In 2013, members of the OECD/G20 began to review the digital economy as part of the Base Erosion and Profit Shifting ("BEPS") Action Plan. Their primary aim was to allow the fair taxation of profits generated by businesses without a physical presence in the relevant market jurisdictions by introducing new nexus and profit allocation rules.

Since then, the digital economy has continued to evolve at a breakneck pace, with industry-agnostic functions from digital platforms to data analytics shifting value creation across international borders. This trend shows no signs of abating and is only accelerated by the latest Covid crisis, having expanded a presence into almost every industry which makes it increasingly challenging to ring-fence.

Following an interim report, on 29 January 2019, the OECD published a policy note on new proposals to combat the BEPS activities of multinational companies, which was referred to as „BEPS 2.0". One and a half years later, on 12 October 2020, after a series of policy notes and public consultations, the OECD published blueprints for Pillar One and Pillar Two, together with accompanying documentation including an economic impact assessment.

Pillar One aims at developing an approach for establishing taxable presence ("nexus") in the digitalised and consumer-facing economy. Pillar Two introduces the concept of a global minimum profit tax.

The updated blueprints provide detail on the technical design and features of each pillar, identify areas that require further technical work prior to finalization, and also highlight aspects where political agreement will be necessary. As the OECD documents make clear, the Blueprints do not reflect agreement by the member jurisdictions of the Inclusive Framework on BEPS, as there are political and technical issues that still need to be resolved. However, the cover statement of the Inclusive Framework refers to the Blueprint as a "solid basis for future agreement". It states that the member jurisdictions have agreed to swiftly address the remaining issues to bring the process to a successful conclusion by the ambitious deadline of mid-2021.

A broad consensus will be critical to avoid ongoing unilateral action by many jurisdictions. As will be noted, the scope of BEPS 2.0 is significantly broader than European Union-style digital services taxes ("DSTs"). Based on an impact assessment performed by the OECD, Pillar One and Pillar Two could increase global corporate income tax revenues by about US$ 50-80 bn per year, and up to US$ 100 bn taking into account the impact of the Global Intangible Low-Taxed Income (“GILTI”) regime in the US. While this may enable political consensus of governments to repeal DSTs, it may also increase pushback from businesses based in the administrative and tax costs envisaged.

The aim of Pillar One is to reach a global agreement on adapting the allocation of taxing rights on business profits in a way that expands the taxing rights of market jurisdictions. In order to achieve this, Pillar One contains three elements:
 

• Amount A: A new local market jurisdiction right to tax a proportion of (deemed) residual profits of a multinational enterprises group ("MNE") or segment of such a group associated with sustained and significant participation in that jurisdiction.
• Amount B: The standardization of the remuneration of related-party distributors that perform 'baseline marketing and distribution activities', aligned with the arm's length principle ("ALP").
• Tax Certainty: A dispute prevention/resolution mechanism, likely to require an 'innovative solution' to ensure agreement between tax administrations as to how Amount A applies to a group.

Pillar One – Amount A
The following building blocks have been identified as essential to the construction of Amount A:

• Scope: The new taxing rights under Amount A only apply to MNEs that fall within the defined scope of "activity tests" and "threshold tests":
  • Activity tests capture those MNEs that can participate in "an active and sustained manner" in the economic life of a jurisdiction, with or without local physical operations. This covers MNEs with activities that fall in either or both automated digital services ("ADS"), and Consumer-Facing Businesses ("CFB").
  • Threshold tests include the annual consolidated group revenue threshold (potentially EUR 750 million), and secondly, a local de minimis threshold for foreign in-scope revenue.
• New taxable presence/nexus: The new nexus rules determine entitlement of a market jurisdiction to an allocation of Amount A only, and does not create a nexus for any other purpose, e.g., customs duties or other taxes.
• Revenue sourcing: The revenue sourcing rules are aimed to determine the revenue that should be treated as derived from a particular market jurisdiction, including sourcing principles and defined hierarchies of indicators reflective of specific types of in-scope activities. They reflect the particularities of ADS and CFB.
• Tax base determination: The tax base will be quantified using an adjusted Profit Before Tax ("PBT") from the consolidated Profit and Loss statement, with adjustments such as adding back any income tax expense. The Blueprint also covers a loss carryforward regime to ensure only economic profit is reached, with an earn-out mechanism to offset past losses against future profits. Furthermore, for some MNEs, it may be necessary to compute the Amount A tax base on a segmented basis (segmentation by business line or geography).
• Profit allocation: Amount A will be determined based on a three-step formula approach that is not necessarily in line with the arm's length principle.
• Elimination of double taxation: The new taxing right and existing profit allocation rules will be reconciled by identifying the relevant jurisdictions in order to apportion Amount A tax relief among market jurisdictions equitably. In addition, the Blueprints envisages potential safe harbors to reflect situations where residual profits are already allocated, relying on existing ALP-based rules, thus avoiding double-counting issues.

Pillar One – Amount B
Amount B will standardize the remuneration of related party distributors that perform "baseline marketing and distribution activities" in the market jurisdiction. Further, the activities in scope are first defined by a 'positive list' of typical functions performed, assets owned and risks assumed at arm's length by routine distributors and vice-versa by 'negative list'. Quantitative indicators would further support the identification of in-scope activities.
It should be noted that Amount B is intended to approximate results determined in accordance with the ALP. Amount B will apply to entities or PEs with existing nexus, and as such is not related to the new nexus rules of Amount A. Importantly, the scope limitations of Amount A relating to the activity tests and threshold tests are not applicable to Amount B.

Pillar One – Increased tax certainty
The Blueprint states that "tax certainty is a key component" of Pillar One and therefore, "innovative dispute prevention and dispute resolution mechanisms" are necessary. For this reason members of the Inclusive Framework agreed that in the event a dispute (i) related and (ii) beyond to Amount A might arise, appropriate mandatory binding dispute resolution mechanisms would be made available to MNEs.
 

Whilst certain details on thresholds and application are still to be confirmed, companies can already foresee how the rules may impact them and prepare accordingly. The following elements should be considered:
 

• Companies with revenues above the CbCR threshold: Pillar One will likely apply a threshold for application, for instance, a consolidated group revenue of EUR 750 million after an initial higher threshold. A minimum foreign source in-scope revenue of EUR 250 million is also likely to apply.
• Companies with automated digital services: These are companies with online advertising services, sale of user data, online search engines, social media platforms, online intermediation platforms, digital content services, online gaming, standardized online teaching services, and/or cloud computing services.
• Consumer-facing businesses: These are companies with revenues from the sale of types of goods or services commonly sold to individual consumers and/or businesses that license or otherwise exploit intangible property connected to such goods or service. These include companies operating through third-party intermediaries, via franchise models, and/or by way of licensing arrangements.

Pillar I will likely exclude companies in the extractive industries, financial services, infrastructure (including residential real estate), international air and shipping. The FinTech and pharmaceutical sectors may potentially remain in scope

Pillar One is expected to reallocate taxing rights to income of over US$ 100bn of profits between jurisdictions. Based on the latest blueprints, it could have the following implications:
 

• Relocation of taxable revenues from investment hubs and high income jurisdictions to lower income economies: Based on the latest prognosis from the OECD, the additional revenue allocated to market jurisdictions from Pillar One would likely result in a reduction in revenues and allocated profits to investment and principal hubs. Conversely, on average, low and middle-income economies would gain relatively more revenue than advanced economies from Pillar One.
• New nexus rules could impact companies with limited presence: Companies with ADS would be subject to tax under Pillar One regardless of local presence (or lack thereof), if they meet a revenue threshold, currently suggested at EUR 5m. For CFBs, this would also require "physical presence" in the form of a subsidiary or permanent establishment ("PE") in the market jurisdiction, as well as additional activities linking activities of the group to market revenues. These could include facilitating billing and payment in the local currency, collecting indirect taxes and duties, transportation, maintenance of local stock, cross border delivery, after-sales support, etc.
• Companies may require additional capabilities to track and segment source revenues: MNEs would need to identify different revenue streams for ADS and CFB, and then determine their source location. MNEs would be required to apply lists of specific indicators (e.g., geolocation, IP address, country code of user’s phone number) in a strict hierarchical fashion. Information would be regarded as unavailable if it is not in the MNE’s possession and reasonable steps have been taken to obtain it, without success.

The Pillar Two Blueprint presents details on the design of global minimum tax regimes which operate independently to ensure minimum levels of taxation for MNEs:
 

• A global minimum tax regime referred to as the Global Anti-Base Erosion ("GloBE”) proposal is applied through the Income Inclusion Rule ("IIR") and Undertaxed Payment Rule ("UTPR"), with support from the Switch-Over Rule ("SOR") as required.
• The Subject to Tax Rule ("STTR") ensures a minimum level of tax on a payment-by-payment basis between related parties, where the recipient country has a nominal tax rate less than a minimum tax rate.

These are covered in further detail below:
 

• GloBE - Income Inclusion Rule: This operates as a global minimum tax to reduce the incentive to allocate income to low taxed entities. It will apply a "top-up" tax to the parent company based on taxable income of foreign subsidiaries and permanent establishments if that income was subject to tax at an effective tax rate ("ETR") below a "minimum rate".
  Whenever a jurisdiction has been identified as undertaxed, the difference between its ETR and the minimum rate, expressed as a percentage, would be applied to the share of the undertaxed income of the parent company.
• GloBE - Undertaxed Payments Rule: This targets so-called 'undertaxed payments'. It is intended to complement the IIR (which has priority) by protecting the source payer’s jurisdiction from base eroding payments. It denies deductions or imposes source-based taxation (incl. withholding taxes) for payments to a related party if that payment was not subject to tax at a "minimum rate". 
• GloBE - Switch-Over Rule: The SOR would enable countries to overturn treaty obligations which exempted amounts attributable to a foreign permanent establishment. This would result in exempt branches being viewed as constituent entities under the GloBE rules, ensuring that their taxable income could not be 'blended' with the higher-taxed income in the 'Head Office' jurisdiction. Applied with the IIR, in the case that no entity in the chain of ownership is resident in a territory that has implemented the IIR, taxing rights of the branch could be allocated to the head office jurisdiction.
• Subject to Tax Rule: This is applied between connected parties and to a defined set of payments (i.e. interest, royalties, and "high risk service payments"). It disallows tax treaty benefits if the item of income was not subject to tax at a minimum rate.

The Blueprint recognizes that there may be member jurisdictions that will not implement the Pillar Two rules, but that all jurisdictions which do are expected to apply them consistently. It also notes the importance of the STTR to a large number of member jurisdictions, particularly developing countries, and states that such a rule will be an integral part of a Pillar Two agreement.

The Blueprint calls out the need to reach agreement on the basis on which the US GILTI rules are to be treated as a Pillar Two compliant income inclusion rule. The Blueprint further indicates that the Inclusive Framework recognizes that agreement on the co-existence of the GILTI rules and the GloBE rules need to be part of a political agreement on Pillar Two. Further consideration will be given to the technical aspects of the coordination between these rules, which will include consideration of the GILTI rules to US intermediate parent companies of foreign groups that are headquartered in countries that apply the IIR.

The Blueprint notes that the treatment of the GILTI rules as compliant with Pillar Two will need to be reviewed if legislative or regulatory changes were to materially narrow the GILTI tax base or reduce the tax rate. Concerning the UTPR that is intended to operate as a backstop to the IIR under Pillar Two, the Blueprint further notes that the Inclusive Framework "strongly encourages" the US to limit the operation of the Base Erosion and Anti-abuse Tax ("BEAT") in the case of payments to entities that are subject to a Pillar Two income inclusion rule.

The Blueprint acknowledges that both the STTR and the SOR would require changes to existing bilateral tax treaties. These could be implemented through bilateral negotiations and amendments to individual treaties or more efficiently through a multilateral instrument. Mutual agreement procedures could then apply to any disputes arising.

Pillar Two will likely apply a threshold for application, for instance, a consolidated group revenue of EUR 750 million in the preceding fiscal year. Investment funds, pension funds, governmental entities, international organizations, non-profit entities, and entities subject to tax neutrality regimes may be excluded from scope. There are currently no exceptions based on industry.

The Pillars are expected to bring additional income to tax in several jurisdictions. These are based on the following principles:
 

• Countries with a low ETR: Whilst the Blueprint states that the tax threshold is still to be confirmed, rates of 10%-12.5% are used for illustrative purposes across the Blueprint and associated economic impact analysis. Pillar II is likely to apply safe harbor thresholds for the ETR calculation, i.e. via ETR per jurisdiction based on the CbCR report, or a de minimis profit exclusion. These jurisdictions can be impacted indirectly via the IIR, or directly via the UTPR.
• Parent companies may be impacted by the IIR: Parent companies will need to understand whether their jurisdiction operates the IIR, and if so, to monitor whether they will need to apply the top-up amount to bring the overall tax on the profits in each country where the group operates up to the minimum effective tax rate. Any tax due is calculated and paid by the ultimate parent company to the tax authority in its country, or a holding/head office company within the group. This is particularly key for US headquarted groups, which will need to consider how BEPS 2.0 impacts the US’ existing Controlled Foreign Companies (“CFC”) regime.
• Subsidiaries may be impacted by the UTPR: Each jurisdiction should assess their potential applicability to the UTPR in the case that its ETR falls below the minimum tax threshold, and it does not have a parent or holding company which would be subject to the IIR. This applies as a secondary rule in cases where the effective tax rate in a country is below the minimum rate, but the IIR has not been applied by the ultimate or intermediate holding companies in respect of a group company in that jurisdiction.
• Companies with significant interest, royalties or service income: Companies which receive income from payments which benefit from treaty rates may still have these rates disallowed under Pillar Two due the local ETR, even if the transactions are assessed as at arm’s length.

Given the rapidly evolving landscape and uncertainties, MNEs should stay informed about developments in BEPS 2.0 in order to determine how they are affected. However, they can already take the following steps:
 

• Assess which hubs and markets are affected: Many groups currently take advantage of principal and regional hub structures, as well as centers of excellence in order to achieve economies of scale, drive efficiencies and create value. Companies operating in countries with competitive business and tax environments will need to evaluate the practical impact of these proposals for the business climate and the overall economy, and the associated impact on global and regional hubs based on the reallocation of profits from Pillar One to market jurisdictions.
• Determine which industries/products are affected: Given the current applicability of Pillar One to specific industries and products via the scope of ADS and CFB, it will be necessary for companies to assess their current sales channels, revenue streams, and highlight potential sources of income which may fall under the scope of Pillar One.
• Determine which payments are affected: As the Pillar Two may impact service payments such as royalties, value-based fees, and non-routine services, companies should be aware of where such transactions occur, and proactively review the rates at which they are subject to tax to determine the risk that they may be subject to STTR.
• Review ability to track source revenues: Companies may have to prepare for additional administrative requirements in order to track source revenue appropriately. This will require an understanding of the location of source customers, and the ability to link data from operational systems (i.e. geolocation of customers) to financial systems (where to recognize revenues).
• Segmentation of revenues: As these will require different taxing rules, companies will need to ensure that revenues, and their underlying cost base, can be segmented between ADS, CFBs and those out of scope of Pillar One.
• Demonstrate clear management of internal controls: In order to prepare for potential audits, companies should ensure that the underlying data is available to track and segment the financial results. MNEs will need to document their internal control frameworks and the results of applying indicators by revenue type and jurisdiction.
• Track local ETR and highlight lower taxed jurisdictions: As a local ETR threshold is likely to apply for Pillar Two, companies can already highlight the location of these jurisdictions and determine whether exclusions apply (i.e. de-minimis or carry forward losses), or if this may require potential application of Pillar Two going forward. Companies will also need to determine where they may potentially need to apply IIR on this basis.
• Review operating model: In light of the impact on the income of each jurisdiction, companies should determine the effectiveness of hub principal and investment models and a potential revenue shift to lower income market jurisdictions. A Value Chain Analysis (“VCA”) taking into account BEPS 2.0 will be key to assess value contribution to markets and determine an effective and sustainable operating model.
• Determine the impact and contribute to the ongoing discussion: Political negotiation on applicable thresholds will be essential. It is vital for companies to understand which factors will impact them, and to consider actively participating in the global dialogue by providing feedback to the OECD and to the tax policymakers in the countries where they operate. The outcome of this project could dramatically change the current international tax and transfer pricing landscape, so now is the time for businesses to weigh in with feedback reflecting their profile and experience.

In determining the most appropriate approach, companies have been able to leverage on KPMG's practical approach for support:
 

• Workshops: Information on our latest advice and direction of travel to highlight key areas of risk and inform the appropriate stakeholders.
• Risk analysis diagnostics: A high-level, qualitative risk assessment based on the latest BEPS 2.0 analyses, highlighting jurisdictions which may be subject to additional tax via reallocation or Pillar Two measures.
• Detailed risk review: A “readiness” analysis based on an in-depth review on the potential tax risk impact of BEPS 2.0 per jurisdiction, including a review of key transactions, the group’s ability to track, source and segment revenues.
• BEPS 2.0 modelling: Proactive modelling of options and impact based on latest BEPS 2.0 releases, to determine areas of potential tax risk under the current model and mitigation steps.
• Sustainable business model design: Allocation of risks and resources in line with BEPS 2.0 and business requirements, using KPMG's value chain analysis methodology, to create a durable set up for the future.