After a slow start, the Pillar Two initiative has gained momentum across the globe.“GILTI Conscience” hosts David Farhat, Nate Carden, Stefane Victor and Eman Cuyler spoke with Vikram Chand, a professor at the University of Lausanne, to discuss the latest Pillar Two developments and implications for international taxation.

The conversation delves into the widespread adoption of Pillar Two, including in Europe, Asia and low-tax jurisdictions. They explore how the European directive has played a significant role in triggering the implementation of these rules by various countries, as well as the objectives and complexities of Pillar Two. Tune in to gain valuable insights into the evolving landscape of international taxation.

💡 Featured Guest💡

Name:  Vikram Chand

What he does:  Dr. Vikram Chand is an associate professor of law at the University of Lausanne (UNIL) Switzerland. He also serves as the program director of UNIL’s Executive Program in Transfer Pricing, the managing editor of the Kluwer International Tax Law Blog and an international tax trainer for the OECD.

Organization:  University of Lausanne

Words of wisdom: "We could expect Pillar Two to come into the legislation of a lot of European member states in 2024 at maximum by 2025. … Historically all the low tax countries like Switzerland or Hong Kong or even Jersey, they have announced adoption of the Pillar Two initiative."

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.

Hi, everybody. Nate Carden here once again with David Farhat, Stefane Victor, Eman Cuyler. This is GILTI Conscience. Today we're going to revisit Pillar Two. We're joined by Vikram Chand, professor at the University of Lausanne. Vikram, welcome to the show. What's going on with Pillar Two? What are the latest updates?

Thanks, Nate, for this question. A lot of updates on the Pillar Two side. To put it across very simply, many, many countries are signing up to the Pillar Two initiative. If you take the common law space, you have UK, which has already released the draft legislation. And in addition to UK you have Canada, New Zealand, as well as Australia, who have already launched draft consultations. Within the European Union, the European directive has already been passed on Pillar Two, so we could expect Pillar Two to come in actually into the legislation of a lot of European member states in 2024, maximum by 2025.

In Asia, a lot of countries are signing up again to the Pillar Two initiative. For example, Japan, Korea, Malaysia, most likely Indonesia. Maybe in the future, India, too. And within the African Union, the African Tax Administration has already released a draft legislation for Qualified Domestic Minimum Top-Up Taxes, which is an integral part of the Pillar Two system, not on the Income Inclusion Rule, not on the UTPR, but on Qualified Domestic Minimum Top-Up Taxes. So that's just a global update. But in addition to all these countries historically, all the low tax countries like Switzerland or Hong Kong or even Jersey, they have announced adoption of the Pillar Two initiative.

So Vikram, what happened? Last I remember, folks were kind of pessimistic as to if this would take a hold and move forward. What happened to have this turn where now it seems to be a universal acceptance of this, outside of the US?

I think a lot of countries were interested in adopting this legislation already, but what really triggered so many countries to move ahead right now is the European directive. Since all the European member states agreed to this directive and now the directive is coming out, we see that around 27, 28 European member states will be introducing these rules. All the rest of the world, outside the US, is actually going to follow.

Why is Europe so hot on this? What's the overall dynamic?

If you look into the countries which are actually pushing for minimum tax rules, apart from the US, which already had the US GILTI, it was actually Germany and France and some other deadlocked countries within the European region too, or the big countries as I like to call them. They were pushing for this initiative and well, it's a success now that these countries got what they wanted.

But what was the primary concern that they had in the first place? Things seemed to be going reasonably well, at least as I see it, for a lot of these countries. They were economically successful. What's the problem that they're ultimately trying to solve? And does Pillar Two really solve it?

The problem that they were trying to solve was initially to combat remaining BEPS issues, whatever that meant. Nobody knows what the remaining BEPS issues were, but the way the project has progressed and developed, it's quite obvious it acts as a tool to restrict tax competition among member countries. But does it achieve this objective of restricting tax competition? Or let's say it's restricting tax competition by creating a floor of 15%, but is this project actually achieving that? On one hand, on the face of it, you can just say yes, it's achieving a minimum floor of 15%.

But on the other hand, there are some provisions within the Pillar Two model rules which still permit countries to continue with tax incentives, and they are basically known as Qualified Refundable Tax Credits. So right now, there's a big debate outside the US, I guess within the US also, is how can you reshape your existing tax incentives or how could you come up with new tax incentives and you make them compatible with something known as the Qualified Refundable Tax Credit system in the Pillar Two rules so that you can still continue offering tax incentives to large multinational taxpayers as well as small and medium enterprises.

So on the one hand, on the face of it, it looks like the project will achieve its goal. But when you take a deep dive into the rules, you see that you can still achieve a very low tax rate as long as the incentives that are being offered by governments are compatible with the Pillar Two framework.

So is it fair to say then that Pillar Two is not really about getting rid of tax competition generally, it's just reshaping tax competition to the playing field that certain countries like, where they can pick winners and losers?

For me, the answer is yes. What Pillar Two is doing is shifting the tax competition landscape. You don't compete on the rates anymore, you compete on the kind of incentives which countries can actually design and, once again, as long as they are qualified in nature. Now the question is who's going to certify whether these incentives are qualified or non-qualified? But once again, it has to be certified by the OECD's Inclusive Framework through the peer review mechanism, which has been taking place since a long period of time, whether it's in the BEPS Action 5, which dealt with harmful tax regimes, BEPS Action 6, which dealt with treaty abuse. There was several peer review mechanisms that the OECD came up with. All this qualified nature of these rules will also be discussed in through this peer review mechanism. A lot of power will also be shifted back to the OECD's Inclusive Framework to decide whether or not a country has an appropriate tax incentive regime or not.

We talked about problems that Pillar Two is designed to fix, and we're kind of talking about does it fix those problems or does it do something completely different? And you mentioned these lingering issues that BEPS 1.0 didn't address. Do you think the tax community or the international community as a whole gave BEPS 1.0 enough time to work, gave folks enough time to work through those principles to see if they really worked or do you think there may have been just a rush to BEPS 2.0?

Honestly, countering tax competition wasn't even on the BEPS agenda. Because if you look into BEPS Action 5, which introduced a substantial activity requirement, there was a clear statement in this Action 5 report which said that the objective of BEPS Action 5 is not to dictate a country what the tax rate should be, it's just to ensure that countries have the appropriate substance or they have regimes with the appropriate substance. There was never this motive to restrict tax competition.

And actually the only pending BEPS issue was on BEPS section one, the Pillar One project, which apparently is not going anywhere at this stage because a lot of academics... I'm still fascinated by the Pillar One project of the OECD, I have to confess, with the Amount A system, but a lot of academics in the European region, they've already said they've declared this project to be dead. But the discussions keep progressing at the level of the OECD and recently, some new estimates were released by the OECD saying that Pillar One is actually going to reallocate much more than that was initially imagined, almost double. You're talking about 200 billion US dollars or something like that, if I remember correctly.

That was the remaining BEPS issue, which was on reallocation of taxing rights, but we don't know whether that project is going to be successful or not at the end of the day.

Vikram, back to your point about the certification process and the review panel for credits and other Pillar Two implementation rules. Tell people who may not be as familiar with the way European domestic regimes work, how does that overlap with European domestic law? So if I'm a company in Europe and I think the Inclusive Framework has made a mistake, I think that the credits that I'm getting should be treated as qualified. Who do I complain to?

Let's just take a few steps back here. Now when you're talking about tax incentives, now tax incentives can be actually income-based incentives or expenditure-based incentives. But now income-based incentives, incentives which you see in developing countries. Just to give you a few examples, Indonesia, India, a lot of African countries, they just have income-based incentives, which says that, if you have a profit, we will just exempt you from taxation or your tax rate is not going to be the full rate, is just going to be half. You just pay taxes on half the amount. That's very simple and easy to administer, when you talk about income-based incentives.

On the other hand, the developed countries in the world, including the US, which I assume have expenditure-based incentives typically in the form of tax credits. What are tax credits, just for people outside the US to know, is that you can use these credits to set it off against your normal corporate income tax payable or it can be used for payment of any other taxes. Many countries currently, like the UK and France, they have expenditure-based incentives linked to R&D expenses. What does that mean? That means that if the taxpayer, a French company or a UK company, they have let's say 100 of expenses on research and development, then a certain percentage of that, let's say 10% was the tax credit that the taxpayer's entitled to.

So 10 would be the credit and then assuming at the end of the day you have a corporate income tax liability of 15, you can use that 10 to set it off against your corporate income tax liability. The issue with R&D tax credits is that they are quite difficult to administer because you really need to develop a big list to understand what kind of expenses are eligible R&D expenses and these incentives from the government side too, they take a lot of time to administer.

Now, when the countries start offering all these incentives, there's going to be a body who has to certify whether or whether not these credits are qualified in nature, and that's the OECD's Inclusive Framework. De facto, you give substantial power back to the OECD's Inclusive Framework to decide whether a country has a good incentive or a bad incentive or not. And as you all know that the biggest funders of the OECD, including the US, are the developed countries, so they will start dictating tax policy or tax incentives which other countries will need to adopt.

Is that typically allowed under European domestic law? Because in the United States, for example, there would be serious constitutional issues if the Congress said, "Hey, we're going to allow these unelected people at the OECD to issue binding rules" that taxpayers couldn't challenge.

Within the EU context, European law takes precedence over the national law of different member states. So European law ranks at a higher pedestal than national law. And here, the European legislators, the EU Commission, have passed a directive and the directive is actually binding on all member states. So all the member states will need to comply with what's written in the directive and, I would say, 85% of the directive is a copy paste of the OECD model rules. Essentially, all European member states are bound by the directive right now.

But what about the Inclusive Framework determinations? In other words, has the directive also delegated to the Inclusive Framework, "We'll follow you no matter what you do"? And is that permitted under European law?

That's the big debate right now, within the European Union, is what is the legal status not only of what you just mentioned, but also the legal status of the OECD's commentary on the Pillar Two rules. What is the legal status of that? If you look into the European directive, the European directive says that all the the rules of which have been outlined or written in the directive, they need to be interpreted in light of the OECD commentary. There are some references to the OECD commentary in the directive itself. The directives somehow gives a lot of power to the OECD commentary on the Pillar Two rules, but when it comes to determinations of whether a rule is a qualified rule or not, whether it's a Qualified Domestic Minimum Top-Up Tax or it's a Qualified Refundable Tax Credit, so on and so forth, it looks like the directive has given the powers to the OECD's Inclusive Framework, but to what extent that it can be done with the European Law Framework, there's still an ongoing debate on this topic.

And will this get litigated in European courts? Should we stay tuned? Or how does this work out?

That's also a big question right now because one question that was raised in a discussion recently in another panel I was a part of was to what extent can taxpayers challenge the directive provisions before the European Code of Justice? Sometimes the directive says one thing, but the way the directive has been transposed into the member state's national law, there could be slight differences or variations. The question then becomes in can the taxpayer basically tell the national member state that the rules you didn't really apply, weren't in conformity with the directive. So then they start challenging the national law rules before courts. It's well possible. Yeah, it could well be possible that they do that. Because if you look into the recent administrative guidance that was released by the OECD, a lot of discretion is given to member states, or let's say to the OECD's Inclusive Framework, when it comes to implementing these Qualified Domestic Minimum Top-Up Taxes. A lot of discretion has been given.

If I'm listening to you, it sounds like not much is going to change. It's just going to get more complex.

It's going to get super complex, yeah. Because the way you have to calculate this 15% effective tax rate, it's quite complex and like I mentioned to you, you have one stream of the IIR and UTPR stream and the other stream is QDMTT. There are a lot of similarities between both these streams of rules, but at the same time now, after reading the administrative guidance, you can see there's so many differences. And one classic example there is of allocation of CFC taxes. Not talking about the US GILTI for a minute, but if you see for IIR and UTPR purposes, there was an agreement among countries that whenever a state of residence applied its CFC rule and collected taxes for its CFC through the CFC rule in its home state, these CFC taxes paid in the home state, they had to be pushed down for the ETR calculations of the sub.

One question that I struggle with is in the design of the rules and curious as to your perspective on QDMTT design, why doesn't QDMTT just turn off IIR and UTPR? As I read the rules, it's not designed to operate that way. Why not?

Right now there's a big debate within the Inclusive Framework of something known as a QDMTT Safe Harbor. Just recently the OECD released a report on safe harbors where they spoke about temporary safe harbors and permanent safe harbors, but in the future, they are contemplating on introducing something known as the QDMTT Safe Harbor. If my understanding is correct of what they mean by a QDMTT Safe Harbor is just that if you have, let's say a German parent with a sub in Singapore, and the Singapore sub is exposed to QDMTT or Singapore has an appropriate QDMTT in place, then the German parent will not have to do any IIR calculations for this sub in Singapore. The top-up tax will be deemed to be zero when for the purposes of the Income Inclusion Rule. That's something that may come out in the near future QDMTT safe harbor.

Until the German government decides that Singapore's Domestic Minimum Top-Up Tax isn't qualified, and then they assert that the German company owes additional tax.

Yes, so that's the problem. Once again, what is the legal nature of all these qualifications? Because some qualifications could be done by the OECD's Inclusive Framework or whether a country has a qualified rule or not, but is that really binding on the local tax administration, the German tax administration in our simple example here? I don't know the answer to that. I don't think so, actually. How can something which is being decided in Paris be binding in Germany? Definitely not in the court system.

What's the impact of all of this to the current treaty system in treaty networks?

There's a big debate right now which, obviously you all have heard, is whether the Pillar Two rules breach tax treaties. And now when I talk about the Pillar Two rules, I'm just here talking about the Income Inclusion Rule and the Under-taxed Profit Rule. I think a lot of governments, they are of the opinion that the Income Inclusion Rule does not really conflict with tax treaties because it's just like a super CFC rule. But at the same time, we... Actually, I wrote a very big paper with a couple of co-authors where we said that probably the Income Inclusion Rule can also conflict with tax release. I don't know how successful that will be, but yeah, we've written a big paper on that. But clearly, when you talk about the Under-taxed Profit Rule, that's extraterritorial taxation for me. For me, it's just obvious this conflicts with tax release.

There was a recent paper I read of an American scholar who said this is like an excise tax that's outside the scope of tax treaties. That's not true. This is not true. It's a income tax. It's a tax on corporate profits. It's just a book minimum tax. It's a substantially similar tax for the purpose of tax treaties. So if it's covered by tax sweeties, then I'm pretty sure that once countries start enacting the UTPRs or want to enforce the UTPRs, a bunch of taxpayers, they're just going to go to court and say, "This is extraterritorial taxation and treaties basically prohibits us extra editorial taxation."

It looks like, just from our discussion so far, there are a lot of questions that still need to be answered. But for in-house lawyers listening and just multinationals generally, what should they be doing right now? Should they try to assess their compliance for the future? Should they try to determine if they're in scope now or if they'll be in scope in future? Or should they just wait and see until all of this is sorted out to start planning?

To be honest, I think all your clients or multinationals in general, it's not only multinational here, what we are talking about, just to let you know. You're talking about private owned businesses, which have more than 750 million of turnovers. Recently, a structure was shown to me through foundations and the question was whether this structure which was run through a foundation or trust was caught by the Pillar Two rules. And the answer was yes, it was caught by the Pillar Two rules. It's not only for multinationals, it's also for large privately owned businesses who, of course, they need to start doing the assessment because these rules are going to come in. Like it or not, these rules are coming and the European Union has passed the directive, and more and more countries are adopting these rules in 2024 and they will already be enforced in a lot of countries.

I know that some countries are pushing... Well, they've argued that the effective date should be pushed maybe to 2024, 2025. Is that likely or do you think that this is going to be happening in the near future?

For the Income Inclusion Rule, it seems less likely because more a lot of countries will introduce it from 2024 onwards. More likely for the UTPR. Anyhow, the rules were supposed to come in from 2025, but now after seeing this letter from the US Republican Committee, that's a question mark. I don't know how many countries will seriously in introduce UTPR in the national law because that also means somehow taxing the US companies based on the Pillar Two calculations, assuming these US entities are under-taxed in nature below the 15% rate, according to the Pillar Two calculations.

But I don't know in reality how many countries would want to tax US companies through the UTPR. I don't know how many countries would like to risk a trade war with the US. So for the UTPR, it's still difficult to tell when it'll be introduced. But within the EU directive, they've committed for first of 2025, so time will tell. I cannot give you a precise answer to this question, to be honest.

So Vikram, another high level question. We're talking about potential trade wars, we're talking about complexity, we're talking about rules that aren't put out by the court or unable to handle in court. Who benefits from all of this?

I think a lot of governments are just going to collect money on this project, but at the same time, what are they going to do with the money? They will just give it back to the taxpayers, in one way or another. At least the countries which were friendly towards the taxpayers. Probably countries in which you see that the relationship between taxpayers, the Chinese wall between... Let me not call it a Chinese wall. It's a wall between taxpayers and tax administrations. Probably in those countries, the tax administrations will be happy to get some extra revenues. But in lot of tax-friendly jurisdictions, countries, you would see government coming up with schemes trying to give it back to the taxpayers in one way or another. So this becomes a bit circular in nature, in my humble view.

To go back to the treaty discussion and an issue that's always near and dear to my heart, competent authority and dispute resolution. What does that do for the current framework? I know there's some kind of discussions about what could potentially come into, but how does this impact the current competent authority framework? If we've had some discussions that this may violate a treaty or that we think this definitely violates treaty, how does that framework come into play here, with Pillar Two? Is this something you think they just won't touch? Or is it going to be kind of on the table of competent authorities to have these discussions around some of these rules?

When you think about Pillar Two rules, they are domestic law rules. Now, domestic law rules, which will be implemented in domestic tax law. Of course at the same time countries have tax three with each other. The question is can any Pillar Two issues be resolved with the existing tax treaties? But if you look into mutual agreement procedure article, it says Article 25-1 of the OECD model of the US treaty networks, you would say that 25-1 only results treaty-related issues.

So when you have a withholding tax issue with domestic withholding taxes 35, the treaty says 10%. Or whether there's interpretation issue with respect to the LoB clause or the saving clause or the firm establishment definition, all these issues aren't surprising. All these issues are caught within the scope of tax treaties. But this Pillar Two staff are domestic law issues. If one country disagrees with the top of tax calculations made by another country, I don't think this can be solved under Article 25, which deals with the mutual agreement procedures. Is it 25 in the US model, also?

Yep, 25.

Okay. Yeah, it cannot be solved because these are not treaty-related issues. These are all domestic law issues. All these Pillar Two issues, on top of tax calculations, they're outside the treaty network. So what is being proposed right now by the OECD... They released the Tax Certainty document, and in the Tax Certainty document, they spoke about dispute prevention for GloBE rules and dispute resolution for GloBE rules. On the dispute prevention side, they reinforced the ICAP project, the US is a part of this ICAP project, and essentially they said two kinds of ICAPs can be designed. One is you can integrate the GloBE rules in the existing ICAP process, or whether you come up with a independent GloBE Pillar Two ICAP process for dispute prevention.

Well, that would be a welcome development. But the practical reality is that developing countries are not really a part of this ICAP project. So you just have a bunch of developed countries and the US as well as some other... Let's say, it's the developed countries who mostly participate in this ICAP. Developing countries, at least some tax administrations I spoke to about ICAP, they don't even know what ICAP is. They don't even know what that is. So on the dispute prevention side, sticking that to the rest of the world, I think it would be challenging. But at the same time, you can develop some nice ideas. You can leverage on the existing ICAP mechanism and develop a certain model for dispute prevention, which is welcome for taxpayers. Anything at this stage is welcome for the taxpayers, because there's going to be so many problems with these rules, so much litigation around these rules. Somehow it seems to be undermined at this stage, but when I read the rules and when I'm teaching these rules to taxpayers, tax administrations, or even my students, they themselves say, "A crazy amount of disputes can arise under these rules."

That was in the dispute prevention side. Then on the dispute resolution side, there are two options that are being contemplated more seriously. One is to open up a multilateral convention because the nature of disputes here could be bilateral or multilateral in nature. Or a pure domestic dispute resolution mechanism. Both options are being currently discussed at the level of the OECD, but the recent documents which were released in the public domains indicate that the most favored route is the multilateral convention, by taxpayers and by large associations. They favor this route. But if this route is not possible, because many countries may not sign up to a multilateral convention, then probably they'll have to go for the domestic dispute resolution mechanism, which could actually also be fine for the taxpayers. They get something. Maybe it's not the most, it's not the best thing, but something is better than nothing at this stage.

Going back to the Article 25 discussion, I think you're right on article on 25-1. And then 25-3, it's typically reserved to the competent authorities. What about 25-2 in taxation not in accordance with the treaty. Could someone try to squeeze this in there, or is that still...

Yeah, 25-1 and 25-2, they go hand in hand and they talk about this becoming a treaty interpretation issue. In a paper that we had written a long time ago, we basically said that all treaty conflicts, for example, compatibility of UTPR with tax treaties, that can really be challenged on Article 25-1 because that's a treaty issue we're talking about. Compatibility of UTPR with Article 9 of tax treaties or Article 7 of tax treaties or Article 10-5 deals with taxation of undistributed profits. It says you cannot tax undistributed profits of companies. You can actually challenge all your IIR, UTPR rules under this route. And you said there's a conflict with treaty provisions, then you go in for MAP and then possibly for arbitration. That can be done. But pure GloBE Top-Up Tax calculation disputes, that seems to be outside the scope of tax treaties.

So it's about how you kind of slice the issue you put in front of the competent authority, to an extent?

Yeah. For example, if tomorrow Korea introduces the UTPR and start taxing US multinationals, the first thing I guess you guys can do is you can start the Article 25 MAP and say this is a treaty override. Because treaty override issues can be brought within the Article 25. And then you say if the Koreans, they don't accept the MAP, then possibly then you can go for arbitration.

Before we wrap it up, thanks a ton for joining. One last question from my perspective, which is where do you think this goes in 12 months? Do we see UTPRs being enforced or does everybody back down and rely on a combination of QDMTT and IIR?

Yes. What we will see in the future is the rise of QDMTTs, to be honest. This is what a lot of countries will do. And then on the tax competition side, they will have the QRTCs, they will try to see how can we build up things, how can we remodel our existing incentives or come up with new incentive ideas and stick it within this umbrella of QRTCs. The QRTC provision itself, they may undergo a substantial change. That's not what the OECD is currently working on. They're busy with the technical issues right now, but this is something for the future where they will try to police tax incentives. This is pure policing of tax incentives. So QDMTTs and QRTCs seems to the future, possibly the IIR.

UTPR, I'm really skeptical about countries actually trying to collect top-up taxes through the UTPR. I think the UTPR was honestly just squeezed in to scare countries to adopt IIRs and QDMTTs. But if some country tries to enact the UTPR and actually tries to collect taxes through a UTPR, I'm sure that taxpayers will start challenging this before court saying, this is treaty override. For me, it's obvious it is a treaty override. The chances of you winning or you representing taxpayers and the taxpayers winning seems quite high for me, when it comes to a UTPR challenge. Less probably with a IIR challenge. It's still possible, less possibly, but under UTPR, it's just obvious for me.

You heard it here again, UTPR, mutually assured destruction. Never designed to work.

Well, Vikram, thank you again so much for joining. This has been a great conversation. I had a lot of fun, and hopefully we can have you back to talk about some of these things as they develop. But thanks so much for the time. We really appreciate it.

Yes, we should definitely do another one on transfer pricing and Pillar Two rules, because we are supposed to speak about that today, but you had to speak about other things. That's fine.

We can definitely pick this up later.

Most definitely.

Exactly.

Stay tuned for part two.

Exactly. Thanks, all, once again.

Thank you, 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.