BEPS 2.0: Pillar One and Pillar Two

Overview

Pillar One, which applies to large multinationals, will reallocate certain amounts of taxable income to market jurisdictions, resulting in a change in effective tax rate and cash tax obligations, as well as an impact on current transfer pricing arrangements. Clients should assess the long-term impact of these changes, as the OECD intends to increase the number of entities subject to Pillar One over time.

The timing for the introduction of Pillar One is unknown and depends on its acceptance by a critical mass of jurisdictions.

Insights

• These changes are multinational in scope and, despite simplification compared to previous proposals, remain technically complex.
• Digital services taxes and other similar measures are to be repealed under the agreement, but the identification and timetable are not yet clear.
• The scope of covered businesses has moved far from the original intention of highly digitalized business models. Extractives and regulated financial services are exempt, but other industries are generally in scope.

Overview of Pillar Two

Pillar Two aims to ensure that income is taxed at an appropriate rate and has several complicated mechanisms to ensure this tax is paid. The rules are complex and will require substantial new forms of financial data that tax departments may not currently have access to within their organization.

On 20 December 2021, the OECD/G20 Inclusive Framework (IF) on Base Erosion and Profit Shifting (BEPS) released Model Global Anti-Base Erosion (GloBE) rules (Model Rules) under Pillar Two. These Model Rules set forth the “common approach” for a Global Minimum Tax at 15 percent for multinational enterprises with a turnover of more than EUR750 million. The IF has released further guidance on the Model Rules throughout 2022 and 2023, including Commentary, an Implementation Framework, and Administrative Guidance. The European Union (EU) and a number of other jurisdictions intend to introduce Pillar Two from 2024, while other countries and territories have indicated they will introduce Pillar Two from 2025.

Insights on Pillar Two

• The IF aims to bring the Pillar Two rules into law in 2023, to be effective in 2024, although the effective date of the Undertaxed Payments Rule (UTPR) will be delayed for one year.
• Following the 20 December 2021 release of the Model Rules, the European Commission published a proposed EU Directive to incorporate Pillar Two rules into EU law that would expand the scope of the Pillar Two rules to wholly domestic groups located in the EU, along with certain other modifications to the Model Rules.
• The Model Rules did not include a model Subject to Tax Rule (STTR) treaty provision, which is expected to be developed in 2023. A multilateral instrument will be developed by mid-2023 to facilitate implementation of the STTR in relevant bilateral treaties. By the end of 2023, an implementation framework will be developed that facilitates the coordinated implementation of the GloBE rules.
• A number of uncertainties remain, but Pillar Two is likely to be a radical shift in the tax landscape.