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The OECD/G20 Base Erosion and Profit Shifting Action Plan
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2016-12-01
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BEPS 2015 Final Reports

Структура документа
The OECD/G20 Base Erosion and Profit Shifting Action Plan
OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations 2017
Foreword

Foreword

Table of Contents

Table of Contents

Chapter I: The Arm's Length Principle

Chapter II:Transfer Pricing Methods

Part II: Traditional transaction methods

Part III: Transactional profit methods

Chapter III: Comparability Analysis

Chapter IV: Administrative Approaches to Avoiding and Resolving Transfer Pricing Disputes

Chapter V: Documentation

Chapter VI: Special Considerations for Intangibles

Chapter VII: Special Considerations for Intra-Group Services

Chapter VIII: Cost Contribution Arrangements

Chapter IX: Transfer Pricing Aspects of Business Restructurings

Part I: Arm’s length compensation for the restructuring itself

Part II: Remuneration of post-restructuring controlled transactions

List of Annexes

Preface

Abbreviations and Acronyms

Glossary

Chapter I The Arm's Length Principle

Introduction

B.1 Article 9 of the OECD Model Tax Convention

C.1 Background and description of approach

D.1. Identifying the commercial or financial relations

Chapter II Transfer Pricing Methods

Part I: Selection of the transfer pricing method

Part II: Traditional transaction methods

B.1 In general

C.1 In general

D.1 In general

Part III: Transactional profit methods

B.1 In general

C. Transactional profit split method

Chapter III Comparability Analysis

Performing a comparability analysis

A.1 Typical process

B.1 Timing of origin

Chapter IV Administrative Approaches to Avoiding and Resolving Transfer Pricing Disputes

Introduction

Transfer pricing compliance practices

B.1 Examination practices

C.1 The mutual agreement procedure

D.1 Definition and background

E.1 Introduction

F.1 Definition and concept of advance pricing arrangements

Chapter V Documentation

Introduction

Objectives of transfer pricing documentation requirements

B.1. Taxpayer’s assessment of its compliance with the arm’s length principle

C.1. Master file

D.1 Contemporaneous documentation

E.1. Master file and local file

Chapter VI Special Considerations for Intangibles

Chapter VI Special Considerations for Intangibles

A.2. Relevance of this chapter for other tax purposes

B.1. Intangible ownership and contractual terms relating to intangibles

C.1. Transactions involving transfers of intangibles or rights in intangibles

D.1. General principles applicable in transactions involving intangibles

Chapter VII Special Considerations for Intra-Group Services

Introduction

B.1. Determining whether intra-group services have been rendered

C. Some examples of intra-group services

D.1. Definition of low value-adding intra-group services

Chapter VIII Cost Contribution Arrangements

Introduction

Concept of a CCA B.1. In general

Applying the arm’s length principle C.1. In general

Chapter IX Transfer Pricing Aspects of Business Restructurings
Introduction

Scope A.1 Business restructurings that are within the scope of this chapter

Applying Article 9 of the OECD Model Tax Convention and these Guidelines to business restructurings: theoretical framework

Part I: Arm’s length compensation for the restructuring itself

Introduction

B.1 Accurate delineation of the transactions comprising the business restructuring: functions, assets and risks before and after the restructuring

D.1 Profit potential

E.1 Tangible assets

F.1 Whether commercial law supports rights to indemnification for the restructured entity under the facts of the case as accurately delineated

Part II: Remuneration of post-restructuring controlled transactions

Business restructurings versus “structuring”

E. Location savings

List of Annexes

Guidelines for Monitoring Procedures on the OECD Transfer Pricing Guidelines and the Involvement of the Business Community

B.1 Peer reviews

C.1 Peer reviews

Annex I to Chapter II

Sensitivity of Gross and Net Profit Indicators

Annex II to Chapter II

Example to Illustrate the Application of the Residual Profit Split Method

Annex III to Chapter II

Illustration of Different Measures of Profits When Applying a Transactional Profit Split Method

Annex to Chapter III

Example of a Working Capital Adjustment

Annex I to Chapter IV

Sample Memoranda of Understanding for Competent Authorities to Establish Bilateral Safe Harbours

Sample Memorandum of Understanding on Low Risk Manufacturing Services

Sample Memorandum of Understanding on Low Risk Distribution Services

Sample Memorandum of Understanding on Low Risk Research and Development Services

Annex II to Chapter IV

Guidelines for Conducting Advance Pricing Arrangements under the Mutual Agreement Procedure (MAP APAs)

APA B.1 Treaty issues

C.1 Introduction

D.1 Introduction

E.1 Record keeping

Annex I to Chapter V

Transfer Pricing Documentation – Master file

Annex II to Chapter V

Transfer Pricing Documentation – Local file

Annex III to Chapter V

Transfer Pricing Documentation – Country-by-Country Report

Template for the Country-by-Country Report – General instructions

Template for the Country-by-Country Report – Specific instructions

List of all the Constituent Entities of the MNE group included in each aggregation per tax jurisdiction (Table 2)

Annex IV to Chapter V

Country-by-Country Reporting Implementation Package

Model legislation related to Country-by-Country Reporting

Article 1 Definitions

Article 2 Filing Obligation

Article 3 Notification

Article 4 Country-by-Country Report

Article 5 Time for filing

Article 6 Use and Confidentiality of Country-by-Country Report Information

Article 7 Penalties

Article 8 Effective Date

Multilateral Competent Authority Agreement on the Exchange of Country-by-Country Reports

Section 1 Definitions

Section 2 Exchange of Information with Respect to MNE Groups

Section 3 Time and Manner of Exchange of Information

Section 4 Collaboration on Compliance and Enforcement

Section 5 Confidentiality, Data Safeguards and Appropriate Use

Section 6 Consultations

Section 7 Amendments

Section 8 Term of Agreement

Section 9 Co-ordinating Body Secretariat

Annex to the Agreement – Confidentiality and Data Safeguards Questionnaire

1. Legal Framework

2. Information Security Management

3. Monitoring and Enforcement

Competent Authority Agreement on the Exchange of Country-by-Country Reports on the basis of a Double Tax Convention (“DTC CAA”)

Section 1 Definitions

Section 2 Exchange of Information with Respect to MNE Groups

Section 3 Time and Manner of Exchange of Information

Section 4 Collaboration on Compliance and Enforcement

Section 5 Confidentiality, Data Safeguards and Appropriate Use

Section 6 Consultations

Section 7 Amendments

Section 8 Term of Agreement

Competent Authority Agreement on the Exchange of Country-by-Country Reports on the basis of a Tax Information Exchange Agreement (“TIEA CAA”)

Section 1 Definitions

Section 2 Exchange of Information with Respect to MNE Groups

Section 3 Time and Manner of Exchange of Information

Section 4 Collaboration on Compliance and Enforcement

Section 5 Confidentiality, Data Safeguards and Appropriate Use

Section 6 Consultations

Section 7 Amendments

Section 8 Term of Agreement

Annex to Chapter VI

Examples to Illustrate the Guidance on Intangibles

Annex to Chapter VIII

Examples to Illustrate the Guidance on Cost Contribution Arrangements

Appendix

Recommendation of the Council on the Determination of Transfer Pricing between Associated Enterprises [C(95)126/Final, as amended]

Organisation for economic co-operation and development

Keeping It Safe THE OECD GUIDE ON THE PROTECTION OF CONFIDENTIALITY OF INFORMATION EXCHANGED FOR TAX PURPOSES
ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT

ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT

Table of Contents
Introduction

Part I. Legal Framework to Protect the Tax Confidentiality of Information Exchanged

Part II. Administrative Policies and Practices to Protect Confidentiality

Part III. Recommendations

Part IV. Checklist

PART I.

Legal Framework to Protect the Tax Confidentiality of Information Exchanged

Box 1. Key Points: Tax Confidentiality Provisions in Treaties

Box 2. Key Points: Tax Confidentiality Provisions in Domestic Laws

Box 3. Illustrative examples

Box 4. Illustrative example

Box 5. Illustrative Examples

PART II. Administrative Policies and Practices to Protect Confidentiality

1. Introduction

Box 6. Key Points: Administrative Policies and Practices to Protect Confidentiality

Box 7. Illustrative Examples

Box 8. Illustrative Examples

Box 9. Illustrative Example

Box 10. Key Points:

Box 11. Illustrative Example

Box 12. Illustrative Example

Box 13. Illustrative Examples

Box 14. Illustrative Example

Box 15. Illustrative Examples

PART III.

Recommendations

I. Legal Framework

II. Administrative Policies and Practices to Protect Confidentiality

PART IV.

Checklist

ANNEX A.

ANNEX C.

Keeping It Safe THE OECD GUIDE ON THE PROTECTION OF CONFIDENTIALITY OF INFORMATION EXCHANGED FOR TAX PURPOSES

ANNEX B. Domestic Tax Confidentiality Provisions in Selected Countries

Taxpayers' Rights and Obligations-Practice Note

Table of Contents

Introduction

The basic rights

The basic obligations

Taxpayers’ charter

History

Compatibility

Contact

Action 1

Chapter 1 Introduction to tax challenges of the digital economy

Chapter 2 Fundamental principles of taxation

Chapter 3 Information and communication technology and its impact on the economy

Chapter 4 The digital economy, new business models and key features

Chapter 5 Identifying opportunities for BEPS in the digital economy

Chapter 6 Tackling BEPS in the digital economy

Chapter 7 Broader direct tax challenges raised by the digital economy and the options to address them

Chapter 8 Broader indirect tax challenges raised by the digital economy and the options to address them

Chapter 9 Evaluation of the broader direct and indirect tax challenges raised by the digital economy and of the options to address them

Chapter 10 Summary of the conclusions and next steps

Action 2

Neutralizing the Effects of Hybrid Mismatch Arrangements, Action 2 2015 Final Report

Part I Recommendations for domestic law

Table 1.1 General Overview of the Recommendations

Chapter 1 Hybrid Financial Instrument Rule

Chapter 2 Specific recommendations for the tax treatment of financial instruments

Chapter 3 Disregarded hybrid payments rule

Chapter 4 Reverse hybrid rule

Chapter 5 Specific recommendations for the tax treatment of reverse hybrids

Chapter 6 Deductible hybrid payments rule

Chapter 7 Dual-resident payer rule

Chapter 8 Imported mismatch rule

Chapter 9 Design principles

Chapter 10 Definition of structured arrangement

Chapter 11 Definitions of related persons, control group and acting together

Chapter 12 Other definitions

Part II Recommendations on treaty issues Chapter 13 Dual-resident entities

Chapter 14 Treaty provision on transparent entities

Chapter 15 Interaction between part I and tax treaties

Action 3
Designing Effective Controlled Foreign Company Rules Action 3 – 2015 Final Report

Chapter 1 Policy considerations and objectives 1.1.1 Deterrent effect

Chapter 2 Rules for defining a CFC

Chapter 3 CFC exemptions and threshold requirements

Chapter 4 Definition of CFC income

Chapter 5 Rules for computing income

Chapter 6 Rules for attributing income

Chapter 7 Rules to prevent or eliminate double taxation

Action 4

Limiting Base Erosion Involving Interest Deductions and Other Financial Payments Action 4 2015 Final Report

Chapter 1 Recommendations for a best practice approach

Chapter 2 Interest and payments economically equivalent to interest

Chapter 3 Who a best practice approach should apply to

Chapter 4 Applying a best practice approach based on the level of interest expense or debt

Chapter 5 Measuring economic activity using earnings or asset values

Chapter 6 Fixed ratio rule

Chapter 7 Group ratio rule

Chapter 8 Addressing volatility and double taxation

Chapter 9 Targeted rules Aim of targeted rules

Chapter 10 Applying the best practice approach to banking and insurance groups

Chapter 11 Implementing the best practice approach

Part II Elements of the design and operation of the group ratio rule

Chapter 12 Calculating net third party interest expense

Chapter 13 Calculating group EBITDA

Chapter 14 Addressing the impact of entities with negative EBITDA on the operation of the group ratio rule

Part III Approaches to address BEPS involving interest in the banking and insurance sectors

Chapter 15 BEPS risks involving interest posed by entities in the banking and insurance sectors

Chapter 16 Approaches to address BEPS involving interest in the banking and insurance sectors

Annex III. A An overview of capital regulation in the banking and insurance sectors

Action 5
Countering Harmful Tax Practices More Effectively, Taking into Account Transparency and Substance Action 5 - 2015 Final Report

CHAPTER 1 INTRODUCTION AND BACKGROUND

CHAPTER 2 OVERVIEW OF THE OECD`S WORK ON HARMFUL TAX PRACTICES

CHAPTER 3 FRAMEWORK UNDER THE 1998 REPORT FOR DETERMINING WHETHER A REGIME IS A HARMFUL PREFERENTIAL REGIME

CHAPTER 4 REVAMP OF THE WORK ON HARMFUL TAX PRACTICES: SUBSTANTIAL ACTIVITY REQUIREMENT SUBSTANTIAL ACTIVITY REQUIREMENT IN THE CONTEXT OF IP REGIMES

CHAPTER 5 REVAMP OF THE WORK ON HARMFUL TAX PRACTICES: FRAMEWORK FOR IMPROVING TRANSPARENCY IN RELATION TO RULINGS

CHAPTER 6 REVIEW OF OECD AND ASSOCIATE COUNTRY REGIMES

CHAPTER 7 FURTHER WORK OF THE FHTP

Action 6

Preventing the Granting of Treaty Benefits in Inappropriate Circumstances Action 6 2015 Final Report

Executive summary

Action 6 – Prevent treaty abuse

A. Treaty provisions and/or domestic rules to prevent the granting of treaty benefits in inappropriate circumstances

Model Tax Convention

Provision denying treaty benefits to a resident of a Contracting State who is not a “qualified person”

Charitable organisations and pension funds

Active conduct of a business

Discretionary relief

The term “dual listed company arrangement”

2 b) the profits attributable to that permanent establishment are exempt from tax in the first-mentioned State the tax benefits that would otherwise apply under the other provisions of the Convention will not apply to any item of income on which the tax in the third jurisdiction is less than 60 per cent of the tax that would be imposed in the first-mentioned State if the income were earned or received in that State by the enterprise and were not attributable to the permanent establishment in th

Departure or exit taxes

Action 7

Prevent the Artificial Avoidance of PE Status Action 7 – 2015 Final Report

Changes to paragraphs 5 and 6 of article 5

Paragraph 6

Making all the subparagraphs of art. 5(4) subject to a "Preparatory of auxiliary" condition

Paragraph 4

2. Fragmentation of activities between closely related parties

C. Other strategies for the artificial avoidance of PE status

Actions 8-10
Aligning Transfer Pricing Outcomes with Value Creation (EN/FR/ES)

INTANGIBLES A. Identifying intangibles

B. Ownership of intangibles and transactions involving the development, enhancement, maintenance, protection and exploitation of intangibles

C. Transactions involving the use or transfer of intangibles

D. Supplemental guidance for determining arm’s length conditions in cases involving intangibles

Action 11

Measuring and Monitoring BEPS Action 11 - 2015 Final Report

Chapter 1 Assessment of existing data sources relevant for BEPS analysis

Chapter 2 Indicators of base erosion and profit shifting

Chapter 3 Towards measuring the scale and economic impact of BEPS and countermeasures

Chapter 4 Towards better data and tools for monitoring BEPS in the future

Action 12

MANDATORY DISCLOSURE RULES ACTION 12 ‐ 2015 FINAL REPORT

CHAPTER 1 OVERVIEW OF MANDATORY DISCLOSURE

CHAPTER 2 OPTIONS FOR A MODEL MANDATORY DISCLOSURE RULE

СHAPTER 3 ІNTERNATIONAL TAX SCHEMES

СHAPTER 4 ІNFORMATION SHARING

Action 13

Transfer Pricing Documentation and Country‐by‐Country Reporting Action 13 ‐ 2015 Final Report

Chapter V of the Transfer Pricing Guidelines on Documentation

B. Objectives of transfer pricing documentation requirements

C. A three-tiered approach to transfer pricing documentation

D. Compliance issues

E. Implementation

Annex I to Chapter V

Annex II to Chapter V

B. Template for the Country-by-Country Report – General instructions

Annex IV to chapter V

Model legislation related to Country-by-Country Reporting

Multilateral Competent Authority Agreement on the Exchange of Country-by-Country Reports

Annex to the Agreement – Confidentiality and Data Safeguards Questionnaire

Competent Authority Agreement on the Exchange of Country-by-Country Reports on the basis of a Double Tax Convention (“DTC CAA”)

Competent Authority Agreement on the Exchange of Country-by-Country Reports on the basis of a Tax Information Exchange Agreement (“TIEA CAA”)

Action 14

Making Dispute Resolution Mechanisms More Effective Action 14: 2015 Final Report

Executive summary

I. Minimum standard, best practices and monitoring process – 13

Action 15

OECD/G20 Base Erosion and Profit Shifting Project Developing a Multilateral Instrument to Modify Bilateral Tax Treaties, Action 15 2015 Final Report

1. A multilateral instrument is desirable and feasible

2. The nature of the treaty-related BEPS measures will facilitate the conclusion of a targeted multilateral instrument, which could be further expanded at a later date

3. Next steps: Scoping the International Conference

Annex A

EUROPEAN COMMISSION

Brussels

Proposal for a COUNCIL DIRECTIVE laying down rules against tax avoidance practices that directly affect the functioning of the internal market

TABLE OF CONTENTS

EXPLANATORY MEMORANDUM

CHAPTER I GENERAL PROVISIONS

CHAPTER II MEASURES AGAINST TAX AVOIDANCE

CHAPTER III FINAL PROVISIONS

LEGISLATIVE FINANCIAL STATEMENT

LEGISLATIVE FINANCIAL STATEMENT

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