Outlined below is a general description of the relevant Country by Country Reporting (“CbCR”) notification information with respect to upcoming deadlines in the United Kingdom (“UK”), Bermuda and the Netherlands for firms that have constituent entities in these jurisdictions.
Please be aware that your firm may have additional CbCR notification requirements in other countries.
The UK has adopted the OECD Guidelines from Action 13, Base Erosion and Profit Shifting, and in particular, is requiring CbCR for all firms with global revenues above the threshold. This will have a significant impact on businesses, particularly where UK entities have an ultimate parent located in the United States or located in countries with no intention to implement the CbCR requirements.
This UK legislation has created a potential obligation for UK entities to notify HMRC in the UK before September 1, 2017. It is important that this notification is correct as it is a statutory obligation and the information will be used by Tax Authorities to identify their CbCR information sharing needs and obligations for the first CbCR reporting period.
This notification will inform HMRC with regards to the basis on which the CbC report will be filed. Qualifying firms with a December 31, 2016 year end will be within the UK rules, and in some cases, a CbCR filing must be made by December 31, 2017 or HMRC must be notified of the reasons why such a filing is not required. An example of when a filing may not be required is where the CbCR is being filed with another tax jurisdiction and HMRC will receive it under an information sharing agreement.
Consistent with OECD guidelines, if your firm’s consolidated multinational group revenue is greater than €750m for an accounting period starting after January 1, 2016 (hereinafter, an “MNE Group”), then there will be a requirement to file a CbC report.
In most cases, the ultimate parent entity of an MNE Group will be required to file the CbCR in its country of tax residence, and the CbCR will be shared automatically with tax authorities in other jurisdictions in which the MNE Group operates.
Where the country of tax residence of the ultimate parent does not introduce CbCR, or is delayed in the introduction of CbCR, then most other countries require the CbCR to be filed or shared with them under so called ‘surrogate’ filing arrangements. This is of particular relevance to US-headquartered firms since the US requirement to file CbCR is effective for reporting periods that begin on or after the first day of a tax year of the ultimate parent entity that begins on or after June 30, 2016. In certain circumstances, the UK regulations create a filing obligation for the top UK subsidiary/entity.
If the US ultimate parent entity of an MNE Group has or plans to make a voluntary CbCR filing to the IRS for 2016, then no separate UK CbCR filing will be needed. The law firm must file notice to this effect with the UK before September 1, 2017.
Under regulation 5 of the Bermudian CbCR Regulations, any Constituent Entity of an MNE Group that is resident for tax purposes in Bermuda needs to notify the Bermuda Minister of Finance and the Ministry of Finance (the “Authority”) if it is the Ultimate Parent Entity or the Surrogate Parent Entity of an MNE Group, no later than September 1, 2017 for reporting fiscal years ending on or before August 31, 2017. Thereafter, notification will be due the last day of the reporting fiscal year (December 31).
Pursuant to the International Cooperation (Tax Information Exchange Agreements) Bermuda CbCR Guidance issued in April 2017, Country-by-Country Reporting Amendment Regulations 2017, under regulation 5(1) if the Constituent Entity is neither the Ultimate Parent Entity nor the designated Surrogate Parent Entity of an MNE Group it does not need to file notice with the Authority. The notification is a one-time requirement and does not need to be repeated annually unless there is a change to the notification details.
Required notification is to be filed in English at the Minister’s electronic portal for the automatic exchange of information. The portal log-in link and notification form can be found at Bermuda's CbCR website. See 'enrolment form' under the 'Resources' section on the right-hand side of the aforementioned website. For more information, please visit: https://www.gov.bm/sites/default/files/V5Bermuda-CbCR-Guidance-wlb-7-Apr-17.pdf
Please note that Bermuda's regulations are unclear whether the notification requirement applies only to an Ultimate Parent Entity ("UPE")/Surrogate Parent Entity based in Bermuda or includes all non-UPE constituent entities. However, there is currently no mechanism in place for non-UPE Bermuda CEs to file a notification. As such, we have been advised by our colleagues at PwC Bermuda that is is their understanding that there is no need for a Bermuda subsidiary of a non-Bermuda parent to file notice in Bermuda.
Constituent Entities which are resident for tax purposes in the Netherlands and are part of an MNE Group to which the CbCR legislation is applicable are required to make a yearly notification via the Netherlands’ CbC notification portal identifying which of the entities within the MNE Group is the Reporting Entity.
This notification is obligatory for all Constituent Entities resident in the Netherlands. For practical purposes it is allowed that one Constituent Entity notifies on behalf of itself and all other Constituent Entities within the MNE Group which are resident in the Netherlands.
The CbCR notification for the Netherlands is due August 31, 2017. The notification form is to be submitted electronically at https://www.gegevensportaal.net/cbc/aanmelden/ and can be completed in either English or Dutch. Additional notification information is available at: https://www.gegevensportaal.net/cbc/faq/en/.
PwC’s US Law Firm Services Group can help your firm to understand the relevant notification to make in the UK, the Netherlands, or in Bermuda, as well as the information and relevant wording that should be contained as part of the disclosure. We can also help with the preparation of the CbCR using different technologies and risk assessment and filing.
Gary M. Pogharian
Partner, PwC US
Partner, Law Firm Services Tax Leader, PwC US
Tax Managing Director, PwC US
Director, PwC UK Tax Leader for US Law Firms, PwC United Kingdom
Tel: +44 7803858518
Tax Director, PwC US