Pillar 1A will reallocate super profits earned by in-scope groups utilising an allocation key.
The calculation iwill include the following steps:
Simplifications will apply. For larger jurisdictions, a group will only be required to apply the reallocation if the group has more than Euro 1m of revenues in the jurisdiction. For smaller jurisdictions this limit will be applied at Euro 250k.
The way in which profits are calculated for Pillar 1A will be governed by new rules being developed by the OECD so as to ensure consistency accross jurisdictions and multinational enterprises. In addition, detailed source rules will be stipulated by the OECD.
It is important to remember that most multinationals will not fall into the scope of Pillar 1A. Groups are exempt from Pillar 1A if they:
Groups will be able to file their Pillar 1A calculations centrally in one location. It is likely that this will be the same jurisdiction in which the impacted groups currently file their CBCR.
Pillar 1B will introduce minimum profit margins (measured on EBIT level) for entities engaged in ‘baseline marketing and distribution functions’. Guidelines will be provided on what constitutes base marketing and distribution functions but indications from the draft blueprint published in 2020 suggests that the focus is on routine distribution companies with commissionaires, commission agents, entities performing DEMPE functions or strategic development – all out of scope.
Notwithstanding that Pillar 1B is being narrowly focused on baseline distribution and marketing functions there is no doubt that it will shape tax authority expectations about the profitability of a full range of distribution and marketing functions (baseline or otherwise).
The minimum profit margins that will be introduced are expected to vary by industry and geography as well as functional intensity.
Pillar 1B is expected to have a relatively smaller impact compared to the other BEPS 2.0 proposals but group’s will need to assess how it interacts with their existing transfer pricing, and where new segmentations and payment flows are required. With the anticipated date of publication of the new rates pushed back until late 2022, Pillar 1B is not the main focus for most groups at this time.
The Income Inclusion Rule and Under-Taxed Payments Rule are the core of the global minimum tax concept.
The Income Inclusion Rule and the Undertaxed Payments Rule are together known as the GloBE rules (Global anti-Base Erosion Rules).
The key to both of these rules is the calculation of the new GloBE effective tax rate.
The most important aspects of this calculation are as follows:
MNEs will need to calculate their effective tax using these new rules on a jurisdictional basis and compare the effective tax rate that they have calculated to the 15% minimum that has been endorsed by theOECD and Inclusive Framework.
The income inclusion rule works by requiring a parent company to tax any profits in its subsidiaries that have not been taxed at the minimum rate. For example if Switzerland adopts the income inclusion rule (as expected) then a Swiss parent company with a subsidiary in Hungary that has an effective tax rate of 9% would pay a top up tax of 6% of the Hungarian profits – the payment would be made here in Switzerland to the Swiss tax authorities.
The under-taxed payment rule would work by allowing the Swiss tax authorities to tax payments made by a Swiss entity to undertaxed foreign entities (I.e. entities in locations where the group has a GloBE effective tax rate of less than 15%. For example if a Swiss subsidiary made payments to a sister company in Bermuda (tax rate 0%) then the Swiss tax authorities would be allowed to tax the profits of Bermuda at the new minimum rate of 15% - subject to cap. Switzerland would apply this additional tax unless Bermuda’s profits were already taxed in another country through an application of the subject to tax rule or the income inclusion rule (or unless Bermuda perhaps introduces a 15% corporate tax for large entities in response to the new rules – as Ireland has indicated it will).
Another important implication of the undertaxed payments rule is that foreign tax authorities will be able to tax the Swiss profits of Swiss headquartered groups if their GloBE effective tax rate for the Swiss operations is less than 15% (as calculated under the new rules). This will happen unless or until Switzerland amends its tax law – for example by introducing a new 15% domestic minimum tax for the largest groups.
A final important aspect of the income inclusion rule and the under-taxed payments rule is the order in which they apply. Because the income inclusion rule applies first, and because the undertaxed payments rule only applies to profits that have not already been caught by the income inclusion rule, it is likely that the income inclusion rule will have a much larger impact on most Swiss headquartered groups.
We would be happy to talk to you. Please contact your regular PwC tax contact or any of the other BEPS 2.0 experts listed at the bottom of this page.
Partner, Transfer Pricing and Value Chain Transformation, Geneva, PwC Switzerland
+41 58 792 95 60
Director - Transfer Pricing & Value Chain Transformation, Zurich, PwC Switzerland
+41 58 792 44 87