BEPS Action Plan: Action 2 – Hybrid mismatch arrangements

The OECD’s second action point in the BEPS Action Plan is to “neutralise the effects of hybrid mismatch arrangements”. Our commentary, and links to content, on action 2 are included here.

 

Updates

 

21 February 2014

There has been much speculation about what will be in the OECD’s proposed Discussion Draft of recommendations on tackling hybrid mismatches but dates …

have now been announced provisionally by the OECD for publication of the draft (4 April), the deadline for comments to be made to the OECD (4 May) and a public consultation meeting at the OECD (15-16 May).

 

2 September 2013

Various countries (e.g. Denmark, Germany, UK) have in the past taken actions through domestic law provisions. These are likely to contribute to the …

design of what is considered best practice – and the OECD already has done detailed work in this area in identifying problems and possible solutions (see our bulletin on the OECD report on Hybrid Mismatch Arrangements of March 2012).

Hybrid instruments

  • The EU intends to adapt the ‘parent subsidiary directive’, as noted in The EC Action Plan of 6 December 2012.
  • This would, in particular, give effect to the political agreement reached in 2010 by member states in the Code of Conduct Group on profit participating loans (PPLs).
  • The EC plan aims to stop the directive requiring exemption from taxation of distributions received when they are deductible for tax purposes in the source country.
  • This could even result in a new approach with the directive specifically mandating a tax charge rather than permitting a relief in specified circumstances.
  • The main problem that has faced action on hybrid instruments is though that they are in practice difficult to define.

Hybrid entities

  • Hybrid entities are arguably easier to define in theory and identify in practice and consensus on how to deal with them might be more easily reached.
  • Although potentially of significant scope, short-term action in the US at the entity level (eg cutting back on check-the-box) is likely to be hampered though by political deadlock and the wider domestic tax reform agenda in the US.

 

26 July 2013

An interesting point of interest in this area is the extent to which the coherence of tax rules to produce a level playing field between MNCs and nationally-based entities …

has become a more important influence in some territories. MNCs should not, they suggest, have access to more sophisticated planning techniques than those entities operating solely within a domestic market. This line of argument clearly adds pressure for action against hybrids.

 

19 July 2013

As indicated in the Action Plan, the focus on hybrids is premised on the need to address gaps created by the interactions between domestic tax laws. The Plan states …

there is a need to create standards to establish international coherence in corporate income taxation. The action on hybrids in particular is explained by reference to the use of such instruments to achieve unintended double non-taxation or long-term tax deferral (e.g. by double deductions, or generating deductions without corresponding income inclusions).

The action point is multi-faceted and includes work on the Model Treaty and recommendations for domestic law change. Model Treaty provisions are to be developed to prevent undue benefits under treaties for such hybrid arrangements (presumably countering the ability of such instruments to access treaty withholding tax reductions) and various changes for domestic law are to be considered, primarily in relation to deductibility. The work on hybrids will be coordinated with the work on interest expense deduction limitations, CFCs and treaty shopping (see below). On hybrids in particular, the OECD presumably has a head start from its recent work culminating in its report on Hybrid Mismatch Arrangements, as discussed in our April 2012 Bulletin

The Action Plan calls for recommendations in relation to the Model Treaty and domestic law to be completed within one year, by September 2014.



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