December 21, 2022
OECD releases consultation document on Pillar Two GloBE Information Return
On 20 December 2022, the OECD released a consultation document on the Pillar Two GloBE Information Return as part of the ongoing work of the OECD/G20 Inclusive Framework on Base Erosion and Profit Shifting (BEPS) on addressing the tax challenges arising from the digitalization of the economy (the BEPS 2.0 project). The development of a standardized GloBE information return is aimed at facilitating compliance with and administration of the GloBE rules.
The consultation document provides information on the development of a standardized GloBE information return and includes Annexes setting out identified data points that multinational enterprises (MNEs) are expected to need for Pillar Two compliance (including the calculation of their GloBE tax liability) as well as accompanying explanatory guidance.
On the same date, the OECD released two additional documents related to the implementation package for Pillar Two: guidance on safe harbors and penalty relief and another public consultation document on tax certainty for the GloBE rules. Stakeholders are invited to submit written comments by 3 February 2023.
The OECD released the GloBE Model Rules on 20 December 20211 and Commentary on 14 March 2022, as approved by the Inclusive Framework.2 These documents are intended to be used by countries to incorporate the Pillar Two global minimum tax rules into their domestic tax legislation. Chapter 8 of the GloBE Model Rules addresses administrative aspects of the GloBE rules. It sets out an MNE Group's obligation to file a standardized information return to provide information on the tax calculations made by the MNE Group under the GloBE rules. The GloBE Model Rules state that the required information shall be specified, expanded, or restricted in accordance with the GloBE Implementation Framework.
At the time of the release of the Commentary, the OECD announced a public consultation requesting input in connection with the work to be undertaken by the Inclusive Framework on the GloBE Implementation Framework. A public meeting was held on 25 April 2022 to discuss the comments received on key implementation matters.3
The consultation document reflects the work done to date on identifying the data points that will be needed to calculate the GloBE tax liability in line with the GloBE Model Rules. The consultation document does not address tax certainty, and it only briefly mentions exchange of information matters, reflecting the need for further consideration in this area in the final design of the GloBE information return. A consultation document on tax certainty, including possible dispute prevention and dispute resolution mechanisms, was released on the same date as this consultation document on the GloBE information return.
The consultation document does not address all the issues raised by stakeholders in comments submitted in the public consultation on Pillar Two implementation matters. For example, the consultation document does not provide further guidance on the amount and type of data points that would be required to be disclosed in situations where safe harbors or other simplifications apply. Instead, it invites stakeholders to provide feedback on these matters. The open questions noted in the consultation document underscore that much work still has to be done by the Inclusive Framework on the design of a final GloBE information return.
The consultation document provides information on the Inclusive Framework's work on developing a standardized GloBE information return and is divided in four sections: (i) Background; (ii) GloBE Information Return; (iii) Further Input; and (iv) Public Consultation.
Annex A1 sets forth the identified data points that may be needed for the GloBE tax liability calculation, organized into tables. However, the consultation document indicates that the tables do not necessarily represent the final form of the GloBE information return. Annex A2 provides explanatory guidance to increase the understanding of each data point and its link with the underlying GloBE Rules. Annexes A1 and A2 follow the same outline and are divided into four sections: (i) General Information; (ii) Corporate Structure; (iii) Effective Tax Rate Computation and Top-up Tax Computation; and (iv) Top-up Tax Allocation and Attribution. The tables in Annex A1 comprise 22 pages and numerous detailed data points, illustrating the extensive nature of the information that will be needed and the complexity of the required calculations.
The consultation document indicates that the Inclusive Framework member jurisdictions have sought to strike a balance between the tax administrations' need for information and the compliance burden for MNE Groups. It further indicates that the Inclusive Framework welcomes input from stakeholders on how data points and explanatory guidance could be modified based on the nature and structure of an MNE Group's operations to provide the information needed by tax administrations while avoiding the imposition of unnecessary burdens on MNE Groups. Any such modifications could mean that the scope of the information required to be provided may vary depending on the fact pattern of a specific business.
The consultation document also recognizes that there may be cases where all jurisdictions would not need all the information reported in the GloBE information return. In that regard, the Inclusive Framework is exploring segmenting the information to be reported and is seeking input from stakeholders on the implications and burdens of a segmentation approach.
The consultation document indicates that input received in the earlier public consultation on the GloBE Implementation Framework reflected strong support for a single point of filing for the GloBE information return followed by exchange of information between tax administrations.4 The Inclusive Framework is, therefore, working on the development of centralized filing requirements and appropriate automatic exchange mechanisms. In addition, with a view to facilitating coordination and consistent application of the GloBE Rules, it may also explore the possibility of developing other administrative mechanisms such as a coordinated framework for further information requests that result from the review of a GloBE information return or coordinated risk assessments on the basis of the GloBE information return.
The consultation document includes a set of specific questions that stakeholders may wish to address. These questions essentially take the data points in the tables in Annex A1 and the accompanying explanatory guidance in Annex A2 as the starting point. The document includes a request for suggestions from stakeholders for simplified calculations that could be developed as part of the permanent safe harbors described in the guidance on safe harbors and penalty relief. In addition, input is requested on how to integrate the reporting requirements under a Qualifying Domestic Minimum Top-up Tax with the requirements of the GloBE information return. Finally, comments are sought on the development of other administrative mechanisms to enhance tax certainty and facilitate coordination and consistent application of the GloBE rules.
The consultation document provides an indication of the amount of data that businesses will ultimately have to report for GloBE purposes. However, the tables and explanatory information included in the document are the first step in the process of developing the GloBE information return and work in the Inclusive Framework will continue, with consideration given to the stakeholder input that is received. The final GloBE information return may look quite different and could require additional data points.
It will be important to continue to monitor developments with respect to the GloBE information return closely over the coming months. Businesses also may want to consider taking the opportunity to provide comments on this consultation document and engage with country policymakers through the ongoing consultation processes.
For additional information with respect to this Alert, please contact the following:
Ernst & Young Belastingadviseurs LLP
Ernst & Young Limited (New Zealand)
Ernst & Young LLP (United States)
1 See EY Global Tax Alert, OECD releases Model Rules on the Pillar Two Global Minimum Tax: First impressions, dated 20 December 2021 and OECD releases Model Rules on the Pillar Two Global Minimum Tax: Detailed review, dated 22 December 2021.
2 See EY Global Tax Alert, OECD releases Commentary and illustrative examples on Pillar Two Model Rules, dated 21 March 2022.
3 See EY Global Tax Alert, OECD holds public consultation meeting on Implementation Framework for Pillar Two GloBE Rules, dated 29 April 2022.
4 The global EY comment letter submitted to the OECD can be found here.