BEPS Action 5 on Harmful Tax Practices: Transparency ...

1 BEPS Action 5 on Harmful Tax practices Transparency FrameworkPEER review DOCUMENTSF ebuary2021 BEPS Action 5 on Harmful Tax practices : Transparency framework peer review Documents February 2021 This document and any map included herein are without prejudice to the status of or sovereignty over any territory, to the delimitation of international frontiers and boundaries and to the name of any territory, city or area. Please cite this publication as: OECD (2021), BEPS Action 5 on Harmful Tax practices Transparency framework : peer review Documents, OECD, Paris, OECD 2021 You can copy, download or print OECD content for your own use, and you can include excerpts from OECD publications, databases and multimedia products in your own documents, presentations, blogs, websites and teaching materials, provided that suitable acknowledgment of the source and copyright owner is given.

2 All requests for public or commercial use and translation rights should be submitted to Requests for permission to photocopy portions of this material for public or commercial use shall be addressed directly to the Copyright Clearance Center (CCC) at or the Centre fran ais d'exploitation du droit de copie (CFC) at | 3 BEPS Action 5 ON Harmful TAX practices : Transparency framework OECD 2021 Foreword The integration of national economies and markets has increased substantially in recent years, putting a strain on the international tax rules, which were designed more than a century ago. Weaknesses in the current rules create opportunities for base erosion and profit shifting (BEPS), requiring bold moves by policy makers to restore confidence in the system and ensure that profits are taxed where economic activities take place and value is created. Following the release of the report Addressing Base Erosion and Profit Shifting in February 2013, OECD and G20 countries adopted a 15-point Action Plan to address BEPS in September 2013.

3 The Action Plan identified 15 actions along three key pillars: introducing coherence in the domestic rules that affect cross-border activities, reinforcing substance requirements in the existing international standards, and improving Transparency as well as certainty. After two years of work, measures in response to the 15 actions were delivered to G20 Leaders in Antalya in November 2015. All the different outputs, including those delivered in an interim form in 2014, were consolidated into a comprehensive package. The BEPS package of measures represents the first substantial renovation of the international tax rules in almost a century. Once the new measures become applicable, it is expected that profits will be reported where the economic activities that generate them are carried out and where value is created. BEPS planning strategies that rely on outdated rules or on poorly co-ordinated domestic measures will be rendered ineffective.

4 Implementation is now the focus of this work. The BEPS package is designed to be implemented via changes in domestic law and practices , and in tax treaties. With the negotiation of a multilateral instrument (MLI) having been finalised in 2016 to facilitate the implementation of the treaty related BEPS measures, over 90 jurisdictions are covered by the MLI. The entry into force of the MLI on 1 July 2018 paves the way for swift implementation of the treaty related measures. OECD and G20 countries also agreed to continue to work together to ensure a consistent and co-ordinated implementation of the BEPS recommendations and to make the project more inclusive. Globalisation requires that global solutions and a global dialogue be established which go beyond OECD and G20 countries. A better understanding of how the BEPS recommendations are implemented in practice could reduce misunderstandings and disputes between governments. Greater focus on implementation and tax administration should therefore be mutually beneficial to governments and business.

5 Proposed improvements to data and analysis will help support ongoing evaluation of the quantitative impact of BEPS, as well as evaluating the impact of the countermeasures developed under the BEPS Project. As a result, the OECD established the OECD/G20 Inclusive framework on BEPS (Inclusive framework ), bringing all interested and committed countries and jurisdictions on an equal footing in the Committee on Fiscal Affairs and all its subsidiary bodies. The Inclusive framework , which already has more than 135 members, is monitoring and peer reviewing the implementation of the minimum standards as well as completing the work on standard setting to address BEPS issues. In addition to BEPS members, other international organisations and regional tax bodies are involved in the work of the Inclusive framework , which also consults business and the civil society on its different work streams. This report was approved by the Inclusive framework on 17 February 2021 and prepared for publication by the OECD Secretariat.

6 4 | BEPS Action 5 ON Harmful TAX practices : Transparency framework OECD 2021 Table of contents Foreword .. 3 Abbreviations and acronyms .. 5 Executive Summary .. 6 Bibliography .. 6 Note .. 7 Introduction and background .. 8 Bibliography .. 8 Terms of reference for the conduct of the peer reviews of the Action 5 Transparency framework .. 9 Bibliography .. 12 Notes .. 12 Methodology for the conduct of the peer reviews of the Action 5 Transparency framework .. 15 Bibliography .. 19 TABLES Table 1. Data collection process 16 | 5 BEPS Action 5 ON Harmful TAX practices : Transparency framework OECD 2021 Abbreviations and acronyms APA Advance Pricing Agreement BEPS Base Erosion and Profit Shifting FHTP Forum on Harmful Tax practices IP Intellectual Property OECD Organisation for Economic Co-operation and Development PE Permanent Establishment ToR Terms of References XML Extensible Mark-Up Language 6 | BEPS Action 5 ON Harmful TAX practices : Transparency framework OECD 2021 Executive Summary The Action Plan on Base Erosion and Profit Shifting (OECD, 2013) identified 15 actions to address BEPS in a comprehensive manner.

7 In October 2015, the G20 Finance Ministers endorsed the BEPS package which includes the report on Action 5: Countering Harmful Tax practices More Effectively, Taking Into Account Transparency and Substance (OECD, 2015). The Action 5 Report (OECD, 2015[1]) is one of the four BEPS minimum standards. Each of the four BEPS minimum standards is subject to peer review in order to ensure timely and accurate implementation and thus safeguard the level playing field. All members of the Inclusive framework on BEPS, as well as jurisdictions of relevance identified by the Forum on Harmful Tax practices (FHTP) commit to implementing the Action 5 minimum standard, and commit to participating in the peer review . The peer review of the Action 5 minimum standard is undertaken by the FHTP. The purpose of a peer review is to ensure the effective implementation of an agreed standard over time. peer reviews should be conducted in a manner that is clear; targets the areas of risk; ensures that jurisdictions are treated fairly and equally; and is resource efficient.

8 The peer review will evaluate the implementation of the standard against an agreed set of criteria. These criteria are set out in terms of reference, which include each of the elements that a jurisdiction needs to demonstrate it has fulfilled in order to show proper implementation of the standard. The manner in which the peer review is undertaken is set out in the The methodology sets out the procedural mechanics by which jurisdictions will complete the peer review , including the process for collecting the relevant data, the preparation and approval of reports, the outputs of the review and the follow up process. The methodology contemplates collecting the data points relevant to the peer review by using standardised questionnaires, sent to the reviewed jurisdiction as well as the peers ( the other members of the Inclusive framework on BEPS). This note contains the key documents to be used for the annual peer review of jurisdictions compliance with the Action 5 minimum standard, as approved by the Inclusive framework on BEPS in February 2021: (1) the terms of reference and (2) the methodology for the conduct of the peer for the 2021-2025 period.

9 The process builds on the approach used for the peer review over the period 2017-2020. Bibliography OECD (2015), Countering Harmful Tax practices More Effectively, Taking into Account Transparency and Substance, Action 5 - 2015 Final Report, OECD/G20 Base Erosion and Profit Shifting Project, OECD Publishing, Paris, [1] | 7 BEPS Action 5 ON Harmful TAX practices : Transparency framework OECD 2021 OECD (2013), Action Plan on Base Erosion and Profit Shifting, OECD Publishing, Paris, [2] Note1 The methodology proposed in this note would apply to reviews conducted in the context of the Inclusive framework for BEPS Implementation. 8 | BEPS Action 5 ON Harmful TAX practices : Transparency framework OECD 2021 Introduction and background Scope of the Transparency framework The Action 5 Report (OECD, 2015[1]) sets out the agreed framework for the Transparency framework . This includes six categories of taxpayer-specific rulings which in the absence of compulsory spontaneous exchange of information could give rise to BEPS concerns.

10 These six categories are (i) rulings relating to preferential regimes; (ii) unilateral advance pricing agreements (APAs) or other cross-border unilateral rulings in respect of transfer pricing; (iii) cross-border rulings providing for a downward adjustment of taxable profits; (iv) permanent establishment (PE) rulings; (v) related party conduit rulings; and (vi) any other type of ruling agreed by the FHTP that in the absence of spontaneous information exchange gives rise to BEPS concerns. The Transparency framework applies to these categories of rulings provided they were issued within a certain period of time, as defined in the Action 5 Report (OECD, 2015[1]) as past rulings and future rulings . This does not mean that such rulings or the legal or administrative procedures under which they are given represent preferential regimes. Instead, it reflects jurisdictions concerns that a lack of Transparency can lead to BEPS, if jurisdictions have no knowledge or information on the tax treatment of a taxpayer in a specific country and that tax treatment affects the transactions or arrangements undertaken with a related taxpayer resident in their country.