Deloitte comments
The UK’s move is a surprise, given the UK’s general commitment to the
multilateral process underpinning the BEPS project. It is clear that the UK would
like to encourage multinationals that have structures potentially affected by the
BEPS project to change at least the UK aspects of those structures. In fact, the
provisions have been written to remove a charge to the new tax where those
adjustments are made, even after the end of the accounting year. The tax rate
specifically encourages this, since the DPT is 5% higher than the regular 20%
corporation tax.
The proposals say they are intended to catch artificial arrangements not
supported by economic substance, which references language used in the BEPS
project. The DPT will apply where there is a tax advantage for a multinational
group and it is reasonable to assume that the alternative would be for additional
profits to be taxed in the UK. The tax is not intended to apply to profits from
activities carried on outside the UK, supported by people.
At this stage, before the G20/OECD publishes the agreed Actions on Transfer
Pricing and Permanent Establishment – due in September 2015 – companies will
be justifiably concerned that they do not yet have sufficient information on which
to make structural changes, or to comply with this new tax. Concepts such as
“economic contribution to value” require definition, preferably on a multilateral
basis.The new tax is designed to sit outside the UK’s tax treaties, and as such will not
be limited or supported by treaty clauses such as PE provisions, rules on the
taxation of business profits, access to double tax relief and mutual agreement
procedures and exchange of information between governments.
Regrettably, the draft legislation is complex and badly drafted. HMRC will hold an
open day on the DPT on 8 January 2015, and comments on technical aspects are
invited at divertedprofits.mailbox@hmrc.gsi.gov.uk. The government says it is
committed to introducing the legislation and, whilst it welcomes comments on the
detail does not expect to make significant changes to the structure of the tax.