In an effort to address tax issues surrounding the ever-growing digitalization of the global economy, the OECD proposed blueprint plans called Pillar One and Pillar Two. Though they were introduced  in October 2020, implementation remains a challenge. 

In this episode of the GILTI Conscience podcast, Europe tax head James Anderson and London tax partner Alex Jupp join our hosts to discuss how the U.K. may be the first out of the gate in Europe to see some traction with potentially carrying out the Pillars. 

From international M&A compliance to political challenges and technical hurdles, James and Alex detail many of the uncertainties the Pillars face in today’s climate, both in the U.K. and across the EU.

Tune in to find out more about the future of Pillars One and Two in the international market. 

💡 Featured Guests 💡

Name: James Anderson

What he does: As head of Skadden’s European tax practice, James  Anderson counsels on the full range of public capital markets transactions. Under his leadership, the firm’s European tax team has received numerous accolades for their work across numerous transactions.

Organization: Skadden

Words of wisdom: “We're at the beginning of a formation of a new universe, and […] it's a chance for [newcomers] to shine if you can get out ahead of the curve knowing the rules better.”

Connect: LinkedIn

Name: Alex Jupp

What he does: Mr. Jupp is a London tax partner who advises a wide variety of clients in transactional and non-transactional matters on U.K. and cross-border tax matters.

Organization: Skadden

Words of wisdom: “I would love for there to be a huge lobbying effort to say, ‘If you bring in Pillar One, can you get rid of DPT?’ That would be fantastic.”

Connect: LinkedIn

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GILTI Conscience is a podcast by Skadden, Arps, Slate, Meagher & Flom LLP, and Affiliates. Skadden’s tax team is recognized globally for providing clients with creative and innovative solutions to their most pressing transactional, planning, and controversy challenges. The insights and views presented in GILTI Conscience are for general information purposes only and should not be taken as legal advice for any individual case or situation. The information presented is not a substitute for consulting with an attorney, nor does tuning into this podcast constitute an attorney-client relationship of any kind.

This is GILTI Conscience. Casual discussions on transfer pricing, tax treaties and related topics. A podcast from Skadden that invites thought leaders and industry experts to discuss pressing transfer pricing issues, international tax reform efforts and tax administration trends. We also dig into the innovative approaches companies are using to navigate the international tax environment and address the obligation everyone loves to hate. Now your hosts, Skadden Partners, David Farhat and Nate Carden.

Hey everybody. Welcome back to another episode of GILTI Conscience. As always, Nate Carden here with David Farhat, Stefane Victor. Mon is still out on leave. So we're joined by Mayte Quinn, who is one of our associates in our DC office. Going to serve as guest hosts today as well as Alex Jupp and James Anderson, two of our UK colleagues. Tell us a little bit about your practices and then we'll jump into our topic today, which is going to be the Pillars and the UK.

Alex, do you want to go first?

Happy to. Hi everyone. Alex Jupp. I'm a UK tax partner based in London. My practice is fundamentally concerned with anything to do with multinationals, whether that's on the deal front, on the disputes front, on the advisory front, that's what I do, that's what I live and breathe. So this particular topic is absolutely on point for me.

And this is James. I similarly have a cross border practice, although I probably would say I focus more on private capital rather than public capital. But as with Alex, very much affected by these delightful Pillars.

Well, all six of our regular listeners know what I think of the Pillars and so we don't need to rehash that. But one thing I have noticed is that we hear a lot about it in the US, we hear a lot about what's going on in the European Union, but Alex and James, where do does the UK stand with respect to the Pillars?

So the Pillar Two answer actually in the UK is much easier than the Pillar One answer. Pillar Two, we have actual legislation draft published now for consultation. It runs to a paltry 116 pages. The explanatory notes are as helpful as ever, and that is only includes the income inclusion rule. So anything else is not out there yet. Although the consultation that the revenue published and indeed the responses do suggest that the under tax payment rule and indeed potentially the minimum domestic tax are still on the cards as far as the revenue's concerned.

Timing-wise, proposed implementation has slipped slightly by that six months or so to accounting periods starting after the end of December 2023. So in practice 24 onwards for in scope UK related multinationals.

What's motivating the UK to be the first mover in Pillar Two?

Or maybe a better way to put it, why are you the way you are?

We're the good pupils in school? This has always been true. I think we tend to gold plate things. When we were in the European Union, we were famous for fighting directives tooth and nail all the way through the European Parliament, the commission. We hated a lot of the stuff.

But I guess because we would see ourselves as advocates at the rule of law at the moment, the directive or anything else became mandated. We set about triple goal plating it, Mayte. So I think we've got a tradition in the treasury and as Alex said, it's been seen in the massive drafting of the Pillar Two bill is to go out there first and strong and hope everyone catches up. And I use the word hope deliberately.

So a couple hundred years ago we decided that we didn't like the way you ran things and broke away. You then decided that Europeans didn't like the way they ran things so you broke away. So some of our listeners may not exactly understand what has to happen in order for this to become law in the UK. What's the next step?

Well, the next step for the Pillar Two legislation is formal inclusion as part of the draft finance bill, which comes out early autumn time. That then goes through a number of readings in Parliament in both the junior and the senior houses of Parliament and then gets passed with Royal Ascent at some point during the course of usually June or July of next year. Once the policy decision has been taken, it tends to be a fairly streamlined process. It is very difficult to get the policy makers to change their minds.

So Alex, what question, given that the UK has started this sprint, what happens along this sprint if the whole thing falls apart on the OECD side?

Yeah, that's an excellent question. I mean the UK so far has not addressed that at all to my knowledge in any of the papers. It would be an interesting question to put to the treasury officials at the next conference that we go to. I don't see them giving anything other than a, "We're going to do it anyway," answer, whether that is cutting off their noses to spite their face is entirely possible. But I don't at the moment see that there would be a change of direction by the treasury unless something pretty significant to were to take place.

The Europeans seem to be fairly bent on getting something through. Timing would be the main issue there I suspect. And then who knows whether they'll start to rethink whether unanimity is really the requisite threshold for tax related changes.

So on that point, we've had the conversation on the US side basically saying, what if everyone else gets there and we don't. So kind of the opposite question to you guys. What if the UK gets there and everyone else doesn't? What does that mean?

I don't think anyone's modeled that to be honest. I think their general working assumption seems to be that some will get across the line and will they follow the commitments to implement. Whether that includes the US or not is a subject of a much debated subject amongst you guys and many others, of course. I struggle to see that at least some of the European jurisdictions would not go it alone, for instance, if the director were to fail.

I was going to say that I think there would be quite a lot of egg on face in Europe if Britain having left the European Union goes ahead and implements something, which the European parliament and the commission are very strongly in favor of and the Europeans don't. So I agree with Alex a hundred percent that you'd see the bigger nations certainly, I mean the government for about the next four years, so they probably won't be able to, but France and Germany probably could. I think you'd find countries like Ireland and Hungary happily lagging.

So I do think that the independent approach would prevail, but it's a nightmare. I mean David, if you think about it, we obviously Skadden do a lot of M&A. And can you imagine if you are a UK headquartered business and you're in scope, or you might be actually on the fringes of being in scope as the UK has posited it, and you're having to figure out an acquisition which you want to make over the next year, two, three. Clearly your bank is trying to model the value, the increase of value of that target and you don't know a few things.

One is, is that entity going to be in a jurisdiction where rules have been passed on Pillar Two? So you don't know what the ETR of the actual target might be. Will it be effectively tipping you over the threshold? Will there be any adjustment in the local jurisdictions' rules to allow it to be compliant with Pillar Two? So it's a pretty messy environment if you are a UK M&E, UK called it M&E. And let's face it, there aren't that many of them that aren't owned by the US or China. But there are those entities that are probably struggling a little bit to think through the post-tax impact in jurisdictions which may or may not introduce penalty.

So I have a question about the process. Can EU jurisdictions move independently regarding Pillar Two or must the EU agree unanimously?

They could implement their own domestic rules if they wanted to. There's nothing to stop them doing that. The whole reason that unanimity is required to implement a EU wide new set of tax related rules is fiscal sovereignty. So each jurisdiction has to make the positive choice to join in. If they want to implement their own rules, they're perfectly open to do so.

Yeah.

Help me understand the relationship between that and what, once upon a time at least, was called free movement of capital within the European Union because it makes some sense to say that there's still separate countries, but on the other hand I thought there were meaningful limitations on the ability of one country to effectively tax the operations of a company that chooses to set up in another country, which I think is basically what Pillar Two would do.

Yeah, so that's what I was going to say. I mean, if you do have independent action and you have countries trying to move, this is probably why they wanted the directive to be honest. But if you have countries trying to move unilaterally to implement, you've got the four freedoms of the European Union to consider, including the one you mentioned. And you've got at the same time a very vigilant commission and a pretty aggressive court. You get France and Germany trying to implement and then countries that haven't maybe seen as giving state A subsidies, or France and Germany in their domestic rules start to look at how to define things like qualified refundable tax credits, which are a crucial element of Pillar Two as you know to talk about whether the right rate is applied or not.

And there's a challenge by another country saying, "Well, the choice of QRTCs were unlawful aid." So I think it's a total mess, but I come back to the point I think we all agree it would be very embarrassing if the UK managed to pass this and the European Union did nothing even on an independent country basis.

So James, if I'm following, you're saying no matter what happens, there's a good chance that's chaos?

Yeah, and actually, now you said chaos. I think I just wanted to tease out one thing about the whole Pillar endeavor. Pillar One and Pillar Two. I used to run the 400 meters at school and I hated it. And the reason I hated it was you can run 200 meters quite well and then the third hundred is just about doable. But the last hundred meters, as you get closer and closer to the finishing line, it gets longer and longer. And I think that's what's happening with this Pillar process. And you've seen it in the business committee that advises the ACD.

As you get closer and closer to the date of implementation, more and more people are thinking, "Hey, we actually have to think about this stuff. It's going to happen?" And the more people think about it, the more problems you discover with it. And I think the word chaos is a good one. Leaving aside political travails of other countries like the US. I just think if you look at things like M&A compliance, teams building in M&Es, it's hard enough to hire tax professionals without having a sudden demand for five extra people to monitor the Pillars.

I start asking questions at the start of the running, so I don't need to get to that last 400 before I start asking real questions about what I'm doing. But I can relate.

To keep with the running analogy. So as the deadline approaches and more hurdles crop up, are those hurdles more political challenges or are they technical issues that need to be ironed out?

I mean, you've introduced hurdles. This wasn't a 400 meter hurdle race, but you've made it worse, Stefane. Leaving aside politics, I don't know if anyone's read the letter that the committee, which represents business at the OECD published earlier this year, but they worked through all the different problems, and this is a committee which the OECD supports and campaigns.

So if you work through all the detail there, you get the sense that the OECD's going to hear great policy guys, but you've got an awful lot of work to do. They even flagged inconsistencies with the objectives. They spotted in the model rules that the objectives aren't even being met. Then you've got the global south kicking in and saying that the amount A calculation on Pillar One might be disrespectful to them and there's a whole bunch of UN committees meeting to produce technical concerns.

So I just think this really toxic mix of politics, global recession, EU problems, threat of litigation, companies just not able to cope. I think it does. I don't think it threatens the existence of the project, but I think it definitely puts it back 1, 2, 3 years.

And in the meantime you have, well chaos again. You have some jurisdictions that have implemented. Let's say they manage to implement Pillar One. Others which don't and which bring in their friendly DSTs again. There's never going to be a perfect world where everyone has Pillar One or no one has Pillar One, I think.

Where does Pillar One stand in the UK? We started with Pillar Two because I think most people view it as at least a little bit more on the horizon. But how are you thinking about Pillar One over there?

There is, in theory, policy level commitment to implement Pillar One in the form that the OECD recommends. There's nothing out there in terms of active consultations as yet. And I think that's probably because the theory at least is that this comes through a multinational instrument that folks can sign up to. I have not heard any suggestion whatsoever of if there is a Pillar One that the UK will not sign up to it.

If you view Pillar One as a replacement for DSTs, how is the DST viewed and various other similar taxes that the UK has decided to implement? Are those politically popular? Will people be happy to see them go? Will they go ... Many questions. Where do those stand?

I don't think it really features on the radar. I mean DST, ORP, which I know about, DPT, all these weird and wonderful attempts by the UK to catch up with Germany, which introduced its own versions several decades ago. They don't seem to feature in the ... I mean, we've got a current debate going on between two pretty hopeless candidates to be the leader of this country and no one mentions these kind of taxes, which are revenue based and quite potentially valuable. No one talks about those. They're talking about cost of living crisis, they're talking about, at best, corporation tax rates.

So I don't see it getting political support or negativity either way. And so I guess there isn't really a political discussion around those. My hunch, and I'm interested in what Alex has to say here is that the UK's sitting happy with its own DST and we'll just rock on. I don't think we were pressurizing the OECD to get on with it and get the treaty out there. Although, obviously it hopes it will. I think it's that the treaty is looking to be signed or available for signature during 2023.

Yeah, I agree with that. I would love for there to be a huge lobby. Just moving off DST and moving on to DPT for a second. I would love for there to be a huge lobbying effort to say, "If you bring in Pillar One, can you get rid of DPT?" That would be fantastic.

In theory, you should be able to do that, right? But of course DPT doesn't only apply to the multinational to the in-scope multinationals within Pillar One. So then would you need DPT to come in for all the rest or do you just keep it for everyone? I expect you end up keeping it just for everyone. But then presumably none of the DPT amounts fall within any of the carve outs or exclusions, so you get a double taxation, then you have to resolve all of that through the dispute resolution mechanism and it gets frightfully complicated quite quickly.

We're talking about all this chaos and all these elements that can cause confusion, as if we don't have enough already. How are we to maneuver all of this as advisors and taxpayers? Something we've talked about on the podcast in the past; it seems that jurisdictions are falling out of love with the treaty system and falling out of love of the way we used to do things. The arms' length standard seems to be not cutting it anymore. How do we deal with all of this chaos where you have different jurisdictions at different levels of implementations for the Pillars, different DPTs, DSTs, and other kinds of taxes, political issues, you've got the economic issues? How do we navigate that? What do we think about what's a practical strategy to try to make it till we get to some sanity?

So if you're asking us as advisors, I think you have to pick which role you want to play with your client. I think there's sort of three roles as I see it. One is the one that I think we as lawyers are less well suited to, which is helping multinationals get their compliance game together. And that's going to be more, I would say, down to the big four and down to the modelers. But I suppose we can help. And we do think about how a multinational would go about assessing its exposure around the world under Pillar Two. Less so Pillar One, because it's quite specific. But I mean, Pillar Two, you can have conversations with your clients, but I think there's a whole compliance game which we are aware of clients now having to think about have to be in place within the next couple years.

The second and third roles I think are more meaningful, which is trying to spot gremlins in the proposals and just flagging them up early. I mean, I don't know how much you guys have gone into this, but there's a whole deferred tax nightmare there, particularly where the deferred taxes rules, the model rules that were published last December discuss how they're going to be either considered when considering the effective rate or brought back into tax at the 15%. I mean, that to me, is an absolute disaster show in the drafting. And you can help with the lobby, but equally, you can help talk to your clients and say, "Look, I think you should be thinking about this. Or any reorganization you're doing, these are the pointers really to have on your radar as relevant within the next few years."

The third thing is a much more interesting, I suppose in day to day lives which is the deals we're doing. I'm sitting quite smug thinking about this when talking to funds because funds seem to be getting a better ride than multinationals. There's no consolidation across different portfolio companies under a fund. And as you probably know, regulated funds are subject to quite a good carve out now from Pillar Two. But if you're talking to a multinational that doesn't have that and they're in scope, then you have got to look at contractual protections, JV documentation, what happens when Pillar Two does come in? I've mentioned deferred tax liabilities and deferred tax assets.

One of the joyous things that the UK, in its great wisdom has done in its proposal is, I don't know if you spotted this, but it's made UK entities jointly liable for any of the other taxes that are imposed abroad. UTPR or IRR debts that are charged for foreign entities. So how do you draft for that? How do you consider in a tax covenant if your target is such an entity and then joins your group? How are you going to allocate risk where the vending jurisdiction doesn't have a UTP liability initially or has a different version of it? I mean, there's a whole bunch of, I mean, I hate to say mundane because they're so difficult, but they're incredibly now problems because you might be negotiating a deal which the acquisition is going to still be getting integrated in a year, two, three times.

So those second and third areas, I think the problems flagging and the drafting of any tax covenants and JB documentation in a world where Pillar Two is a reality. I think those are how, I as an advisor, would be addressing it. But Alex, why don't you weigh in and see how you are playing this one.

Yeah, I agree with that. I mean, it's unfortunately topic that we all need to think about as part of our day to day lives. Now, whether it comes into play or not. You can't go about thinking about how to structure a deal or restructure a multinational group without at least taking into account the knowable stuff. You just have to do that.

But it's funny that you all talk about it as something mundane or an unfortunate reality because for me as a young practitioner, "I'm thinking this is amazing. I get to draft some new language and some things that people are ..."

Yeah, it's a good point. It's not the right way...

Exactly. And so this is my language, I get to own it.

Yeah, yeah, no, it's fair Mayte. And look, I should have said quotidian, day to day I would say not mundane as in it's our bread and butter, but I guess you're right. It's quite exciting bread and butter, especially for a young practitioner, like you coming into this in the beginning. I mean the world that you are seeing form, we're at the beginning of a formation of a new universe and absolutely you should be excited by it. I don't mean to downplay that.

It's a chance for people like Mayte, you and your peers to shine. I mean, if you can get out ahead of the curve knowing the rules better, because everyone else is being lazy and they're waiting for this to happen. I mean, if you can get out there.

Like private equity, equity groups, they want to know, does it give them a pricing advantage because they don't have to worry about the application arguably of Pillar Two. Can they bid better than a multinational? That's a great conversation to have. And if you're distinguishing yourself that way by having that conversation or talking about who they might sell to. That might change because they might not be able to sell to a group which is going to take them over the threshold, 750 million Euros a year set of revenue. These are great conversations to be having with your clients and you'd look proactive and foresightful.

I think also thinking about some other practice areas in which the rules can have different impacts. I work a lot with insurance companies and there's certain considerations that are going to be affecting insurance companies differently than some other kinds of companies. And like you're saying, it's that being proactive, looking at how the rules may be affecting them differently and whether you want to be the one reaching out and asking about lobbying or whatever it is. Obviously maybe not for the US because we're not loving these anyway. But I don't know. For me it's a very interesting time to be a young attorney. And for my younger listeners, there's this thing that's popping up in my head. I don't want peace, I want problems. And maybe Stefane's the one that knows what I'm talking about.

Well, every time we mention chaos on the podcast, all the tech partners start to, they get a little grin on their face because that's how we get our work.

Not me. I'm broken. I need peace. I need peace, not problems.

It's all about perspective. Where you are on the path.

One question though, in the peace, not problems vain is what about the peace makers? And by that I mean the competent authority folks that are at least nominally charged with resolving these kinds of disputes.

We're praying for them, Nate, we're praying for them.

Every day. But as we well know, there are certain elements of UK taxation that revenue believes are not subject to competent authority. There are some that shall remain nameless on the US side that also people believe are compatible with US treaties, but maybe not subject to competent authority negotiation.

Trying to find my mute button.

What do you think, Alex and James, happens on the treaty front if the UK as seems not crazy right now, goes forward with Pillar Two while the rest of the world lags behind,

I suspect that the UTPR might get delayed even further beyond the current schedule. We don't even have the draft legislation out yet. Yes, the UK said that the UTPR would be coming in, but the reality is that you can easily implement the various bits of it in a relatively piecemeal fashion. And you don't necessarily even have to implement the UTPR.

The jurisdictions that would care about the UTPR, there may or may not be those with which we have solid treaty relationships anyway. So maybe it's a question of thinking, "Well, we'll cross that bridge when we come to it, and in the meantime we have plenty of other things to be getting on with anyway."

I suppose that depends on what you think of the treaty relationship with the United States. But in all events, clearly they're going to have things that they're going to have to wrestle with. Everybody has to model this out. It's a great time for new advisors who are trying to figure out what's going to be market practice. But if I'm sitting out there as a head of tax of a UK multinational looking at this landscape, wondering if my country is going to put me at a disadvantage relative to private capital, relative to companies that are headquartered elsewhere. What is the short version of the advice to that UK multinational?

Well, the short version is lobby for delay, long grass. It could be a new government within the next two or three years. Literally a new government, not just another version of the conservative party, and it'll get slow tracked as a result because there'll be other constitutional crises on the horizon. That would be my short version of the advice. I can't think a UK group would want this, or welcome it, or see this as an advantage to doing if the rest of the world isn't doing it.

I would slightly tongue in cheek say, this is inevitable in the UK so you've got to go and convince everyone else to do it. So you take our Navy and you take the Navy to the doors of the reticent, let's say.

That didn't work out too well for you all way back when.

Yeah, wouldn't be the first time.

It worked okay for a while, right? There's going to have to be a degree of consensus that folks come to here. I mean, it can't work otherwise. If the nations of the world or some of the nations of the world at least didn't think that there would be a sufficient degree of consensus, why would they have bothered to go through all the pain with the OECD and signing up to all of the inclusive framework papers that have come out? It feels odds to me that folks would go along. Most folks, let's say, would go along with the hassle of doing all of that without a concrete intention of doing something. Now, whether that something matches up with what everyone else is doing, who knows?

Yeah. Just to be clear, I don't mind waiting until the rest of the world's ready. I do think a multinational wouldn't want to be just subject to a new UK domestic tax rules, which prioritize UK being the best boy or girl in the class.

Last question. If you could tell the designers of Pillar One or Pillar Two, take your pick, one thing to change or improve based on what you've seen happen in the UK and your effort to design the rules, what would you tell them?

Pillar One, to me, needs a lot more work on working out to me, the tracking. I'd like to focus a lot more on the IP address problem. I think I would definitely want to improve how the ... Because I see this as just a source of massive dispute until the end of time, working out the allocation keys to different markets, especially markets where, say in Africa where they claim greater allocations. I think we need to spend a lot more time on designing that tracking approach and being a bit more tech savvy about how companies can gather the right data for market activity. That's where I think it's worth spending a lot of more time and improvement actually if Pillar One's going to work properly.

Yeah, my immediate reaction is don't do it, but maybe that's not viable anymore.

That's one thing to change.

Alex, James, thanks for joining. Mayte, thanks for joining as a guest host. May your future be filled with problems, not peace. To everyone out there-

My husband is not happy that you just said that.

To everyone, may your future be filled with work problems and not work peace. To everyone out there, thanks for listening. Take care.

Thanks all.

Thank you for joining us for today's episode of GILTI Conscience. If you like what you're hearing, be sure to subscribe in your favorite podcast app so you don't miss any future conversations. Skadden's Tax Team is recognized globally for providing clients with creative and innovative solutions to their most pressing, transactional planning and controversy challenges. Additional information about Skadden can be found at skadden.com.