Размышления женщины о геополитике. Татьяна Александровна Югай

erosion and profit shifting» (BEPS) and focused its efforts on creating legal framework to deal with this problem. The OECD report «Addressing Base Erosion and Profit Shifting» states, «Base erosion constitutes a serious risk to tax revenues, tax sovereignty and tax fairness for OECD member countries and non-members alike. While there are many ways in which domestic tax bases can be eroded, a significant source of base erosion is profit shifting»59. The report analyzes the main causes of BEPS and identifies «six key pressure areas: 1) hybrids and mismatches which generate arbitrage opportunities; 2) the residence-source tax balance, in the context in particular of the digital economy; 3) intragroup financing, with companies in high-tax countries being loaded with debt; 4) transfer pricing issues, such as the treatment of group synergies, location savings; 5) the effectiveness of anti-avoidance rules, which are often watered down because of heavy lobbying and competitive pressure and 6) the existence of preferential regimes»60.

      The BEPS package developed by the OECD upon the request of G20 leaders covers three unifying tasks:

      – to align rules on taxation with the location of economic activity and value creation;

      – to improve coherence between domestic tax systems and international rules;

      – to promote transparency.

      The BEPS package was introduced in Kyoto, Japan, in June 2016. The BEPS Project delivers solutions for governments to close the gaps in existing international rules that allow corporate profits to «disappear» or be artificially shifted to low or no tax environments, where companies have little or no economic activity61.

      In line with the OECD BEPS package, the European Commission adopted the Action Plan (2015) for fair and efficient corporate taxation in the EU, which also deals with issues related to harmful tax practices. On 28 January 2016, the European Commission presented the Anti-Tax Avoidance Package and the Council adopted the Anti-Tax Avoidance Directive on 12 July 2016. The Directive proposes six legally binding anti-abuse measures to counteract some of the most common types of aggressive tax planning, which all Member States should apply against common forms of aggressive tax planning.

      Key features of the Anti-Tax Avoidance Package include:

      – legally-binding measures to block the most common methods used by companies to avoid paying tax;

      – a recommendation to Member States on how to prevent tax treaty abuse;

      – a proposal for Member States to share tax-related information on multinationals operating in the EU;

      – actions to promote tax good governance internationally;

      – a new EU process for listing third countries that refuse to play fair62.

      Political agreement on the Anti-Tax Avoidance Directive (ATAD) was reached by the EU Member States at the meeting of Economic and Financial Affairs (ECOFIN) Council on 17 June 2016. The agreement requires all Member States to enact laws that largely implement G20/OECD base erosion and profit shifting (BEPS) outcomes on interest limitation rules, hybrid mismatches and controlled foreign companies (CFCs) as well as additional measures on exit taxation and a general anti-abuse rule (GAAR). Member States were generally required to adopt these ATAD measures in their domestic law by 31 December 2018.

      Promoting transparency

      Transparency is crucial to identifying aggressive tax planning practices by large companies and to ensuring fair tax competition. Measures to combat BEPS would be inefficient without resolving the problem of high offshore secrecy. «The veil of secrecy can too easily be used to hide the beneficial owners of legal arrangements from tax administrations and other law enforcement agencies»63. The latest standard for identifying beneficial owners was developed by the Financial Action Task Force in 2012. The FATF published the new Guidance on Transparency and Beneficial Ownership in 2014.

      The FATF gives the following definition: «Beneficial owner refers to the natural person (s) who ultimately owns or controls a customer and/or the natural person on whose behalf a transaction is being conducted. It also includes those persons who exercise ultimate effective control over a legal person or arrangement». Further on, the Guidance gives a more detailed interpretation: «an essential element of the FATF definition of beneficial owner is that it extends beyond legal ownership and control to consider the notion of ultimate (actual) ownership and control. In other words, the FATF definition focuses on the natural (not legal) persons who actually own and take advantage of capital or assets of the legal person; as well as on those who really exert effective control over it (whether or not they occupy formal positions within that legal person), rather than just the (natural or legal) persons who are legally (on paper) entitled to do so»64.

      The FATF explains that «legal and beneficial ownership information can assist law enforcement and other competent authorities by identifying those natural persons who may be responsible for the underlying activity of concern, or who may have relevant information to further an investigation. This allows the authorities to „follow the money“ in financial investigations involving suspect accounts/assets held by corporate vehicles. In particular, beneficial ownership information can also help locate a given person’s assets within a jurisdiction»65.

      The FATF Recommendations provide measures to address the transparency and beneficial ownership of legal persons (Recommendation 24) and legal arrangements (Recommendations 25). Countries should take measures to prevent the misuse of legal persons and arrangements from being misused for criminal purposes, including by:

      – Assessing the risks associated with legal persons and legal arrangements;

      – Making legal persons and legal arrangements sufficiently transparent, and

      – Ensuring that accurate and up-to-date basic and beneficial ownership information is available to competent authorities in a timely fashion66.

      Recently, the UNCTAD carried out a comprehensive study of beneficial ownership dedicating its annual World Investment Report 2016 to the problem of investor nationality and policy challenges. The Report states, «More than 40 per cent of foreign affiliates worldwide have multiple «passports». These affiliates are part of complex ownership chains with multiple cross-border links involving on average three jurisdictions. The nationality of investors and owners of foreign affiliates is becoming increasingly blurred». According to the UNCTAD, «Multiple passport affiliates» are the result of indirect foreign ownership, transit investment through third countries, and round-tripping. About 30 per cent of foreign affiliates are indirectly foreign owned through a domestic entity; more than 10 per cent are owned through an intermediate entity in a third country; about 1 per cent are ultimately owned by a domestic entity. These types of affiliates are much more common in the largest MNEs: 60 per cent of their foreign affiliates have multiple cross-border ownership links to the parent company. The larger the MNEs, the greater is the complexity of their internal ownership structures. The top 100 MNEs in UNCTAD’s Transnationality Index have on average more than 500 affiliates each, across more than 50 countries. They have 7 hierarchical levels in their ownership structure (i.e. ownership links to affiliates could potentially cross 6 borders), they have about 20 holding companies owning affiliates across multiple jurisdictions, and they have almost 70 entities in offshore investment hubs»67.

      The UNCTAD presumes that the phenomenon of multiple cross-border ownership creates political challenges, particularly, on the eve of future trade and investment mega deals. The report warns that «Policymakers should be aware of the de facto multilateralizing effect of complex ownership on IIAs [international investment agreements].

59

OECD (2013) Addressing Base Erosion and Profit Shifting, Paris: OECD Publishing, p.6.

60

Ibid, p.9.

61

OECD (2016) First meeting of the new inclusive framework to tackle Base Erosion and Profit Shifting marks a new era in international tax co-operation. URL: http://www.oecd.org/tax/first-meeting-of-the-new-inclusive-framework- to-tackle-base-erosion-and-profit-shifting-marks-a-new-era-in-international-tax-co-operation.htm.

62

European Commission (2016) Fair Taxation: Commission presents new measures against corporate tax Avoidance URL: http://europa.eu/rapid/press-release_IP-16-159_en.htm.

63

OECD (2016) OECD Secretary-General Report to G20 Finance Ministers. Update on Tax Transparency, Washington D.C., United States, April 2016, Paris: OECD Publishing, p.10.

64

FATF (2014) FATF Guidance. Transparency and Beneficial Ownership, Paris: FATF/OECD, p.8.

65

Ibid, p.3.

66

Ibid, p.46.

67

UNCTAD (2016) World Investment Report 2016. Investor Nationality: Policy Challenges, Geneva: UNCTAD, pp. xii, xiii.