OECD Nations Inch Closer to International Tax Regime

By:
Chris Gaetano
Published Date:
Jun 10, 2019
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Member nations of the Organisation for Economic Co-Operation and Development (OECD), an intergovernmental economic organization with 36 member countries including the United States, further discussed a proposal that would develop an international framework for cross-border taxation that is primarily aimed at the tech industry but holds implications for global companies of all kinds. 

In general, OECD proposals such as this one involve the creation of agreed-upon rules of the game for international cooperation. They can culminate in formal agreements by countries, for example on combating bribery, on arrangements for export credits, or on the treatment of capital movements. They may produce standards and models, for example in the application of bilateral treaties on taxation, or recommendations, for example on cross-border co-operation in enforcing laws against spam. They may also result in guidelines, for example, on corporate governance or environmental practices.

The annual OECD tax report said that the framework project is based on two pillars. The first pillar focuses on the allocation of taxing rights including nexus issues with three different proposals that would modify the existing rules based on the concepts of “user participation,” “marketing intangibles” and “significant economic presence.”

The first plan is the "user participation" proposal that is premised on the idea that soliciting the sustained engagement and active participation of users is a critical component of value creation, with the activities and participating of these users contributing to brand creation, data generation and market power. For example, Facebook would be useless if it had no users from which to draw personal data that could then be sold to marketers. 

The second plan is the "marketing intangibles" proposal, which is meant to apply not just to tech companies but to any firm with international activities, because it would focus on a concept called marketing intangibles, defined as an intangible relating to marketing activities that aid in the commercial exploitation of a product of service and/or has an important promotional value for the product concerned.

The third plan is the "significant economic presence" proposal, which assumes that technological advances have rendered existing nexus and profit allocation rules ineffective. It's premised on the observation that a company now can be heavily involved in the economic life of a jurisdiction even if there is no significant physical presence. 

The second pillar explores a global anti-base erosion mechanism which aims to address the continued risk of profit shifting to entities subject to no or very low taxation.

The report said that OECD members did not converge on a conclusion, but committed to continue working together to deliver a final report in 2020 aimed at providing a consensus-based long-term solution, with an update in 2019. A consensus-based international framework was seen as preferable by the OECD rather than, according to the report, a patchwork of unilaterally implemented nation-level frameworks that may or may not be compatible with each other. 

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