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Dominik Birrer
Partner Tax, PwC Switzerland
Rolf Röllin
Director - Corporate Tax, PwC Switzerland
Pascal Buehler
Partner, PwC Switzerland
Reto Inauen
Director Tax Accounting & International Tax Services, PwC Switzerland
Christa Elsaesser
Director International Tax, PwC Switzerland
On 14 March 2022, the OECD/G20 Inclusive Framework (IF) published the Commentary to the GloBE Model Rules (‘Commentary’) as well as some GloBE (Pillar Two) examples. This is the next biggest milestone towards the implementation of the global minimum taxation rules that are designed to ensure large multinational enterprises (MNEs) pay a minimum level of tax of 15% on the income arising in each jurisdiction where they operate.
Overview
The Commentary shall ensure a consistent and common interpretation of the previously published GloBE Model Rules with the aim of facilitating coordinated outcomes for both the tax authorities as well as MNE groups. As such, it explains the intended outcomes under the GloBE Model Rules and clarifies the meaning of certain provisions.
The document with the examples illustrates the application of some of the GloBE Rules. The document has an illustrative purpose only and the examples do not form part of the Commentary as such. It is likely that additional examples might be developed and published in the future to illustrate how some of the GloBE Model Rules shall work. This would be done as part of the Implementation Framework through specific Administrative Guidance.
With the publication of the Commentary and the examples, the next important phase of this OECD Pillar Two project is being approached. The IF will further develop an Implementation Framework to support local tax authorities in the implementation and administration of the GloBE Rules. This process also involves collecting input from the various stakeholders as part of a public consultation process. The focus of this public consultation is on putting in place mechanisms that will ensure that tax authorities and MNEs can apply the GloBE Rules in a consistent way while minimising compliance costs. The consultation period will end on 11 April 2022, that will then be followed by a virtually held public consultation meeting at the end of April 2022.
In the following, you will find a summary of the most relevant aspect described by each of the chapters of the Commentary:
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1. Scope
A) Scope of GloBE rules
- GloBE Rules will apply to CEs of an MNE Group with consolidated revenues of at least EUR 750m (same monetary threshold as for CbCR) in at least two of the four prior Fiscal Years (two-out-of-four-years test in order to reduce volatility in the application of the rules).
- Article 1.1 is modified by Article 6.1 which sets out further rules clarifying the application of the consolidated revenue threshold in the case of mergers and de-mergers such as:
- Where an Entity is brought under common control with another Entity to form a Group, the consolidated revenue threshold for a prior year is met if the sum of the revenues in the financial statements of each Entity is equal or greater than EUR 750m.
- In those cases where the Entities forming the Group were recently created such that there are no financial statements for the Group in prior years, then the third year is the first year in which the GloBE Rules can apply, since, at that point, there will be two prior years to test.
- The revenue threshold takes into account the consolidated revenue as reported in the Consolidated Financial Statements of the Group prepared in accordance with an Acceptable Financial Accounting Standard (no reduction by the amount attributable to minority interest holders).
- Excluded Entity will qualify as a Group Entity for purposes of determining the revenue threshold to the extent its income is consolidated with the rest of the Group.
- In cases where one or more of the immediately preceding Fiscal Years use a period other than 12 months, the EUR 750m revenue threshold has to be recalculated on a proportional basis.
B) MNE Group and Group
- Key elements of definition:
a. Entities form a Group when they are under common control such that their income is (or would be) included in the same Consolidated Financial Statements.
b. A Group will be an MNE Group if it has one or more Entities or PEs located in a jurisdiction other than the UPE jurisdiction.
C) Constituent Entity
- = Group Entities that are subject to the GloBE Rules.
- An Entity with one or more PEs is divided into separate Constituent Entities.
D) Ultimate Parent Entity
- Two types of UPEs: 1) UPE of a Group comprised of at least two Entities (consolidation test, including deemed consolidation test), 2) UPE of a Group that is made up of a Main Entity and one or more PEs (main entity is UPE).
E) Excluded Entity
- 3 practical effects: 1) IIR and UTPR do not apply, 2) GloBE attributes are removed from GloBE computations, 3) no administrative obligations under GloBE.
- Five-Year Election to apply GloBE Rules to an Entity that qualifies as an Excluded Entity under Article 1.5.2 (i.e. election is only possible for an entity that is owned by an Excluded Entity).
2. Charging Provisions
- Confirming priority of IIR over UTPR and top-down cascading approach for UPEs in jurisdictions without IIR, to next level of intermediate parent in jurisdiction of IIR.
- Special situation in case LTCE held by PE: Attribution of LTCE to Main Entity (PEs can’t be Parents).
- Permission for jurisdictions to apply IIR also domestically (instead of the QDMTT), which is relevant for EU to avoid discrimination, but IIR at superior UPE level still prevails.
- Parent Inclusion ratio to be calculated by subtracting the amount of GloBE Income allocable to Ownership Interest held by other owners from total GloBE Income and dividing difference by the total GloBE Income of the Entity.
- Detailed explanations regarding calculation mechanism of GloBE Income attributable to other owners which are easier to digest with examples in the Annex.
- Explanations concerning more complex situations where a group has CEs that are indirectly held by Intermediate Parents and third-party minority owners:
a. Here different outcomes if UPE in jurisdiction with IIR:
-> Top-up tax of LTCEs limited to UPEs Allocable Share of Top-up Tax due in respect of each LTCE.
-> Special treatment for POPEs (= split-ownership structures where LTCEs have more than 20% third party minority interest holders): Lower tier POPE jurisdiction has priority to apply IIR to extent of its Allocable Share (exception to IIR top-down approach).
b. If UPE in jurisdiction without IIR:
-> IIR Top-up tax with Intermediate Parent(s) that partially own LTCEs reduces total Top-up Tax Amount and hence leaves a Top-up Tax delta (including the one attributable to third party minority owners) which then is subject to reallocation among all UTPR countries. Hence total Top-up Tax due in respect of LTCEs can be greater than in scenario a.
- Definition of UTPR Top-up Tax allocation keys (50% Number of Employees and 50% Net Book Value of Tangible Assets) correspond with CbCR data definitions.
- In case there is a loss in a UTPR Jurisdiction, its percentage share in the overall UTPR re-allocation key will (temporarily) be set to zero.
3. Computation of GloBE Income or Loss
- The GloBE Income or Loss for each CE is defined as being the respective net income based on financial accounting rules, which is adjusted for certain defined items. The financial accounting net income is based on the accounting standard used in preparing the consolidated financial statements of the UPE (e.g. US GAAP, IFRS, Swiss GAAP FER).
- The starting point for calculating GloBE Income or Loss, is the bottom-line net income or loss of the CE before making any consolidation adjustments that would eliminate income or expense attributable to intra-group transactions. The net income or loss is adjusted to align the computation of the taxable income between different jurisdictions. The commentary includes explanations on the following adjustments:
- Net Taxes Expense
- Excluded Dividends;
- Excluded Equity Gain or Loss;
- Included Revaluation Method Gain or Loss;
- Gain or loss from disposition of assets and liabilities excluded under group restructurings;
- Asymmetric Foreign Currency Gains or Losses;
- Policy Disallowed Expenses;
- Prior Period Errors and Changes in Accounting Principles; and
- Accrued Pension Expense.
- Financial Accounts:
- Purchase Accounting: Adjustments to income or expense attributable to purchase accounting for an acquired business that are reflected in the MNE Group’s consolidated accounts, rather than a CE’s separate accounts, are not taken into account in the computation of a CE’s Financial Accounting Net Income or Loss.
- Group Entries: Items of income and expense, other than those attributable to purchase accounting, that are reflected in the consolidated accounts, may be taken into account in computing the CE’s GloBE Income or Loss only to the extent they can be reliably and consistently traced to the relevant Entity (e.g. stock-based compensation).
- OCI: Items reflected in OCI are excluded from the computation of GloBE Income or Loss (except Revaluation Method Gain or Loss).
- Arm’s length Requirement: Any cross-border transactions between group entities must be at arm’s length. If they are not, the financial accounting net income of the involved group entities is to be adjusted accordingly.
- Elections: Model Rules allow several elections (5 years), which are to be analysed, e.g.
- Stock-based compensation: Use the amount of stock-based compensation allowed as a deduction in the computation of a CE’s taxable income in place of the amount expensed in its financial accounts.
- Realisation method instead of fair value accounting: For assets and liabilities that are subject to FV or impairment accounting, a CE Entity may elect to determine gains and losses using the realisation principle (realisation of gain/loss at time of disposal).
- Election to spread capital gains over five years: Election that permits an MNE Group to spread the effect of gains and losses from the sale of local tangible assets (immovable property) over a period of up to five years to mitigate the effect of recognising the entire gain in a single year.
- Election to consolidate transactions in same jurisdiction: UPE may elect to eliminate income, expense, gains, and losses from transactions between CE that are located, and included in a tax consolidation group, in the same jurisdiction for purposes of computing each such CE’s Net GloBE Income or Loss.
- Permanent establishments:
- The financial accounting net income of a permanent establishment is to be established based on the respective (actual or deemed) separate financial accounts. If a permanent establishment records financial accounting net income, this will not impact the GloBE Income / Loss of its head office. In contrast, if the permanent establishment records a financial accounting net loss, such loss shall be treated as an expense of the head office if losses of permanent establishments are actually treated as an expense in the computation of the domestic taxable income of the head office.
- Vice versa, if the permanent establishment would record financial accounting net income in future periods, this would need to be taken into account at the level of the head office up to the loss that impacted previous GloBE calculations. This rule applies to the full extent of the amount of loss treated as an expense in the computation of the head office taxable income or loss. Thus, even if the loss became part of a loss carry-forward in the head office’s jurisdiction that expired before it was used in full, the permanent establishment’s income to the extent of that loss is treated as GloBE Income of the head office.
4. Computation of Adjusted Covered Taxes
- Following items are discussed in this chapter:
A) Additions and reductions to covered taxes and definition of covered taxes;
B) Allocation between CEs;
C) Temporary differences;
D) GloBE Loss election;
E) Post-filing adjustments and tax rate changes.
A) Adjusted Covered Taxes
- There are no surprises to the additions (e.g. Swiss capital tax, only paid amount related to an UTP to the extent that was previously treated as reduction) and reductions (e.g. taxes related to income excluded from GloBE Income) to covered taxes.
- Taxes are unrequited in the sense that any benefits provided by government to the taxpayer are not in proportion to their payments. Further, Top-up taxes are excluded from the definition of Covered Taxes.
B) Allocation between CEs
- Tax allocation provisions follow the same pattern as the income allocation provisions.
- The Covered Taxes arising in the main entity in respect of a PE income can be computed in a three-step process and then allocated to the PE (same approach for CFCs).
C) Temporary Differences
- Deferred tax expense for the Fiscal Year is comprised of the net movement in DTAs and liabilities between the beginning and end of the Fiscal Year. When a DTA or DTL reverses it will reverse at the same amount and rate at which it has been recorded. In order to use the accounts to adjust for timing differences under the GloBE Rules, the DTAs and DTLs must be recast with reference to the Minimum Rate to the extent they have been recorded at a rate in excess of the Minimum Rate.
- The recapture exception accruals under para. 4.4.5. also applies for tangible assets that has been leased.
D) GloBE Loss election
- When this has been elected in applies in lieu of Article 4.4. modified deferred tax accounting rules. It primarily applies as a simplification in jurisdictions which do not impose a corporate income tax or impose one at a very low rate.
E) Post-filing adjustments and tax rate changes
- When the correction of an error in the determination of a liability for Taxes in a particular jurisdiction results in a material decrease in the tax liability, the MNE Group must do two things to properly apply Article 3.2.1(h) and Article 4.6.1.
- First, the MNE Group must determine if the error in the tax computation was due to an error in the computation of taxable income and whether there was a corresponding error in the computation of the relevant CE’s Financial Accounting Income. If so, both the Taxes and the GloBE Income for the prior year are re-determined.
- Second, the ETR and Top-up Tax for the prior year must be re-determined based on the re-determined Taxes and GloBE Income (if also adjusted) in order to determine if there is any Additional Top-up Tax for the jurisdiction pursuant to Article 5.4.1. If that re-determination results in Additional Top-up Tax, such tax is included in the jurisdictional Top-up Tax computation pursuant to Article 5.2 in the Fiscal Year of the re-determination.
5. Computation of Effective Tax Rate and Top-up Tax
- Following items are being covered:
A) Computational rules for determining the ETR of jurisdictions in which the MNE operates and for determining the Top-up Tax for a Low-Tax Jurisdiction.
B) Rules for determining the amount of income that is excluded from the GloBE Rules by virtue of the Substance-based Income Exclusion.
C) Additional Current Top-up Tax.
D) De Minimis Exclusion.
A) ETR and Top-up Tax Calculation
- The ETR for a jurisdiction is equal to the sum of the Adjusted Covered Taxes of each Constituent Entity located in the jurisdiction for the Fiscal Year divided by the Net GloBE Income of the jurisdiction.
- Basically, the ETR and Top-up Tax Calculation per Jurisdiction is based on the following formula:
- Where: (a) The Top-up Tax Percentage is percentage point difference between the ETR and the Minimum Tax; (b) The Excess Profit is the Excess Profit determined after applying the Substance-based carve out; (c) The Additional Current Top-up Tax and (d) the (Qualified) Domestic Top-up Tax is the amount payable under a Qualified
B) Substance-based Income Exclusion
- The Substance-based carve out based on payroll and tangible assets is designed to exclude a fixed return for substantive activities within a jurisdiction from the application of the GloBE Rules to focus GloBE Rules on “excess income”, such as intangible-related income, which is most susceptible to BEPS risks.
- The Substance-based Income Exclusion is comprised of two components – the payroll carve-out and the tangible asset carve-out
C) Additional Current Top-up Tax
- Certain provisions of the GloBE Rules, ETR Adjustment Articles, require or permit a retroactive recalculation of the ETR and Top-up Tax for previous Fiscal Years taking into account an adjustment to the Adjusted Covered Taxes or the Net GloBE Income (or both) for the year.
- To avoid the complexity and administrative burden of requiring an amended GloBE Information Return and additional separate payment of Top-up Tax, the Additional Top-Up Tax is instead charged to the Fiscal Year in which the recalculation was performed.
D) De Minimis Exclusion
- The Top-up Tax for the Constituent Entities located in a jurisdiction shall be deemed to be zero for a given Fiscal Year when all Constituent Entities located in the same jurisdiction meet the requirements for the de minimis exclusion.
- The first condition requires the Average GloBE Revenue of the MNE Group in that jurisdiction to be less than EUR 10 million, while the second condition requires the Average GloBE Income or Loss of the MNE Group in that jurisdiction to be a loss or less than EUR 1 million
- The Filing Constituent Entity shall elect and provide the relevant information in its GloBE Information Return showing that the required conditions are met to benefit from the exclusion. This election is an annual election.
6. Corporate Restructurings and Holding Structures
- This chapter contains special rules with respect to corporate restructurings and discusses specific aspects of JV investments and Multi-Parented MNE Groups.
- It discusses aspects relating to the EUR 750 million revenue threshold in case of mergers and demergers.
- Mergers: The revenue is deemed to be the sum of the revenue of each of the two group’s consolidated revenue; without adjustments for transactions that may have occurred between the two groups.
- Demerger: Each group resulting from the demerger of an in-scope MNE Group, that met the revenue threshold after the demerger (i.e. in the current year and not considering previous years) remain subject to the GloBE Rules.
- It then discusses specific allocation rules in case of acquisitions or dispositions of Constituent Entities:
- If any portion for the acquired entities assets, liabilities, income, expenses and cash flows are included in the UPE’s Consolidated Financial Statements in the acquisition year, then it will be treated as a member of the MNE Group for that year.
- For transactions happening during a Fiscal Year, likely this will be the case for both involved groups. Hence, more detailed rules for an equitable apportioning of tax outcomes and tax attributes are provided in Article 6.2.1.
- An exception applies in case a share deal is treated as an acquisition and disposition of the underlying assts and liabilities for local tax purposes and where a Covered Tax is levied on the seller for a deemed disposition of such assets/liabilities as a result.
- With respect to transfers of assets and liabilities, a distinction is made between ordinary acquisitions or dispositions as well as an acquisition or disposition in connection with a GloBE Reorganisation:
- Ordinary: The disposing Entity must include a gain or loss from the disposition of assets and liabilities in its computation of GloBE Income or Loss and the acquiring Entity must use the adjusted carrying value as determined under the financial accounting standard it uses.
- GloBE Reorganisation: The GloBE Rules are aligned with the tax deferral treatment of reorganisations under domestic tax provisions (for purely domestic as well as cross-border transactions).
- With respect to Joint Ventures, a practical issue results because generally both JV-Partner would account for their part of the ownership using the equity method. This would exclude the JV-Investment from the scope of the GloBE Rules due to the definition of a Constituent Entity under Article 1.3. Article 6.4.1 brings a JV and its subsidiaries into scope of the GloBE Rules but only with respect to the UPE’s share of the JV and its subsidiaries.
- Last but not least, the commentary to chapter 6.5 of the Model Rules details out more specifically what rules apply with respect to Stapled Structures (where 50% or more of the Ownership Interests in the UPEs are “stapled” together as if they were the Ownership Interest of a single Entity) and Dual-listed Arrangements (where two or more UPEs combine their businesses through contract rather than bringing them under the ownership and control of a single entity).
7. Tax neutrality and distribution regimes
- GloBE Income of a Tax Transparent Entity that is an UPE is allocated to itself by Income allocation rules in Chapter 3. As the holders of a Tax Transparent UPE are not Group Entities, there is a mismatch of taxes paid by owners of the UPE and the respective GloBE Income of the UPE
- This chapter addresses the UPE’s resulting exposure to Top-up Tax through a reduction of its GloBE income corresponding to the share of its income that is subject to tax at or above the minimum rate in the hands of its owners either because
- the UPE is a Flow-Through Entity (tax transparent) or
- subject to a Deductible Dividend Regime (distributions are deductible at the level of the UPE and taxable at the level of the UPE holder)
- Further this chapter addresses the consideration of distribution tax regimes that generally imposes income tax on a corporation when the corporation’s income is distributed or deemed to be distributed to its shareholders, rather than when it is earned. The commentary details the mechanism to mitigate differences between the time the income accrues in the financial accounts and the time it is subject to distribution tax through application of a four-year period that distributions need to be made within.
- Chapter 7 addresses investment structures controlled by an MNE Group. Investment Entities are defined as regulated Investment Funds or Real Estate Investment Vehicles that have at least some unrelated investors. As an exception, investment structures established in relation to liabilities under insurance or annuity contracts and exclusively held by Group entities that are regulated insurance companies qualify as Insurance Investment Entities.
- The income of controlled Investment Entities and Insurance Investment Entities is often not subject to tax at the entity level. Chapter 7 introduces a separate ETR and Top-up Tax calculation on a standalone basis (as opposed to jurisdictional blending) to prevent an MNE Group from blending this low-taxed income with income of other Constituent Entities.
- This may create a mismatch between GloBE Income and the related Covered Taxes and result in Top-up taxes. Exceptions from separate ETR calculation and thus the alignment of GloBE Income and related Covered Taxes depend on the local tax treatment of the interest in the controlled Investment Entities and Insurance Investment Entities on the investor level:
- If local tax law treats Investment Entity or Insurance Investment Entity as Tax Transparent, it is not subject to separate ETR calculation.
- Tax Transparency Election is available for interests in controlled Investment Entities and Insurance Investment Entities if the value changes in the ownership interest (or its underlying investments) are subject to tax >15% on a mark-to-market basis at investor level.
- Taxable Distribution Method Election is available for interests in controlled Investment Entities, if MNE Group can support that the GloBE Income is fully distributed within a four-year period and taxed at >15% at investor level.
- Investment structures exclusively held by Group entities other than Insurance Investment Entities are included in the ordinary jurisdictional blending and Flow-Through Entity rules.
8. Administration
- Following topics are being discussed:
A) Filing obligation
B) Safe Harbours
C) Administrative Guidance
A) Filing Obligation
- Each Constituent Entity is obliged to file a GloBE Information Return with the tax administration of the jurisdiction where it is located.
- A Constituent Entity is discharged from this obligation when the UPE or a Designated Filing Entity files the GloBE Information Return with the tax administration of the jurisdiction where it is located and the Competent Authority of that jurisdiction has a bilateral or multilateral agreement or arrangement in effect to automatically exchange the GloBE Information Return with the Competent Authority of the jurisdiction of the Constituent Entity.
- The GloBE Information Return shall be filed in a standard template that is developed in accordance with the GloBE Implementation Framework. As such, many details around the GloBE Information Return are yet to be developed and in some areas there is expected to be room for separate local rules.
- accordance with the GloBE Implementation Framework MNE Groups are provided with up to 15 months after the last day of the Reporting Fiscal Year to file the GloBE Information Return and the notifications with the relevant tax administrations (18 months in the first year).
B) Safe Harbours
- The GloBE Implementation Framework will seek to explore the development of GloBE Safe Harbours.
- At the election of the Filing Constituent Entity GloBE Safe Harbours would allow an MNE Group to avoid the ETR and Top-up Tax calculation in respect of its operations that are likely to be taxable at or above the Minimum Rate when the MNE Group can demonstrate that those Constituent Entities meet the requirements of the GloBE Safe Harbour.
- There are rules that provide for a coordinated and balanced framework under which another tax administration could challenge a taxpayer’s election to apply a GloBE Safe Harbour in circumstances that may have materially affected the eligibility of the MNE Group for the relevant GloBE Safe Harbour.
- These conditions would be designed to limit compliance costs for MNE Groups as well as administrative burden for tax authorities and incorporate thresholds that ensure only those parts of the MNE Group’s operations that are nearly certain to have jurisdictional ETRs above the minimum rate would be eligible for the GloBE Safe Harbour.
C) Administrative Guidance
- It is contemplated that further guidance on the interpretation or application of the GloBE Rules may be agreed and published by the Inclusive Framework. If so, it shall be ensured that when such guidance is issued, it is applied in a co-ordinated way.
9. Transition rules
- Transitional rules exist in relation to:
A) Tax Attributes;
B) the Substance-based Income Exclusion;
C) the exclusion from the UTPR of MNE Groups in the initial phase of their international activity and
D) for Filing Obligations
A) Tax Attributes
- The transition rules allow existing deferred tax accounting attributes, including deferred tax assets resulting from prior year losses, to be used in the calculation of the GloBE ETR to prevent distortions upon entry into the GloBE regime of a Constituent Entity of a MNE Group.
- Of particular concern are also timing differences that result in the acceleration of income for tax purposes and hence taxes paid prior to an MNE Group being subject to the GloBE Rules, which then reverse after the MNE Group is subject to the GloBE Rules.
- These attributes basically include losses that have not been recognised due to an accounting recognition adjustment or valuation allowance.
- Some articles provide a limitation by setting out rules with respect to how certain attributes are taken into account in Fiscal Years to which the GloBE Rules apply of these attributes have been created upon a transaction after 30 November 2021 and before the Transition Year.
B) Substance-based Income Exclusion
- For the purpose of applying the payroll carve-out as well as the tangible asset carve out, percentages for Fiscal Years that begin in the transition period of ten calendar years beginning with 2023.
C) Exclusion from the UTPR
- Transitional exclusion from the UTPR for MNE Groups that are in the initial phase of their international activity is given if certain conditions are met for a period of up to five years after the MNE Group has come within the scope of the GloBE Rules.
D) Filing Obligations
- The filing and notification obligations must be fulfilled within 18 months, rather than the normal 15 months, after the end of the Reporting Fiscal Year that is the Transition Year.
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