5/17/2012PwC US Issues 2012 Tax Rate Benchmarking Study for Industrial Products and Services Companies
Study Highlights Effective Tax Rates (ETR) and Trends Based on Analysis of 324 Companies
Increase in Global ETR Reflects Economic Recovery and Reduced Losses
Tax Incentives on Rise as Companies Invest in Research to Differentiate and Drive their Businesses
NEW YORK, May 17, 2012 – The average three-year effective tax rates (ETR) through December 31, 2011 of industrial product (IP) companies was 26.3 percent, a 0.7 percent increase over the 25.6 percent ETR in the prior year, according to a new PwC US study. Many ETRs were lower than statutory rates, driven by the impact of foreign operations and tax incentives related to research and innovation. Companies based in the U.S. had higher ETRs than many of their global counterparts, while companies based in Canada and Germany, for example, reported lower ETRs. Clearly, the higher ETR results for U.S.-based companies are a strong example of why so many of these companies are focused on corporate tax reform. The prevalence of these factors, among others, is detailed in PwC's 2012 Assessing tax, a tax rate benchmarking study for IP and services companies across six sectors: aerospace & defense, chemicals, engineering & construction , industrial manufacturing, metals and transportation & logistics.
According to the report, the economic recovery for IP companies resulted in a decrease in the volatility of ETRs across the sectors as corporate earnings increased, although individual sector performance remained uneven. For example, during 2011, not one of the 46 chemical companies included in the study reported a loss in their audited financial statements.
“Volatility in the ETR among global IP companies moderated in 2011, as the recovery continued to take hold. This resulted in a rise in the ETR across multiple sectors,” said Michael W. Burak, U.S. and global industrial products tax leader for PwC. “We are beginning to see increased levels of investment spending as companies refocus on strengthening their products and competitive positions, earning tax incentives that provide a favorable impact to the ETR compared to the statutory rate. Furthermore, as emerging markets develop and companies increasingly expand into these territories, we expect more companies to benefit from the lower tax rates within developing countries.”
This year's edition of the report includes a special section focused on transfer pricing, a critical area of focus for IP companies, in part because of their expansion into emerging markets and the fact that, despite economic recovery, there is a continuing strong need for tax revenues by the relevant government authorities. The special report examines the impact of globalization, supply chain management, and merger and acquisition activity on transfer pricing considerations.
“Since IP companies are expanding into emerging markets, they must develop robust and defensible transfer pricing structures and policies. They must also deal with the growing number of jurisdictions that have adopted rigorous transfer pricing policies that, at times, rely upon inconsistent intercompany transfer pricing laws and standards,” continued PwC’s Burak. “Multinationals must also respond to more aggressive enforcement by tax authorities, a consequence of the attempt by many countries to prevent perceived abuses by taxpayers and a desire for increased revenues to reduce deficits. We are seeing these developments take place both in developed and emerging countries.”
A breakdown of PwC’s tax benchmarking analysis for the 324 IP companies in the study follows:
Aerospace & Defense – A&D companies, which were the least impacted by the economic downturn, generated an average three-year ETR of 27.4 percent. The most favorable drivers of ETR were tax losses and changes in valuation allowance, a result of improving economic conditions as losses incurred in previous years were used against current profits. Tax incentives were reported by the largest number of the companies in the sector, with 39 companies gaining an average benefit of 4.6 percent.
Chemicals – In 2011, many chemical companies continued their recovery from the economic downturn, achieving higher sales and earnings growth as a result of investment in high-growth emerging markets, joint venture acquisitions and deals, and global expansion to meet higher demand. The average three-year ETR of the chemicals sector was 26.3 percent, driven by foreign operations and the impact of joint ventures. For companies in the study, profits increased on average by 28.7 percent, and all companies were profitable in 2011, a picture not seen since before 2009.
Engineering & Construction – For the engineering and construction industry, 2011 remained a challenging year as the anticipated economic recovery stalled. However, while markets, especially in Europe and America, remained relatively weak, there were signs of stabilization. Rapid growth in Asia Pacific and Latin America demonstrated the shift in demand to emerging markets and contributed to the improved performance of many companies. The average three-year ETR of the sector was 24.3 percent, with tax incentives and the impact of foreign operations the most favorable drivers of the ETR.
Industrial Manufacturing – The industrial manufacturing industry experienced a recovery in 2011 during a volatile business climate with the average three-year ETR of the sector being 27.6 percent. For companies in the study, profits increased on average by 24 percent. The most common reconciling item, reported by 41 companies, was the impact of foreign operations, which reduced the ETR by 5.7 percent. This reflects the increasing significance of emerging markets for the sector. Tax incentives were the next most favorable driver, reflecting investment in innovation in the sector.
Metals – Many metals companies experienced substantial increases in the price of almost all commodities, mineral resources and energy in 2011. The average three-year ETR of the metals sector was 25.5 percent, and profits increased on average by 31.5 percent between 2010 and 2011. The most common tax reconciling item, reported by 26 companies, was the impact of foreign operations, which reduced the ETR by 2.6 percent, a reflection of increasing globalization in the sector, as demand for resources in emerging markets increased.
Transportation & Logistics – In 2011, the transportation & logistics sector faced slow global economic growth and high fuel costs. The average three-year ETR of the sector was 24.3 percent and remained relatively constant between 2009 and 2011. The most favorable driver of the ETR in 2011 was the use of losses as profits increased on average by 16.3 percent.
5/15/2012On Tuesday, May 15, Tax Executives Institute testified at an IRS public hearing on the FATCA regulations. TEI's testimony was presented by Michael J. Bernard of the Seattle Chapter, chair of TEI's IRS Administrative Affairs Committee. Mr. Bernard's testimony follows:
Statement
Of
Michael J. Bernard
Chair, IRS Administrative Affairs Committee
Tax Executives Institute, Inc.
Good morning, I’m Mike Bernard of the Microsoft Corporation, but today I’m testifying in my role as a member of the Tax Executives Institute, better known as TEI. Thank you for the opportunity to comment on the proposed FATCA regulations.
TEI’s members work for 3,000 of the leading corporations around the world, the vast majority of which are non-financial institutions. We therefore have a unique perspective on the implementation and administrative challenges of Chapter 4. Before turning to specific recommendations I have two overarching concerns. First, the regulations say little about issues relevant to non-financial institutions; as a result there are many areas in need of modification and clarification. And second, there is little awareness among non-financial institutions, and even their advisors, of their Chapter 4 obligations. We hope our written comments and testimony today will help remedy the first concern, which should then alleviate the second.
Turning to items of specific concern, the general definition of a financial institution includes any entity that accepts deposits in the ordinary course of a banking or similar business. The regulations then define a banking or similar business, in part, by reference to a list of eight activities, one of which is “accepts deposits of funds.” Because the list of activities constituting a banking or similar business repeats the general requirement that an entity “accept deposits,” there is a circularity problem that makes it unclear what purpose is served by the remaining seven activities. TEI recommends that the IRS clarify whether an entity that does not accept deposits, and yet engages in one of the other activities, would nevertheless be considered a financial institution.
TEI also recommends modifying this first definition of a financial institution to include a threshold requirement, so that an entity is not a financial institution unless 20 percent or more of its income derives from the list of eight activities that constitute a banking or similar business. Finally, TEI recommends providing a definition of “deposit” to preclude application of the rules to businesses engaged in leasing real or personal property, since such businesses routinely demand deposits from their customers.
Next, to clarify the exception to the definition of a financial institution for a hedging or financing center of a non-financial group, we have three recommendations: First, an illustrative list of “financing or hedging” activities should be added to the exception; TEI’s written comments include specific suggestions. Second, the regulations should adopt an objective test of when an expanded affiliated group is “primarily engaged” in a non-financial business, by referencing the group’s gross income over a certain period of time but excluding the income of group members that are “excepted NFFEs.” Finally, the exception should permit hedging or financing centers to provide de minimis services to unrelated parties in certain circumstances.
With respect to the exception for non-financial holding companies, TEI recommends first that the regulations define a subsidiary of such a holding company as a “downstream” member of the holding company’s expanded affiliated group, and second, that the phrase “substantially all of the activities” be objectively defined based on the holding company’s gross income.
Next, the regulations provide several exceptions to the definition of a withholdable payment. The primary exception is for payments for goods and other items in the ordinary course of a withholding agent’s business. In TEI’s view, the general definition of a withholdable payment, which includes US source FDAP income, should be consistent with the definition of FDAP income under Chapter 3 of the Code and not include most gains from the sale of property. Consequently, there would be no need for an exception for payments for “goods” in the ordinary course of business because such payments would not be subject to withholding under Chapter 4 in the first instance.
Alternatively, TEI recommends that all payments for “goods,” a narrower category than property, be excepted from the definition of a withholdable payment, regardless of whether the payment was made in the ordinary course of the withholding agent’s business. Such payments present a low risk of tax evasion and any additional compliance gained from requiring such payments to be in the ordinary course of business would be outweighed by the administrative burden on taxpayers required to prove that fact on audit.
The last exception I would like to address is for payments made to “active NFFEs.” First, the proposed regulations set forth a stand-alone definition of passive income of NFFEs, with limited cross-references to other provisions of the Code. Instead of a stand-alone definition, TEI recommends cross referencing the definition of foreign personal holding company income under subpart F, including the exceptions thereto. If the government believes the subpart F definition of foreign personal holding company income is over- or under- inclusive for purposes of Chapter 4, modifications could be made in the final regulations.
Second, the passive asset test requires that less than 50 percent of the assets held by an NFFE at any time during the preceding calendar year be assets that produce — or are held for the production of — passive income. Thus, an NFFE would be required to show on audit that at “all times” during the prior year, 50 percent or more of its assets were non-passive, an impossible burden. Consequently, TEI recommends that the asset test be modified to allow an NFFE to measure its assets based on an average of its assets at calendar or fiscal quarter-end. Or, even better, that the test should be abandoned altogether.
Finally, the proposed regulations provide no guidance on how to measure “50 percent” of an NFFE’s passive income or assets. Income might be measured under U.S. or foreign tax principles, or financial statement measures such as US GAAP, IFRS, local country commercial law, or as reported to the NFFE’s interest holders under some other method. Similarly, assets could be measured based on fair market value, book value, or adjusted tax basis under U.S. or foreign law. Since most NFFEs certifying their active status to withholding agents under this exception will have little familiarity with U.S. federal income tax principles, TEI recommends that NFFEs be permitted to elect the method by which they measure income and assets, as long as the method is consistently applied.
TEI understands that the government intends to issue FATCA-compliant forms later this year. If so, withholding agents will have little time to incorporate the forms into their internal processes before FATCA documentation must begin on January 1, 2013. In this regard, comment letters from the financial industry indicate that they will not be able to complete the work necessary to meet the January 1, 2013, effective date. If financial institutions will have trouble meeting this deadline, then it will likely be an insurmountable task for withholding agents that are non-financial institutions. In addition, under the current effective date timeline, information with respect to foreign financial institutions that have entered into agreements with the IRS will not be available until July 1, 2013, at the earliest, which will generally require withholding agents to ask for FATCA documentation from such payees twice. For these reasons, TEI recommends that the full documentation and due diligence rules of Chapter 4 only apply after January 1, 2014.
Alternatively, TEI recommends that the requirement to collect withholding documentation be delayed to coincide with the first date that foreign financial institutions can provide documentation that they are participating foreign financial institutions.
Thank you for the opportunity to offer TEI’s comments on the proposed FATCA regulations.
5/7/2012IRISH TAX INSTITUTE TO HOST TRANSFER PRICING MASTER CLASS (Oct. 24-26)
The Irish Tax Institute is hosting a Transfer Pricing Master Class and Global Conference in Dublin from Wed 24 - Fri 26 October 2012. Marlies de Ruiter, Head of the OECD’s Tax Treaty, Transfer Pricing and Financial Transactions Division will be the Keynote Speaker at the Conference.
About the Conference – “Transfer Pricing – The Master Class & Global Conference”
The aim of this meeting is to discuss developments in transfer pricing and the issues faced by policy makers, Revenue authorities, the corporate sector, and their advisers in a global context. The program has been designed to appeal to a cross-section of transfer pricing expertise from trainee, through middle/senior management, to Transfer Pricing Partners/Heads of Tax. The first two days are structured as a technical Transfer Pricing Master Class. The final day is a Global Conference which will consider the key issues and challenges facing all transfer pricing stakeholders globally.
The Speakers
Our international leading panel of speakers includes:
Marlies de Ruiter, Head of the OECD’s Tax Treaty, Transfer Pricing and Financial Transactions Division
Michelle Levac, Canadian Revenue Authority, Chair of OECD’s Working Party No. 6
Mark Carnduff, HMRC UK
Navin Jain, Cairn India Group
Eoghan Quigley, KPMG Ireland
Matthew Whipp, KPMG London
Patrick Cauwenbergh, Deloitte Brussels
Paul Reck and Gerard Feeney, Deloitte Ireland
Dan McSwiney, Ernst & Young Ireland
Gavan Ryle, PwC Ireland
Aamer Rafiq, PwC London
Location: The Gibson Hotel, Dublin, Ireland
Day 1 – Master Class – Wed 24 Oct 2012 – The Framework of Transfer Pricing
• Transfer Pricing & the Arm’s Length Principle
• Functional Analysis & Comparability Analysis
• Transfer Pricing Methods
• Transfer Pricing Documentation – A Practical Workshop'• Transfer Pricing Policy and Compliance - Developing, Implementing & Managing
Day 2 – Master Class – Thus 25 Oct 2012 – Applied Transfer Pricing
• Transfer Pricing & Intangible Property (IP)
• Treasury in the context of Transfer Pricing
• Transfer Pricing & Common Transactions - The Complete Workshop
Day 3 – The Global Conference – Fri 26 Oct 2012
• Transfer Pricing in a Global Context
• Risk Management
• Tax Authority Audits
• Dispute Resolution
• Current Thinking in Business Restructuring
Contact: jislam@taxinstitute.ie or phone 00353 1 6631 728
Price: Delegates can attend the whole event or the day(s) of their choosing —
1 day - €800
2 days - €1,500
All 3 days - €1,950
GEORGETOWN LAW SCHOOL OFFERS STATE & LOCAL TAX CERTIFICATE — DISTANCE-LEARNING OPTION
Beginning in Fall 2012, Georgetown University Law Center will make its Certificate in State and Local Taxation (SALT Certificate) available by distance learning to lawyers residing anywhere in the United States. Distance-learning students will participate in real time in classes streamed live from Georgetown classrooms. Archived recordings will be available to students forced by work commitments to miss a live class.
Attached is a description of Georgetown’s SALT curriculum and faculty. For information concerning admission to the SALT Certificate program, please see: www.law.georgetown.edu/prospective.html. For lawyers intending to commence their SALT Certificate studies in Fall 2012 via distance learning, the deadline for completing their applications will be July 15, 2012.
(from BNA)
India Government Delays GAAR for One Year, Shifts Burden of Proof to Tax Authorities
Posted May 07, 2012, 15:41 P.M. ET
NEW DELHI—Marking a big shift in its tax policy, India is postponing the introduction of the general anti-avoidance rule (GAAR) until the 2013-2014 financial year.
In addition, one of GAAR's principal features—that the onus of proof lies on the taxpayer—has been reversed and the tax authorities instead will be required to prove that a tax arrangement has been devised to avoid tax.
Finance Minister Pranab Mukherjee, in a May 7 announcement in Parliament, said that an independent expert would be added to the existing government committee that is looking into the implementation of GAAR to provide “greater clarity and certainty.”
The committee has met several times and Mukherjee said it will submit its report May 31. “To provide more time to both tax payers and tax administration to address all issues, I propose to defer the applicability of the GAAR provisions by one year. … It will now apply to the income of financial year 2013-14 and subsequent years,” he told members of parliament.
GAAR is being introduced under India’s wider tax reform, the Direct Taxes Code. Instead of dealing with specific instances of tax avoidance, GAAR is broader and deals with cases where the main purpose of a transaction is to gain tax benefits, whether it be tax reductions or tax refunds. It originally required the taxpayer to show that obtaining a tax benefit was not the “main' purpose” of the arrangement.
4/19/2012from Vertec
Redesigning Tax Systems is Essential to Supporting New Regulatory Environment, Says Former OECD Director Dr. Jeffrey Owens
Speaking at Vertex Exchange Europe 2012, Dr. Owens discusses the global challenges facing tax policy makers in a rapidly changing, post-recession business environment
LONDON, UK and Berwyn, PA – April 19, 2012 – Global tax policy makers and administrators need to redesign today’s tax systems to address new realties as the world exits the global financial crisis, according to Dr. Jeffrey Owens, retired Director of the Centre for Tax Policy and Administration at the Organisation for Economic Co-operation and Development (OECD). Dr. Owens recently shared his views on the challenges facing global tax policy makers as the keynote speaker at the Vertex Exchange Europe 2012 Conference on 17 April in London.
“As we continue to exit from the financial crisis, economies across the globe are facing double digit deficits and having to rethink how tax systems are designed and implemented,” said Dr. Owens. “However, just as important is finding ways of accomplishing this that also encourage entrepreneurship and investment, generate new jobs and help develop more energy-efficient economies.”
Dr. Owens noted that a rapidly changing global business environment has added to the complexity for both tax policy makers and companies alike. A shift from brick-and-mortar to service economies, the rise of global multi-national companies, a growing importance of intangible assets, and the rise of Asian prominence in the global economy make tax policy a moving target for everyone involved.
“While the rate of change in business and the larger global economy present significant challenges, they are also likely to bring about positive change in tax structure for everyone,” said Dr. Owens. “This comes in the form of a shift from a low level of trust and cooperation between policy makers, administrators and tax payers, to relationships based on commercial awareness, openness, responsiveness and the best interests of everyone involved.”
This year’s Exchange Europe conference, held annually by Vertex Inc., the leading provider of corporate enterprise tax solutions, was attended by corporate tax professionals, thought leaders and technology experts from across Europe. Sessions throughout the two day event explored the challenges of managing global indirect taxation and provided insight into strategic solutions to help mitigate risk and control costs.
“Vertex’s Exchange Europe conference has always provided attendees with unique perspectives on global indirect tax,” said Jeff Westphal, President and Chief Executive Officer of Vertex, Inc. “Dr. Owens’ insight into how the future of tax has been shaped – not only by economic factors, but by the larger trends in global business – was invaluable to this year’s attendees.”
This year’s conference also featured former British Olympic athlete and BBC TV and radio sports presenter Katharine Merry. Merry discussed how to approach challenges in life and work, how to evaluate performance and why teamwork is essential to success.
4/18/2012
The fourth installment in Vertex’s Future of Tax Operations series, titled "Restructuring Your Data Management Resources," was recently completed. Tax executives from US Bank and Transamerica discussed their real-world experience with the people and process aspects of tax data management. Transamerica discussed how its tax department staff was reorganized from being a siloed to a matrixed organization, and US Bank reviewed a recent tax data blueprinting initiative. Both efforts not only increased tax department collaboration and efficiency, but also improved data management.
You can download the webcast on-demand or the whitepaper version, whichever is more convenient.
4/16/2012from NPR
To create The Ultimate NPR Workout Mix, Morning Edition has talked to athletes, a musician, a dancer, a mailman and others about the music that makes them move. The right workout music can also help ease stress — and that's an asset for the man who has perhaps the most "taxing" job in the country.
Doug Shulman is America's top taxman, the commissioner of the Internal Revenue Service. Shulman says he loves his job, even though he knows he's not the most popular man in the country.
"The IRS, in many ways, is a misunderstood agency. When people hear the letters, 'I-R-S,' sometimes they have a negative connotation," Shulman says. "But 80 percent of Americans get an average of a $3,000 refund. So most people actually have a very pleasant experience with us, and our customer service ratings are very high. When you really talk to people, they don't have a beef with the IRS."
Nonetheless, if you're stressing over getting your taxes done before midnight Tuesday, Shulman has some songs that might inspire you to keep slogging through that return — the same songs that keep him going when he's on his exercise bike. His first pick is "Black Horse and the Cherry Tree" by KT Tunstall. "It's a real rockin' song. It picks you up. It's got a great rhythm and beat, and it just keeps me moving in the morning — because sometimes I have to get up real early to do my workout," Shulman says.
Shulman says he has also made the songs "I Try" by Macy Gray and "Beautiful Day" by U2 part of his morning routine.
"You hope every day's going to be a good day in the morning when you wake up. When you're IRS commissioner, most days are good days, but occasionally you get some surprises."
4/13/2012(from BNA)
EU Extends U.S. GAAP Recognition for Three Years, Delaying IFRS Convergence
Posted April 13, 2012, 13:29 P.M. ET
BRUSSELS—Despite continually expressing frustration that the United States has not adopted international financial reporting standards, the European Commission approved retroactive rules April 13 that extend—for three years—mutual recognition to United States generally accepted accounting principles and EU-listed companies that use them.
The decision also applies to other foreign countries using GAAP, including Japan and India.
According to the EU regulations, approved April 13, the European Commission said the extension “is necessary to provide legal certainty to issuers from the relevant third countries listed in the EU, and to avoid the risk that they might to have to reconcile their financial statements with IFRS. The provision of retroactivity thus alleviates any potential additional burden on the issuers concerned.”
Based on EU rules approved in 2007, the ability of the European Commission to give mutual recognition to U.S. GAAP expired Dec. 31, 2011. The EU executive body had hoped the deadline would have forced countries such as the United States to adopt IFRS by 2013, but the path to global adoption of IFRS was complicated by the 2007-08 financial crisis, as well as the EU euro zone sovereign debt crisis.
4/11/2012(from Tax Prof Blog)
David Foster Wallace — author of the celebrated novel Infinite Jest and among the most acclaimed American fiction writers of his generation — killed himself in 2008 at the age of forty-six. He left in his office hundreds of pages of The Pale King, an unfinished novel set in the fictional Peoria, Illinois, regional examination center ("REC") of the Internal Revenue Service ("IRS" or "the Service") in 1985. Although many chapters of the novel were seemingly complete, Wallace left no indication (other than what could be gleaned from the chapters themselves) of the order of the chapters (pp. vi-vii). Michael Pietsch, who had served as the editor of Infinite Jest, assembled the chapters into a surprisingly coherent — although more or less plotless — novel, and the book was published to considerable critical acclaim in early 2011.
As assembled by Pietsch, The Pale King focuses on a dozen or so income tax examiners — including a fictional David Foster Wallace — working at the Peoria REC. The examiner's job is to decide whether income tax returns (selected for the examiner's consideration by computers) should be referred for audit (Chapter Twenty-Seven). The novel describes how the featured employees came to work for "the Service," as it is generally referred to by its employees (p. 244), and how they deal with the boredom of their jobs, as well as their attitudes toward the Service and toward the tax system itself. Although some of the chapters can stand on their own as self-contained stories, the book as a whole has no real plot. Some of Wallace's notes, included by Pietsch as "Notes and Asides" at the end of the book, suggest Wallace had plans for an overarching plot, based on a power struggle between IRS traditionalists favoring the continued use of human examiners and reformers wanting to replace human examiners with computers, but only a few hints of this conflict appear in the published novel. It is possible that even a completed version of The Pale King would have been essentially plotless. As Pietsch points out in his "Editor's Note," one of Wallace's notes describes the book as "a series of setups for things to happen but nothing ever happens."
I am not a literary scholar or critic, nor am I pretending to be one in this Review. Rather, I am an academic tax lawyer (and a former temporary employee of the Internal Revenue Service), and the Review is written from that perspective. For many creative works, a review of this sort would be inappropriate. It does not much matter, for example, whether the film version of The Wizard of Oz accurately depicts life on a Kansas farm in the 1930s. But The Pale King is different. The book devotes a significant percentage of its pages to detailed explanations and discussions of tax civics, tax policy, and tax administration, and it is every bit as serious about those topics as Moby-Dick is about whaling. The Pale King is not merely set in a tax administration facility; it is also, in very significant part, about taxes and tax administration. It is a Moby-Dick of taxes, aiming to educate its readers about a highly specialized field of endeavor, and using that field of endeavor to explore some of the profoundest themes. On the assumption that a whaler’s review of Moby-Dick would have served a useful purpose, I offer this tax lawyer’s review of The Pale King.
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