Monthly Archives: February 2018

February 2018

The BMG has made a submission to the UK Treasury consultation on a Royalties Withholding Tax


These proposed provisions are an extension of the Diverted Profits Tax introduced in 2015, and the royalty withholding tax of 2016. The need for such unilateral measures clearly shows the failure so far to reach a multilateral solution to ensure that multinational enterprises (MNEs) can be taxed ‘where economic activities occur and value is created’, which was the aim of the G20/OECD project on base erosion and profit shifting (BEPS). While we regret the need for such unilateral measures, we agree that they are necessary, provided they are properly designed to contribute to a possible multilateral solution, and do not further exacerbate international tax competition.

The present proposals are novel for the UK, in claiming to tax payments for intellectual property rights (IPRs) by treating them as as sourced in the UK if used in connection with sales made in the UK, even if neither the payor nor the receiver has a taxable presence in the UK. However, the target is multinational corporate groups, which the consultation document points out will in practice usually have such a taxable presence through related entities. Such multinationals take advantage of the independent entity principle in international tax, by attributing functions such as sales and ownership of IPRs to group entities outside a jurisdiction, although other functions such as sales support may be fulfilled by local related entities. This allows their often enormous sales in the UK to escape tax not only in the UK but also in the country where such sales revenue is attributed, due to the royalty deduction, if the payments flow to an entity notionally located in a low-tax jurisdiction.

Counteracting such strategies results in highly complex measures such as the present proposals. Our comments analyse the legal difficulties they present, and offer some suggestions for ameliorating possible negative and unforeseeable effects. It is especially important to ensure that there are no such effects on taxation by other jurisdictions, especially developing countries. The proposal should be explicitly formulated as an anti-avoidance measure, hopefully short-term, and accompanied by powers for HMRC to issue suitable guidance to prevent harmful impacts on other countries.

These measures clearly show that effective taxation of MNEs requires that they be treated in accordance with the economic reality that they operate as unitary firms under central direction. Both the UK government and MNEs and their tax advisers should accept that this means explicitly moving away from the independent entity principle, rather than covertly as in these proposals. The government should advocate and support multilateral measures in this direction, instead of needing to resort to unilateral measures such as this, which make the system increasingly complex, uncertain and hard to administer.

Corporate Tax and the Digital Economy

February 2018

The BMG has made a submission to the UK Treasury consultation on Corporate Tax and the Digital Economy


Despite the reforms recommended by the G20/OECD project on base erosion and profit shifting (BEPS), as well as the unilateral measures taken by the UK, the measures taken so far have only patched up existing rules. In our view fundamental reforms are needed. Digitalisation affects the whole economy, and many firms use multi-channel models, so there should not be a special regime for digital businesses.

Reforms of international tax rules should be based on the following principles:

(i) neutrality between business models, both digital and non-digital, but also regardless of the extent or form of digitalisation, including multi-channel models;

(ii) ending the advantages enjoyed by multinationals of amassing large untaxed earnings which can be used to fund their growth and so reinforce their dominant monopoly positions;

(iii) adopting a new approach to taxation of MNEs which would treat them in accordance with the business reality that they operate as global firms, and applying clear, simple, and preferably standardized criteria for allocating their worldwide profits to countries where they have a real business presence and away from countries where few or no activities take place.

The UK should work for multilateral solutions on as wide a basis as possible.  Suitably designed short-term measures may be appropriate until such wide reforms are in scope, provided they are:

(i) in line with the principle stated in the G20 Declaration on International Tax in 2013 of taxing multinationals ‘where economic activities occur and value is created’;

(ii) do not damage developing countries and emerging economies; and

(iii) where possible taken in concert with other countries.