The Base Erosion and Profit Shifting (BEPS) Action Plan adopted by the OECD and G20 countries in 2013 recognised that enhancing transparency for tax administrations by providing them with adequate information to assess high-level transfer pricing and other BEPS-related risks is a crucial aspect for tackling the BEPS problem.
The BEPS Action 13 report (Transfer Pricing Documentation and Country-by-Country Reporting) provides a template for multinational enterprises (MNEs) to report annually and for each tax jurisdiction in which they do business the information set out therein. This report is called the Country-by-Country (CbC) Report.
To facilitate the implementation of the CbC Reporting standard, the BEPS Action 13 report includes a CbC Reporting Implementation Package which consists of (i) model legislation which could be used by countries to require the ultimate parent entity of an MNE group to file the CbC Report in its jurisdiction of residence including backup filing requirements and (ii) three model Competent Authority Agreements that could be used to facilitate implementation of the exchange of CbC Reports, respectively based on the:
The Convention on Mutual Administrative Assistance in Tax Matters (the "Convention"), by virtue of its Article 6, requires the Competent Authorities of the Parties to the Convention to mutually agree on the scope of the automatic exchange of information and the procedure to be complied with. Against that background, the Multilateral Competent Authority Agreement on the Exchange of CbC Reports (the "CbC MCAA") has been developed, based on the Convention and inspired by the Multilateral Competent Authority Agreement on Automatic Exchange of Financial Account Information (the "CRS MCAA") - concluded in the context of the implementation of the Common Reporting Standard. In addition, two further model competent authority agreements have been developed for exchanges of CbC Reports, one for exchanges under Double Tax Conventions and one for exchanges under Tax Information Exchange Agreements.
The purpose of the CbC MCAA is to set forth rules and procedures as may be necessary for Competent Authorities of jurisdictions implementing BEPS Action 13 to automatically exchange CbC Reports prepared by the Reporting Entity of an MNE Group and filed on an annual basis with the tax authorities of the jurisdiction of tax residence of that entity with the tax authorities of all jurisdictions in which the MNE Group operates.
In March 2016, the OECD released its standardised electronic format for the exchange of CbC Reports between jurisdictions – the CbC XML Schema – as well as the related User Guide.
- List of CbC MCAA signatories (PDF)
- Text of the MCAA on the Exchange of Country-by-Country Reports (PDF)
The Country-by-Country Reporting requirements form one of the four BEPS minimum standards. Each of these minimum standards is subject to peer review in order to ensure timely and accurate implementation and thus safeguard the level playing field. All members of the Inclusive Framework on BEPS commit to implementing the Action 13 minimum standard on CbC reporting, and to participating in the peer review.
In February 2017, the OECD released the terms of reference and methodology for the peer review of the Action 13 minimum standard for CbC reporting: BEPS Action 13 on Country-by-Country Reporting, Peer review documents, approved by the Inclusive Framework on BEPS. The peer review will be conducted by an ad hoc group comprising delegates of both Working Party 6 and Working Party 10, under the aegis of the Inclusive Framework, in accordance with these terms of Reference and methodology. All members will participate on an equal footing.
The terms of reference are broken down into three aspects, which capture the key elements of the minimum standard:
i. The domestic legal and administrative framework;
ii. The exchange of information framework;
iii. Confidentiality and the appropriate use of CbC Reports.
The methodology sets out the procedural mechanisms by which jurisdictions will complete the peer review, including the process for collecting the relevant data, the preparation and approval of reports, the outputs of the review and the follow up process. The methodology contemplates collecting the data points relevant to the peer review by using standardised questionnaires, sent to the reviewed jurisdiction as well as the peers (i.e. the other members of the Inclusive Framework on BEPS).
As jurisdictions have moved into the implementation stage, some questions of interpretation have arisen. In the interests of consistent implementation and certainty for both tax administrations and taxpayers, the OECD has issued guidance to address the following five key questions.
The Inclusive Framework on BEPS has released information on the domestic legal frameworks for CbC reporting around the world. This information provides a high level snapshot for tax administrations and MNE Groups as to the first reporting periods, availability of surrogate filing including in the parent jurisdiction, and local filing.
- 27/01/2017 - Seven more jurisdictions sign tax co-operation agreement to enable automatic sharing of country-by-country information (BEPS Action 13)
- 05/12/2016 - OECD releases further BEPS guidance on Country-by-Country reporting and country-specific information on implementation
- 21/10/2016 - Next step towards transparency in international tax matters: Five new jurisdictions sign tax co-operation agreement to enable automatic sharing of country-by-country information
- 30/06/2016 - First meeting of the new inclusive framework to tackle Base Erosion and Profit Shifting marks a new era in international tax co-operation
- 29/06/2016 - New steps to strengthen transparency in international tax matters: OECD releases guidance on the implementation of country-by-country reporting
- 12/05/2016 - A new boost to transparency in international tax matters: 6 new countries sign agreement enabling automatic sharing of country-by-country reporting
- 20/04/2016 - Bermuda joins agreement to automatically share BEPS country-by-country reports
- 22/03/2016 - OECD releases standardised electronic format for the exchange of BEPS Country-by-Country Reports
- 04/02/2016 - Senegal takes key steps towards improving tax transparency
- 27/01/2016 - 31 countries sign tax co-operation agreement to enable automatic sharing of country-by-country information
Base Erosion and Profit Shifting (BEPS) refers to tax planning strategies that exploit gaps and mismatches in tax rules to artificially shift profits to low or no-tax locations where there is little or no economic activity, resulting in little or no overall corporate tax being paid.
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The Action 5 Report is one of the four BEPS minimum standards. Each of the four BEPS minimum standards is subject to peer review in order to ensure timely and accurate implementation and thus safeguard the level playing field. All members of the CFA Inclusive Framework on BEPS commit to implementing the Action 5 minimum standard, and commit to participating in the peer review.