July 15, 2022
OECD releases Progress Report on Amount A of Pillar One of BEPS 2.0 project: A detailed overview
On 11 July 2022, the Organisation for Economic Co-operation and Development (OECD) Secretariat released1 a Progress Report on Amount A of Pillar One (the Progress Report) in connection with the ongoing OECD/G20 project on Addressing the Tax Challenges Arising from the Digitalisation of the Economy (the so-called BEPS 2.0 project). The Progress Report is a consultation document released by the OECD Secretariat that covers many of the building blocks with respect to Amount A and is presented in the form of domestic model rules. As noted in the Progress Report, it does not yet include the rules on the administration of the new taxing right, including the tax certainty-related provisions.
Together with the Progress Report, the OECD released a Cover Note by the OECD/G20 Inclusive Framework on Base Erosion and Profit Shifting (BEPS) providing a revised schedule for the work on Amount A. The OECD also released a Frequently Asked Questions document on Amount A and a Fact Sheet providing an overview of the structure of the Amount A rules. In addition, the OECD Secretary-General Tax Report to G20 Finance Ministers and Central Bank Governors (G20 Tax Report) for their 15-16 July 2022 meeting was released at the same time.
The documents make clear that the Amount A rules will not come into force in 2023 as had been reflected in the timeline agreed by the Inclusive Framework in October 2021. The Inclusive Framework is seeking written comments from stakeholders on the overall design of the Amount A rules reflected in the Progress Report by 19 August 2022, with plans to review the input received and seek to stabilize the rules at its October 2022 meeting.
When the Amount A rules are stabilized, they will be translated into provisions for inclusion in a Multilateral Convention (MLC), to be signed and ratified by Inclusive Framework members. The agreed schedule reflects the expectation that this work will be completed so that a signing ceremony for the MLC can be held in the first half of 2023, with the objective of enabling it to enter into force in 2024 once a critical mass of jurisdictions has ratified it.
In January 2019, the OECD began the current project with the release of a Policy Note describing two pillars of work: Pillar One addressing the tax challenges of the digitalization of the economy and the allocation of taxing rights to market jurisdictions and Pillar Two addressing remaining concerns about potential BEPS activity and tax rate competition among countries.2 The project is being conducted through the OECD/G20 Inclusive Framework, in which 141 jurisdictions are participating currently. The OECD issued a consultation document on the project in February 20193 and hosted an initial public consultation in March 2019.4
Since then, the OECD has released a series of documents on the development of the two pillars, culminating with the release in October 2020 of detailed Blueprints on both Pillar One and Pillar Two.5 This was followed in July 2021 with the release of a high-level statement reflecting agreement of members of the OECD/G20 Inclusive Framework on key parameters with respect to the two pillars.6
In October 2021, a final political agreement7 was reached on key parameters of both pillars together with an implementation plan. Of the 141 participating jurisdictions, 137 members of the Inclusive Framework have joined the agreement reflected in the October 2021 Statement.
In December 2021, the OECD announced plans to release a series of Secretariat working documents in the first half of 2022 on the separate building blocks of Amount A in order to obtain stakeholder input. In this period, the following public consultations on Amount A were held:
The Progress Report
To reflect the technical work completed on Amount A thus far, the OECD Secretariat released the Progress Report on Amount A for public consultation requesting input on the design of the rules. The Progress Report includes a consolidated version of the operative provisions on Amount A, which was prepared by the OECD Secretariat and does not represent the consensus views of the Inclusive Framework. The document is framed in the form of domestic law provisions and is organized in seven Titles and ten Schedules (reflected in summary form in the Fact Sheet):
The Progress Report reflects modifications to the operative provisions that were included in several of the earlier working documents that were released by the OECD for public consultation. It does not yet include the rules on the administration of the new taxing right, including the tax certainty-related provisions, which are to be released in due course and before the Inclusive Framework meeting in October 2022. It also does not include other important details that remain under negotiation, including several aspects of the rule design for the Marketing and Distribution Profits Safe Harbor (MDSH) and the methods for elimination of double taxation with respect to Amount A, nor does it address the implications of withholding taxes on deductible payments made to in-scope multinational enterprises (MNEs). Stakeholders are invited to submit written comments on any aspect of the Amount A rules in the Progress Report no later than 19 August 2022.
The rules included in the Progress Report will serve as the substantive basis for negotiating the MLC through which Amount A will be implemented. In addition to the operative provisions of Amount A, the MLC will also contain provisions requiring the withdrawal of all existing Digital Services Taxes (DSTs) and relevant similar measures with respect to all companies, as well as a commitment not to enter into such measures in the future.
The Progress Report provides some new information regarding the scope of the commitment to not introduce DSTs or relevant similar measures in the future. The commitment applies to measures that meet all of the following criteria:
Also, the commitment would not include value-added taxes, transaction taxes, withholding taxes treated as covered taxes under tax treaties, or rules addressing abuse of the existing tax standards.
The October 2021 Statement also included the agreement of Inclusive Framework members that no newly enacted DSTs or other relevant similar measures are to be imposed on any company from 8 October 2021 and until the earlier of 31 December 2023 or the coming into force of the MLC. The Progress Report does not reflect any specific update to this commitment in light of the new timeline for entry into force of the Amount A rules.
Title 1 (Scope) and Schedules A-D
Title 1 provides rules on the criteria for a Group to be within the scope of Amount A (i.e., a Covered Group). In short, MNEs with revenues greater than €20 billion and with profitability greater than 10% will generally be in scope of Amount A, but with important exceptions and exclusions. Title 1 includes the specific tests for the in-scope determination (i.e., the revenue and the profitability tests) and the exclusions for revenues and profits of a Qualifying Extractive Group and from Regulated Financial Services. It also provides rules for a Disclosed Segment to be in scope of Amount A on a standalone basis, which were not included in earlier consultation documents. In addition, this title is complemented by Schedules A to D.
The specific tests for scope (i.e., the revenue and the profitability tests) are similar to the tests included in the draft rules in the consultation document released by the OECD in April. However, in addition to some minor differences in the names of the tests, there are new limitations on the prior period test and the average test under the profitability test such that those tests are only applicable when the Group was not a Covered Group in the two consecutive periods immediately preceding the Period. Further, the obligations under the Amount A rules only apply to the Group Entities of a Covered Group with respect to a Period beginning on or after the Commencement Date (i.e., the date on which the MLC comes into effect for a jurisdiction).
Where a Group is a Qualifying Extractives Group or the Group conducts qualifying Regulated Financial Services, the Group is not a Covered Group unless it meets the non-Extractives revenue test and the non-Extractives profitability test, or the non-Regulated Financial Services revenue test and the non-Regulated Financial Services profitability test, as the case may be. The obligations contained in Schedules B and C apply to Group Entities where a Qualifying Extractives Group or a Group that conducts Regulated Financial Services is a Covered Group. The obligations in these schedules have been significantly modified to take into account comments received on the consultation documents released earlier this year. The exclusions are generally applied using a predominance test that examines whether 75% of the revenues are related to activities excluded from Amount A. Where the 75% excluded revenue test is not met, the exclusion is applied by removing the revenues and associated costs that are related to activities that are not in scope of Amount A in order to recalculate the remaining revenue and profit of the MNE.
Schedule A includes supplementary provisions on the scope of Amount A, which are generally in line with what was included in the earlier consultation document but with some updates. The schedule includes an anti-abuse provision to prevent a Group that is held under certain types of entities from being artificially fragmented into multiple Groups in order to circumvent the scope rules, as well as special rules that modify the application of the prior period test and the average test in the case of business reorganizations. Further, the schedule includes specific rules for cases where two or more Groups are part of the same Dual-listed Arrangement or the same Stapled Structure. In such cases, the Group Entities of the Groups are treated as members of a single Group, the Groups are deemed to have as a single Ultimate Parent Entity (UPE) and the Consolidated Financial Statements of the single Group are the Consolidated Financial Statements prepared by the single UPE.
Schedule D contains the rules governing the application of the Amount A rules to a segment that is reported in an MNE's consolidated accounts (a Disclosed Segment) instead of to the MNE as a whole. These rules apply in exceptional circumstances where a Group meets the €20 billion revenue test but does not meet the 10% profitability test, and a Disclosed Segment of that Group meets both the revenue test and the profitability test. In situations where there is such a Disclosed Segment, the Amount A rules will apply to the Disclosed Segment as if it were an independent business from the rest of the Group.
Title 2 (Charge to tax)
Title 2 contains the charging provision (charge to tax) allowing a market jurisdiction to apply the new taxing rights to one or more Group Entities of a Covered Group for a Period.
As a general rule, the income taxable in a jurisdiction for a Period is the relevant portion of a Covered Group’s Adjusted Profit Before Tax associated with Revenues treated as arising in that jurisdiction pursuant to the revenue sourcing rules, and with respect to which the nexus test is met.
The relevant portion of the Covered Group’s Adjusted Profit Before Tax is determined by the two following steps:
This income is taxable as income of one or more Group Entities of the Covered Group for the Period identified. The Progress Report does not provide details on how the charging provisions would be embedded into domestic law. Instead, the drafting of the provisions of Title 2 includes a reference to the domestic law provisions on income tax. Finally, the provisions state that the income tax thus charged has no implications for the determination of any other direct or indirect tax, customs duty, or social security contribution in the relevant jurisdiction of any Group Entity of the same Covered Group.
Title 3 (Nexus and revenue sourcing rules) and Schedule E
Title 3 provides the threshold that must be met to establish a taxable nexus in a jurisdiction and determines when Revenues are treated as arising in a jurisdiction. In addition, this title is complemented by the supplementary provisions in Schedule E.
The nexus test remains broadly unchanged from the draft rules included in the February consultation document. The nexus test is met for a Period if the Revenues of a Covered Group treated as arising in a jurisdiction is equal to or greater than €1 million for jurisdictions with annual Gross Domestic Product (GDP) equal to or greater than €40 billion, and €250,000 for jurisdictions with annual GDP of less than €40 billion. The nexus test applies solely to determine whether a Group Entity of a Covered Group is liable to tax charged in accordance with the Amount A rules in a given jurisdiction. It has no other tax implications for any Group Entity of the Covered Group.
The Revenue sourcing rules determine when Revenues derived by a Covered Group are treated as arising in a jurisdiction for the purposes of the Amount A rules. Schedule E provides detailed rules for sourcing Revenues, based on reliable indicators or as a last alternative, allocation keys.
The revenue sourcing rules in the Progress report generally follow the draft rules included in the February consultation document, with some changes and new concepts. For example, the reference in the earlier consultation document that the Revenues must be sourced on a transaction-by-transaction basis has been removed and, generally, there is more flexibility in the indicators. Further, in addition to the Enumerated Reliable Indicators (i.e., which refers to an Indicator that is provided for in the relevant revenue sourcing rule or otherwise agreed by the Conference of the Parties, other than Another Reliable Indicator or an Alternative Reliable Indicator, and that meets other requirements) and Another Reliable Indicator (i.e., information, other than an Enumerated Reliable Indicator or an Alternative Reliable Indicator, that may be used by the Covered Group and that meets other requirements), the draft rules provide for an Alternative Reliable Indicator that may be used by the Covered Group.
An Alternative Reliable Indicator means information other than an Enumerated Reliable Indicator or Another Reliable Indicator that produces results that are consistent with the revenue sourcing rule for the category of Revenues and for which the Covered Group provides documentation to the Review Panel in the Advance Certainty Review explaining the reasons for using that information to identify where the Revenues arises instead of an Enumerated Indicator.
Except where an Allocation Key is applicable, Revenues must be sourced in a manner that accounts for differences among jurisdictions in the goods, content, property, products and services sold, licensed or otherwise alienated and provided by the Covered Group, their quantities and their prices. An Allocation Key generally may only be used where it is permitted in the relevant revenue sourcing rule, if the Covered Group demonstrates that it has taken Reasonable Steps to identify an Enumerated Reliable Indicator and has concluded that no Enumerated Reliable Indicator is available, and after the application of the Knock-out Rule. The Knock-out Rule is a requirement that the Covered Group must identify a Jurisdiction or a group of Jurisdictions where there is a legal, regulatory or commercial reason on the basis of which it can reasonably be concluded that Revenues did not arise in that jurisdiction or group of jurisdictions. Where any such jurisdictions are identified, that jurisdiction or group of jurisdictions must be excluded when applying the Allocation Key.
Further, Revenues must be sourced according to the category of Revenues earned, and if the Revenues fall under more than one category, then they must be sourced according to their predominant character. Revenues derived from Supplementary Transactions may be sourced in accordance with the revenue sourcing rule that applies to the Revenues that they supplement. Revenues that do not fit within any category of Revenues provided in the relevant provisions of Title 3 and Schedule E are sourced according to the most analogous category of Revenues.
The Covered Group must have an Internal Control Framework that evidences inter alia that the Indicators used by the Covered Group meet the definition of Reliable Indicators, and that any Allocation Keys used by the Covered Group are used in accordance with the rule for the relevant category of Revenues. Moreover, the relevant Systems must have been designed to appropriately classify Revenues and meet other features (e.g., accounting for differences in the goods, content, property, products and services sold, licensed, leased, or otherwise alienated and provided by the Covered Group in each Jurisdiction, their quantities, and their prices if applicable).
Title 4 (Determination and allocation of taxable profit) and Schedules F-H
Title 4 contains rules governing the determination and allocation of taxable profit to a Jurisdiction. This title is supplemented by Schedules F (Asset Fair Value or Impairment Adjustments), G (Acquired Equity Basis Adjustments), and H (Transferred Losses).
The rules in Title 4 of the Progress Report differ from the draft rules in the earlier consultation document on tax base in order to harmonize with the Global Anti-Base Erosion (GloBE) rules.
The Adjusted Profit Before Tax for a Period is the Financial Accounting Profit (or Loss) of a Covered Group after making the necessary adjustments and deducting any Net Losses that can be carried forward and deducted in chronological order. Only a limited number of book-to-tax adjustments are required, such as the deduction of certain items of income and the adding back of certain expenses.
Various items are excluded, including excluded dividends, excluded equity gain, asset fair value or impairment adjustments in accordance with Schedule F and acquired equity basis adjustments in accordance with Schedule G.
When determining Net Losses of a Covered Group for a Period, any losses transferred in an Eligible Business Combination or Eligible Division as detailed in Schedule H should be considered.
The portion of the Adjusted Profit Before Tax of a Covered Group that is taxable in a jurisdiction for a Period is equal to the amount of profit allocated under the profit allocation formula, reduced where applicable by the MDSH Adjustment, or zero, whichever is higher.
The profit allocation formula is: Q = (P-R × 10%) × 25% × L/R
The amount of profit of the Covered Group allocated to a jurisdiction for a Period (Q) is equal to the difference between the Adjusted Profit Before Tax of the Covered Group for a Period (P) and the Revenues of the Covered Group for a Period (R) times a profitability threshold of 10% times a reallocation percentage of 25% times the ratio of the Revenues arising in the jurisdiction (L) to the Revenues of the Covered Group (R).
The MDSH is primarily designed to address issues related to “double counting” that may occur, for example, if a market jurisdiction already has the ability to tax residual profits of an MNE in two ways: (i) once under existing profit allocation rules (typically transfer pricing); and (ii) again through Amount A allocations.
According to the Pillar One Blueprint released October 2020, the Inclusive Framework considered alternative approaches to mitigate this issue, that could particularly affect decentralized businesses. The October 2021 agreement references the development of an MDSH to cap the residual profits allocated to the market jurisdiction through Amount A.
Title 4 presents a possible mechanism for a MDSH, but the development of the rule is not as advanced as other elements of the Progress Report. In fact, key aspects of the MDSH design, including specific metrics to identify residual profits in a market country, the portion of the residual profits that will offset (and reduce) Amount A allocations, and the interaction of this adjustment with the elimination of the double taxation mechanism, are still under development.
Schedule F provides that a Covered Group is to determine gains and losses with respect to assets and liabilities that are subject to fair value or impairment accounting in the Consolidated Financial Statements, using the realization principle for purposes of computing Adjusted Profit Before Tax. Under this principle, (i) all gains or losses attributable to fair value or impairment accounting with respect to an asset or liability shall be excluded from the computation of Adjusted Profit Before Tax and (ii) the carrying value of an asset or liability for purposes of determining gain or loss shall be its carrying value at the date the asset was acquired or liability was incurred.
Schedule G provides that where a Covered Group acquires an Ownership Interest in another Entity such that the acquired Entity becomes a Group Entity, adjustments will be applied to determine Adjusted Profit Before Tax of the Covered Group.
For the determination of the Adjusted Profit Before Tax of a Group, a Covered Group may elect to recognize the historic losses incurred by another business that has since become a part of that Group, as a result of an Eligible Business Combination or an Eligible Division under the allocation rules provided in Schedule H. Such losses constitute part of the Net Losses of the Covered Group and are carried forward and deducted in chronological order. Specific rules and conditions apply to ensure that such losses transferred to the Group do not give rise to double counting of losses or artificial arrangements (so-called loss trafficking).
Title 5 (Elimination of double taxation with respect to Amount A) and Schedules I-J
Earlier OECD publications on Pillar One noted the need for a mechanism to eliminate double taxation arising from applying Amount A as an overlay to the existing profit allocation system.14 The provisions of Title 5 provide the initial design for this mechanism. The mechanism works on a quantitative and jurisdictional basis to identify the jurisdictions responsible for the elimination of double taxation.
The first step is the identification of the jurisdictions responsible for the elimination of double taxation. A key factor in this step is the Elimination Profit, which is similar to the concept of GloBE Income of the Pillar Two rules. Financial Accounting Profit or Loss is the starting point for the computation of the Elimination Profit and is subject to similar adjustments similar to those made to determine GloBE Income. For example, there is an exemption for qualifying dividends. These adjustments and other provisions that govern the Elimination Profit are outlined in Schedule I.
The second step is to determine the smallest group of jurisdictions for which the Elimination Profit equals at least 95% percent of the group’s total. Any jurisdictions which are not in this group but that do have an Elimination Profit equal to or greater than €50 million are added to the group as well. This group of jurisdictions is jointly referred to as the Specified Jurisdictions.
The mechanism for allocation of the obligation to eliminate double taxation aims to ensure that the obligation is borne by the jurisdictions in which the Covered Group earns its residual profits. The allocation essentially uses a waterfall approach to determine which of the Specified Jurisdictions are required to provide relief (Relieving Jurisdictions).
The Specified Jurisdictions are grouped into four Tiers depending on their profitability. Profitability is measured by reference to the Return on Depreciation and Payroll (RODP) in the jurisdiction relative to the overall profitability of the group. The RODP is calculated by dividing the Elimination Profit for a jurisdiction by qualifying depreciation and payroll costs. This calculation is outlined in Schedule J.
Tier 1 includes the most profitable jurisdictions with RODP of over 1500% of the group’s overall RODP. Tier 1 jurisdictions are the first to eliminate double taxation through a reduction of taxable profits. The jurisdiction with the highest RODP in Tier 1 reduces its taxable profits until its RODP is equal to the Tier 1 jurisdiction with the second highest RODP. Once the first jurisdiction is on the same RODP as the second jurisdiction the jurisdictions jointly reduce their RODP until they are at the level of the third jurisdiction, which then joins in the reduction. This continues until all of the Group’s Amount A has been taken into account as a reduction.
If double taxation is not fully relieved from Tier 1 profits ,Tier 2 jurisdictions (RODP >150%) are required to relieve double taxation in proportion to their percentage of the total MNE's profits within that Tier until either the obligation to relieve double taxation with respect to the Amount A profit of the MNE has been fully allocated, or the profits within Tier 2 are exhausted. The same applies for Tiers 3A (RODP >40%) and Tier 3B (RODP >10%). Jurisdictions with no residual profit within any of these tiers will not be required to relieve double taxation arising from Amount A.
The next step is to determine which Entities are entitled to relief and how relief is provided. The Progress Report indicates that the approach for identifying the Entities entitled to relief will be discussed in a separate document. It also notes that relief could be provided through the Exemption method or the Credit method but does not provide further details.
Title 6 (Administration)
The rules on the streamlined administration process including the tax certainty processes that will form a part of Amount A rules, will be released in a separate report before the Inclusive Framework meeting in October 2022.
The public consultation on the Progress Report is open for stakeholder input until 19 August 2022 and all written comments received will be made publicly available. Following this, the Inclusive Framework will meet in October 2022 with the aim of stabilizing the rules. The Cover Note states that a signing ceremony of the MLC for the implementation of Amount A is expected to be held in 2023 with the objective of enabling it to enter into force in 2024 upon ratification by a critical mass of countries. According to the Cover Note, a critical mass of countries includes the residence jurisdictions of the UPEs of a substantial majority of the in-scope companies whose profits will be subject to the Amount A taxing right, as well as the key additional jurisdictions that will be allocated the obligation to eliminate double taxation that would otherwise arise as a result of the Amount A tax.
The Cover Note also indicates that good progress is being made on the work on Amount B, with the expectation that Amount B will be delivered by year-end.
The Progress Report and the accompanying Cover Note provide significant new information with respect to the possible design of Pillar One Amount A and reflect a new timeline for its planned implementation.
In addition, the rules on the administration of the new taxing right, including the tax certainty-related provisions, that the OECD expects to release before the Inclusive Framework meeting in October 2022 will provide important additional information relevant to the operation of the rules.
Businesses may want to consider taking the opportunity to engage with the OECD and country policymakers through the consultation process. It also will be important to continue to monitor developments with respect to both Pillar One and Pillar Two closely over the coming months.
For additional information with respect to this Alert, please contact the following:
Ernst & Young Belastingadviseurs LLP, Rotterdam
Ernst & Young Belastingadviseurs LLP, Amsterdam
Ernst & Young Limited (New Zealand), Auckland
Ernst & Young S.A., Lisbon
Ernst & Young LLP (United States), McLean
Ernst & Young LLP (United States), New York
Ernst & Young LLP (United States), Washington, DC