than one EU Member State. There is no reporting obligation if all participants are tax residents in the same jurisdiction or if there is no connection with any EU Member State. However, even an arrangement between two entities from the same EU Member State may be considered cross-border in some cases. A prime example is an EU entity with foreign shareholders. Below is a short overview of examples of non-cross-border and cross-border transactions.

For an arrangement to be reportable, one or more of the DAC6 Hallmarks must be met as set out in Annex IV of the DAC6 Directive. Therefore, a cross-border arrangement will only be reportable if one or more DAC6 Hallmarks are met. These hallmarks are characteristics or features of a cross-border arrangement that may indicate a potentially aggressive tax planning structure. The five categories of the hallmarks set out by the DAC6 directive are:

  1. Generic hallmarks linked to the main benefit test
  2. Specific hallmarks linked to the main benefit test
  3. Specific transactions related to cross-border transactions
  4. Specific hallmarks concerning automatic exchange of information and beneficial ownership
  5. Specific hallmarks concerning transfer pricing arrangements

The ‘arrangements’ mentioned in the hallmarks represent undefined terms included in the five hallmark categories.

Step 3: Do the Main Benefit Test

The intermediary or taxpayer may benefit from a tax advantage when they fulfill the ‘main benefit test.’ However, this tax advantage may only be considered under generic hallmarks of categories A, B, and (some parts of) C.

However, it is crucial to keep in mind that due to the broad scope of the hallmarks, DAC6 creates a risk of under-reporting and over-reporting. Furthermore, there is no consistent interpretative guidance agreed between the EU Member States.

Step 4: Act on time and prepare for penalties

You should report reportable cross-border arrangements through a special reporting form. Each Member State has its tax authority, so it is recommended to check out your local tax authority website. Generally, you must report a reportable cross-border arrangement within thirty days of the earliest of:

  1. the day after the arrangement is made available for implementation;
  2. the day after the arrangement is ready for implementation; or
  3. when the first step in the implementation of the arrangement has been made.

In case of non-compliance, such as non-reporting, incomplete or inaccurate information, the relevant intermediary and taxpayer may be subject to penalties. These penalties are up to a maximum of €870,000. In some instances, there will be a criminal prosecution. In other words, it is better to prevent penalties altogether. After all, significant sanctions and reputational risks apply to not only the businesses but also the intermediaries!

As mentioned earlier, there are risks in reporting your cross-border arrangements, such as under- and over-reporting. Meanwhile, many companies either miss out on tax benefits or end up overlooking essential hallmarks. We at Global Connect Admin provide tax advice for many European companies and international companies that have activity in the EU. Do you have any questions regarding the DAC6, (reportable) cross-border arrangements or other vital information to do business successfully? Feel free to send us any questions our way; we would love to assist you.

Sources

AKD Benelux Lawyers – EUR-Lex

The Future of Accounting Standards in Japan: IFRS or Japanese GAAP

05 Mrz 2021
Cross-border, GAAP, IFRS, Japan, Tax Planning
accounting standard, accounting standards Japan, financial management, financial management Japan, GAAP, IFRS, IFRS GAAP Japan comparison, IFRS Japan, IFRS standards, IFRS versus GAAP, International Financial Reporting Standards, J-GAAP, Japan, Japanese companies, Japanese GAAP, Japanese Generally Accepted Accounting Principles, Japan’s Modified International Standards, JMIS, M&A, US GAAP

The four sets of accounting standards in Japan are the International Financial Reporting Standards (IFRS), Japanese Generally Accepted Accounting Principles (J-GAAP), Japan’s Modified International Standards (JMIS) and the United States Generally Accepted Accounting Principles (US GAAP). In this article, we explain why IFRS and J-GAAP are the most prominent accounting standards in Japan. Whereas J-GAAP is mostly used for Japanese small-medium enterprises (SMEs), more and more Japanese companies apply to IFRS every year. As a Japanese company, with or without (foreign) subsidiaries, what should you keep in mind when applying these standards? Is it more convenient to use J-GAAP since it is well implemented? Or is it perhaps more desirable to choose IFRS since this method makes comparing per country more convenient?

IFRS in Japan

IFRS is principle-based, emphasizes balance sheets, and has global standards, with a flexible implementation convenient to use and easy to understand. Both Japan and the US implement GAAP but have adopted IFRS as a bylaw principle. This is a set of detailed rules regarding accounting standards, interpretation guidelines, practical guidelines and more. However, the rules are roughly sketched compared to J-GAAP. Many notes need to be taken with efficient substantiation for a sufficient interpretation of details per company and country. Unlike J-GAAP, IFRS includes non-operating income as ‘other operating income’ and ‘other operating expenses.’

J-GAAP

In Japan, the income statement is emphasized as information for evaluating the asset value required for investors and creditors and the profit and loss statement for a certain period. Japanese accounting standards implement ‘ordinary’ and ‘extraordinary’ profit and loss. Non-operating income – such as dividends and stock interests, deposits and savings – and operating income – such as main business profit – are included. After deducting non-operating expenses (e.g., loss on sales of interest payments and loans), ordinary income is an essential indicator of corporate profitability under the Japanese accounting standards.

IFRS versus J-GAAP

 

 

 

 

 

 

For companies with a subsidiary or subsidiaries overseas, the implementation of IFRS can unify the accounting indicators: Accounting management becomes convenient by comparing everyone’s performance efficiently. Japanese companies without subsidiaries can apply to IFRS as well if they have a capital of 2 billion yen or more, or are newly registered to the stock market. The application is voluntary, as a de facto national policy. At this moment (March 2021), no conclusion has been reached by the Japanese government regarding compulsory applications.

 

 

 

 

 

As stated by the Companies Act, disclosure under J-GAAP is still required, so companies have to prepare multiple reports for both IFRS and the Japanese accounting standards. As IFRS is based on principles, a significant amount of information is necessary, which increases the amount of clerical work involved and the burden on the person in charge.

 

 

 

 

 

 

‘Goodwill’ is the difference between a company’s acquisition price and its book value. Under J-GAAP, a fixed amount is amortized and expensed every year, so profits in the account settlements will inevitably decrease. Goodwill must be amortized within every 20 year acquisition period, but in IFRS, this is not the case. In the IFRS case, goodwill is amortized unless the corporate value drops significantly, resulting in not being recorded as an expense. The value decreases after each period, registered as an impairment loss without amortization.

 

 

 

 

 

 

It will cost a certain amount of money to switch from J-GAAP to IFRS. Changing standards, systems, and audits costs time and money, making companies think twice before switching systems, especially if they choose to do business in Japan only.

 

 

 

 

 

 

Companies that are active in mergers and acquisitions (M&A) can profit in their financial results with IFRS. Since IFRS is a globally used method, many foreign investors understand IFRS better than J-GAAP. Examples of companies applying IFRS that are active in M&A are Rakuten and Softbank.

 

 

 

 

 

 

In December 2018, Japan erased the variances between IFRS and J-GAAP, by bridging the gaps. However, IFRS is different from Japanese conventional accounting standards, which can make application challenging. IFRS is frequently revised, so companies have to consider this as well. As mentioned before, Japanese companies adopting IFRS are increasing but compared to the world, the number of applications is still small, making referred information scarce.

 

In Japan, J-GAAP still mostly applied standard; however, with global IFRS support and more Japanese companies applying this standard, IFRS is most likely the accounting future for Japan. IFRS is frequently revised and has different rules than J-GAAP, so you need to keep up to-to-date with the latest information and knowledge, which is both rewarding yet time and cost-consuming. This track of data can be quite challenging, so many companies leave this part to an expert. If you are looking for an expert to help you with this, feel free to contact us. Global Connect Admin (GCA) already helps multinationals with subsidiaries with IFRS standards, accounting and financial management, and fiscal reports. While they focus on their core business, we assist them with their financial business. Feel free to ask us questions or read other GCA articles.

Related GCA articles

Cross-Border Positions during the pandemic

The Brexit impact on Japan

The Bond Market in EU, China and Japan

Cultural business differences between Germany and the Netherlands – an Overview for the Japanese businessperson who might be working with both countries

The New IFRS 16 in China

Sources

Digima – KPMG Japan

Transfer Pricing Agenda 2021: Tax Certainty

29 Jan 2021
BEPS, Current news, Europe, Tax Planning, Tax Pricing Agenda
ADS, BEPS, BEPS 2.0, CFB, global tax, KPMG, OECD, Pillar One, Tax digitalisation

Tax security and certainty are the backbones of the world of taxes. The goal of the OECD/G20 BEPS project is to create a consensus-based international tax rule to address base erosion and profit shifting, thereby protecting tax bases. At the same time, this also ensures the provision of more certainty and predictability to the taxpayer.

 

The development of BEPS 2.0

On the 14th of October 2020, the OECD, with support of the G20, published the Tax Challenges Arising from Digitalisation report on the  BEPS 2.0 Pillar One¹ Blueprint. The deadline for (draft) submissions for the report focusing on Pillar Two² was the 14th of December 2020, with virtual public consultation meetings on the 14th and 15th of January 2021. Reports with a consensus solution and elaboration of technical aspects are expected to be published during this year, with implementation – using MLI – for the relevant agreement by the end of 2021.

¹In Pillar One the profits are redistributed among market countries.

²Pillar Two introduces the global minimum tax rates.

Pillar One

Pillar One aligns tax rights with the involvement of the local market. There is a need for a multination consensus for this to happen; otherwise, the unilateral digital tax measures could increase significantly.

Pillar One is a series of proposals to rethink tax allocation rules in a changing economy. The intent is to attain some of the remaining profits of multinational corporations taxed in the jurisdiction resulting in revenue. Think of residual profit generated by capital, risk management functions, and/or intellectual property. Automated Digital Services (ADS) and Consumer-Facing Businesses (CFB) apply as well. This makes the scope wide enough so that the encompassing companies can benefit from significant and long-lasting interactions with customers and market users. This process links tax rights related to these companies‘ income sources, which do not need to depend on physical presence in the jurisdiction.

 

 

Amount A:

The new tax law awards high profits based on a formula, which does not necessarily take the business position. Amount A includes winnings earned through online activities of an automated digital nature of goods or services sold to consumers, including the associated IP licenses. Specific inclusions and exclusions are suggested from this. In addition, Amount A has been allocated based on local revenues, determined through procurement rules, with elimination measures for double taxation.

 

Amount B:

Amount B is the standard business compensation for ‚baseline‘ routine marketing and distribution activities. Alternative methods for this Amount can be applied if supported by evidence.

 

 

What companies should be aware of

The changes regarding taxation have a multinational set-up. They are also technically complex; the effects and uncertainties will be drastic for many companies. The size of the covered companies is not yet final. However, this is by no means limited to highly digitized business models.

Implementation of the BEPS 2.0 measures is likely to occur soon, although many details are still unclear. The rules do not only apply to classic digital companies. In addition, these rules will shift the installation location in favor of the market states. The technical implementation is demanding; the demands on availability and integrity of data are high. New risks of double taxation are emerging, which can probably only be mitigated by international communication processes.

 

It is important to stay on top of the news and keep your business as stable as possible. Useful and necessary information on BEPS can be found on the websites of OECD and KPMG. Seeking professional assistance is always helpful to avoid potential issues. We are always here to hear your needs.

Related GCA articles

Tax Pricing Agenda 2021: Tax Innovation

Tax Pricing Agenda 2021: Tax Efficiency

Transfer Pricing Guidance on Financial Transactions by OECD

Certainty in Global Tax Issues Expected to Increase

Base Erosion and Profit Shifting

 

Sources

OECD – KPMG

Transfer Pricing Agenda 2021: Tax Efficiency

27 Jan 2021
BEPS, Current news, Europe, Tax Planning, Tax Pricing Agenda
BEPS, COVID-19, tax, taxes, Transfer Pricing Model

To perform tax work efficiently, one must be aware of developments in the tax world, as well as the external factors that come into play. According to the OECD, COVID-19 significantly affects the tax world. However, what is the situation during and after the pandemic? How do you efficiently work on the BEPS-analysis, design a TP-model, make the correct situation analysis, and implement an appropriate implementation strategy?

 

COVID-19

On the 18th of December 2020, the OECD published their guidance on the transfer pricing implications of the COVID-19 pandemic. The guidance states the need for the analysis of industries and the competitive situation. However, the current situation cannot be compared to the financial crisis of 2008. Therefore, you should pay attention to the differentiated benchmarking, based on the outcome tests and the allocation of extraordinary costs, according to the distribution of functions and risks. ‘Force majeure’ is an exception. State aid is granted according to general TP principles. Besides, always stay alert to changes and assume that you have to make adjustments once the pandemic is over.

 

BEPS-analysis (Base Erosion and Profit Shifting)

Base Erosion and Profit Shifting (BEPS) refers to tax planning strategies of multinational corporations that exploit gaps and discrepancies of tax rules to avoid tax. The BEPS-package provides governments with 15 actions with (inter)national instruments to tackle tax evasion. The tools give businesses greater certainty by reducing disputes over the application of international tax rules and standardizing compliance requirements.

Recognizing the characteristics and risks of tax evasion, as well as safeguarding the assets and other value drivers, is useful for companies. A DEMPE-analysis (Development, Enhancement, Maintenance, Protection & Exploitation) is convenient for intangible assets.

 

TP-model (Transfer Pricing Model)

The aftermath of COVID-19 has caused changes in TP-models for multinationals. Multinational corporations must evaluate specific steps in their transfer pricing policies for protection and support during the pandemic.

In addition, a suitability analysis – e.g., benchmarking, TNMM and/or profit distribution – can help you with the design of a TP-model. A transaction structure, such as the extraction of permits, can play a significant role in the TP-model format.

The requirements fora n efficient TP-model are:

  • Be holistic. Take all tax aspects into account and make use of the operational management concept.
  • Be flexible. Respond flexibly to operational developments and take economic cycles into account.
  • Be alert. Active management of profit distribution by function and risk distribution is possible, so make sure you keep an eye on this. In addition, ensure sufficient availability and integrity of data.
  • Be compatible. Always work according to the correct specifications, work globally and consistently and ensure that you sufficiently document and declare.

 

Tax situation analysis

When analyzing the tax situation, pay attention to the following:

  • The BP history
  • The tax attributes, in particular, loss compensation
  • The tax rulings
  • The tax incentives
  • The extra tax aspects

 

Implementation strategy

Consider the following points in the implementation strategy:

  • The advance uni- or bilateral price agreements
  • The rollbacks
  • Joint audits of tax audits

Crisis-related adjustments to the TP-model concerning compliance and tax efficiency may be necessary. In principle, the situation regarding COVID-19 does not allow for unique TP routes; however, there are planning options. BEPS sets new requirements for the TP-model but also offers the possibility to check the efficiency of this model. The Base Erosion and Profit Shifting often suggest the analysis of margin-based TP-models with central strategy carriers. International mutual agreement procedures can be part of the tax strategy.

 

If you have any inquiries, feel free to talk to us, so we can work together to see how you can move forward with your company. You can find information about tax matters on the websites of the OECD and KPMG as well.

 

Related GCA articles:

Transfer Pricing Agenda 2021: Tax Innovation 

Transfer Pricing Agenda 2021: Tax Certainty

Transfer Pricing Guidance on Financial Transactions by OECD

More Global Transparency on Assets and Less Tax Havens on the List

Certainty in Global Tax Issues Expected to Increase

Sources

OECD – KPMG – KPMG Germany

Transfer Pricing Agenda 2021: Tax Innovation

25 Jan 2021
Aktuelles, BEPS, Current news, Europe, German SMEs, Germany, Steuerplanung, Tax Planning, Tax Pricing Agenda
ATAD, Europe, European Commission, Germany, KPMG, OECD, tax, Tax CMS, Tax Pricing Agenda, Transfer Pricing Life Cycle, VerSanG

Tax security is a high priority for tax authorities. The most critical influences on investment and location decisions are uncertainties in corporate tax and the VAT system. It is crucial to ensure financial security, which is also the case with digital business models in Germany.

To have Tax Certainty, you need Compliance and Controversy. You have obligations to cooperate with the tax audit, and you need to record your work before and during this audit. Are there tax disputes? Then you can use dispute settlement instruments.

 

Verwaltungsgrundsätze 2020

The recently applied administrative principles of the tax auditing practice in Germany are:

  • Increased duty of cooperation, according to Section 90 (2) AO. The relevance of documents and data of foreign persons, such as e-mails, Messenger messages, and electronic media, is necessary. If necessary, you can contractually guarantee the internal group relationship.
  • Increased obligation to cooperate in accordance with Section 90 (3) AO. You must provide evidence for data or documents as a basis for testing by using different methods.
  • Suitability documentation. With the introduction of the „Best Method“-rule, you can leverage third-party comparison data for budget calculations and sensitivity analysis for valuation.
  • Estimates, according to Section 162 (3) and (4) AO. Please refer to this Section if your documentation cannot be used, even if the content differs from the tax authorities‘ view.

 

ATAD implementation law (Anti-Tax Avoidance Directive)

Little change has taken place in ATAD. If you wish to read about this law, the European Commission is consistent in releasing ATAD information.

 

Tax CMS: Accounting obligations and tax audits in Germany

„For tax evasion of the various forms of intent, conditional intent is already sufficient.“ Legal Framework – Decision Implementing Section 143 AO.

If the taxpayer has set up an internal control system (ICS) to meet tax obligations, this may be an indication against intent or recklessness. However, this does not exclude an investigation of the concerned individual case.

 

Verbandssanktionengesets/Association Sanctions Act (VerSanG):

The basis of the association sanction is a so-called association law. This includes tax evasion. Association acts can be punished with hefty fines; the amount of the fine depends on the company’s size. If there are sufficient factual indications, public prosecutors are obliged to conduct an investigation (principle of legality). It is explicitly stated that (fiscal) CMS measures can have a mitigating effect as part of the sanction.

 

Transfer Pricing Life Cycle

Even errors down to the smallest details can cause issues. You can use the Transfer Pricing Life Cycle to determine where attention is necessary.

  1. Identification: Provide continuous identification of transfer pricing issues.
  2. Tax Assessment: Provide a tax analysis of the identified transfer pricing issues based on provided calculations.
  3. Contract and Action Instructions: Ensure documented formalization of transfer pricing models in written agreements and instructions.
  4. Methodology and Actual Implementation: Ensure uniform application of transfer pricing methods for comparable transactions.
  5. Data Delivery and Calculation: Provide a consistent calculation of transfer prices according to the defined methodology.
  6. Booking: Provide the accounting mapping of transfer prices in an understandable and uniform form. Monitoring: Provide regular monitoring of compliance with transfer pricing models throughout the year.
  7. Archiving: Provide audit-proof storage of the data in an understandable form.
  8. Process Monitoring and Escalation: Provide monitoring of processes and escalations.
  9. TP Documentation: Secure the documentation content for so-called local files.
  10. Tax audit: Ensure implementation of tax audit findings in subsequent years.

If you need further information, or if you have any questions, feel free to contact us. You can find the necessary information on this topic on the OECD (Organisation for Economic Cooperation and Development), the BMF (Federal Ministry of Finance of Germany), the European Commission, and KPMG Germany websites.

Related GCA articles:

Transfer Pricing Agenda 2021: Tax Efficiency

Transfer Pricing Agenda 2021: Tax Certainty

Transfer Pricing Guidance on Financial Transactions by OECD

Base Erosion and Profit Shifting

Transfer Pricing Focus of International Tax Authorities

Country by Country Reporting

 

Sources:

Organisation for Economic Cooperation and Development – Federal Ministry of Finance (Germany) – European Commission – KPMG Germany

AlternativerTweet   January 2021  The impact of Brexit is global. The UK and Japan both are big players in world trade. However, will Brexit cause mo… https://t.co/uGD53lARni

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