June 4, 2020
USTR initiates investigations into digital services taxes either adopted, or under consideration, by certain jurisdictions
On 2 June 2020, the United States (US) Trade Representative (USTR) announced investigations will be conducted into certain jurisdictions relating to the adoption or contemplated adoption of a digital services tax (DST).1 As outlined in a corresponding Federal Register Notice (FRN), jurisdictions included within the scope of this announcement include: Austria, Brazil, the Czech Republic, the European Union2 (EU), India, Indonesia, Italy, Spain, Turkey, and the United Kingdom.3
Investigations will be conducted pursuant to Section 301 of the Trade Act of 1974 (Section 301), with the goal of determining whether the adopted or contemplated DST of the relevant jurisdiction is unreasonable or discriminatory as well as whether it burdens or restricts US commerce.
In the event the USTR concludes that a particular DST policy falls within the scope of Section 301, the USTR will then decide how the DST policy is to be addressed. For example, the USTR could choose to impose punitive tariffs on goods from these jurisdictions, as seen with other Section 301 investigations. Companies with transactions involving the investigated jurisdictions, and therefore, potentially subject to actions on DST, should closely monitor the investigation process, consider submitting comments per the FRN (due 15 July 2020), and assess impacts if action is taken.
Certain jurisdictions have recently imposed or contemplated imposing a tax on the revenue of specific companies offering digital services to users within the jurisdiction. This tax, or DST, stands to impact certain US companies operating abroad.
The table below outlines DST metrics for the jurisdictions included within the scope of the USTR’s recent announcement.4
This USTR investigatory announcement aligns with the USTR’s previous findings relating to France’s DST.5 The French DST imposed a 3% tax on global revenue generated by “digital interface” services provided to French users. The tax was to be retroactive to 1 January 2019 and applied to companies that have global, annual revenues in excess of €750 million, or US$845 million at the current exchange rate, and that have €25 million, or US$28.15 million, of digital sales that are generated in France.6 The USTR found that France’s DST created an unreasonable or discriminatory burden to US commerce.
As a result of the USTR’s finding, the US threatened to impose tariffs on approximately US$2.4 billion of goods of French-origin. France decided to suspend the DST, and the US did not impose the proposed tariffs, pending the Organisation for Economic Co-operation and Development (OECD) negotiations of a DST agreement incorporating multiple jurisdictions.7 As of now, a final resolution has not been achieved by the OECD.
In response to the adoption or contemplated adoption of a DST within the identified jurisdictions, and pursuant to Section 301, the USTR announced it will begin investigations with the goal of determining whether the adopted or contemplated DST are unreasonable or discriminatory and whether they burden or restrict US commerce. Initially, the DST investigations will aim to assess if there is discrimination against US companies, retroactivity, and potentially unreasonable tax policy. Specifically relating to tax policy, the USTR will seek to determine whether the tax policy differs from the standards embodied within the US and international tax systems.8 As in the investigation into France’s DST, if these DST are found to be discriminatory, the USTR will then determine actions to address the policies.
The USTR is currently accepting comments relating to these investigations and those comments must be submitted by 15 July 2020.
Actions for businesses
US companies that import goods from any of the aforementioned jurisdictions subject to USTR investigations should closely monitor the USTR investigations, results, and subsequent actions. Companies should also consider submitting comments by the 15 July deadline.
Past USTR actions have included targeting specific categories of goods in certain industry subsectors. If the respective DST are found to be discriminatory, similar actions may be taken with respect to each implicated jurisdiction. Consequently, as the investigations progress, companies should be sure to fully understand the extent of products, particularly, the Harmonized Tariff Schedule of the US (HTSUS) classifications and country of origin for trade flows between the impacted jurisdictions and the US.
2. EU member countries are Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, and Sweden.
5. See EY Global Tax Alert, US issues findings of Section 301 investigation regarding France’s Digital Services Tax; proposes imposition of tariffs, dated 4 December 2019.
For additional information with respect to this Alert, please contact the following:
Ernst & Young LLP (United States), Global Trade