International cooperation dominating cross-border M&A tax landscape
The Taxand 2017 Global Guide to M&A Tax provides guidance on the M&A tax climate across 37 jurisdictions and an overview of continuing and emerging trends that reflect a changing international consensus on the allocation of tax burdens and experiments in new tax policy.
The guide highlights how multilateralism has been a key trend over the last year, borne out of wider changes in the international tax landscape, such as the implementation of the OECD’s Base Erosion and Profit Shifting (BEPS) initiative.
In addition, the guide shows the potential for US tax reform to provide a further shake-up to the global M&A landscape, not least in relation to corporate inversions.
Amongst other trends, the guide identifies the following key areas where multinational businesses may see changes in the deal-making process from a tax perspective:
- Increased focus on substance – tax authorities are demanding more substance from companies formed to invest in the stock, debt or intangibles of related parties
- Diminished importance of ownership relative to economic contributions in transfer pricing in intangibles – some countries are trending toward assigning income to the situs of the economic activity that gave rise to the intangibles
- Limitations on interest deductions – some such limitation may emerge from the tax reform process in the US
- Worldwide exchange of information between tax authorities – in addition to the exchange of country-by-country reporting data, information about the ultimate owners of investment entities will be subject to broader disclosure.Spurred by FATCA and other legislation, this movement has the momentum to become an international norm
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As dealmakers and tax planners around the world face an ever-tightening fiscal net around the structure and financing of cross-border acquisitions, the era in which each country’s tax authorities kept mostly to themselves is over. An unprecedented period of international cooperation is taking its place, fuelled by universal revenue needs and implemented through new information exchange protocols and stringent national and international substantive anti-avoidance rules.
Like it or not, the playing field has been re-designed to switch focus from whether income will be taxed to where.
International M&A tax planning, whilst always challenging, has become a stiff uphill climb and an obstacle course nearly overnight. But business is not waiting for the tax profession to catch its breath. Economies move at different paces, but we can clearly see the consistent and growing demand for new investment opportunities. Deals will be done and businesses will need to learn on the job how to cope with new rules and restrictions.