Author Segal LLP

Managing Transfer Pricing Risks and Their Impact In Uncertain Times

The world as we know has and continued to rapidly change because of COVID-19 and the ongoing political developments such as the upcoming elections in the United States (US), the United Kingdom’s (UK) impending exit from the European Union (BREXIT), trade wars between economic superpowers, and climate change, among other global emergencies.

COVID-19 being the most recent health crisis was categorized as a pandemic by the World Health Organization (WHO). This pandemic has not just impacted individual health and stretched health care systems worldwide, it has substantially impacted the world’s financial markets and economies, affecting global supply chains and profitability for years to come.

China had to initiate factory lockdowns early on, which impacted global production output and caused delays in distribution to end markets. Factory closures in China and lockdowns in key economic centers worldwide, had a domino effect on other industries such as oil and gas, airlines and hospitality and retail, among others. Governments worldwide have announced emergency fiscal measures including Central Banks slashing interest rates on borrowings to insulate their economies from the effects of recession.

While the macro economic impact of COVID-19 crisis continues to be evaluated, it is critical that multinational corporations that are operating cross-border and entering into inter-company transactions, manage their response to this development. This would include assessing the impact the crisis has had on their profitability as well as a potential overhaul of their global supply chains. Some considerations to note from a transfer pricing perspective are:
1. Revisit transfer pricing models and policies: In instances where a multinational group has had a significant impact on its performance and chooses to restructure its operations by reallocating functions, assets and risks (FAR) to better manage its supply chain it will be important that the transfer pricing model / policy be revisited and updated accordingly. Where this results in a change to the transaction profile as well as the terms and conditions that govern inter-company contracts (examples include, an increase in inter-company financing and related guarantees, increase/decrease in sale/purchase prices, interactions due to inter-company services, negotiation of customer contracts, change to credit terms, impact on inventory flows due to supply disruptions among others), it could result in changes to inter-company pricing basis and the arm’s length returns attributable to each entity involved. It should not be assumed in the current environment, where the parent entity that traditionally performed key Functions, owned high-value Assets (including intellectual property) and assumed significant Risks (FAR), would be the only entity to centralize Group-wide losses while the other entities remain profitable.
2. Perform Function, Asset and Risk profiles and Value Chain analysis: While updating transfer pricing policies and inter-company pricing models, it is critical that the multinational group perform a thorough value chain analysis to reflect changes that may have occurred in each of the entity’s key functions, asset ownership and assumption of risks.
3. Economic analysis: One of the key principles when performing an economic analysis to determine the arm’s length range of returns to substantiate a taxpayer’s position is that significant events are factored in and such analysis be revisited. The traditional practice of updating or a roll-forward of comparable company benchmarks/prices using the comparable uncontrolled price (CUP) method, are unlikely to reflect the most up to date economic realities faced by the multinational group. As such, taxpayers may have to consider the following options:
  • Reallocation of the FAR and use of the Profit Split Method (PSM) – taxpayers may potentially consider adoption of the profit split approach and allocate profits/losses, if suitable. Although when adopting the PSM, it is crucial that several (stringent) conditions are met and there is a clear identification of value generated by each entity involved, resulting in the allocation of profits/losses. A simplistic approach to adopting the PSM is not only likely to attract scrutiny, it will be challenging to document the rationale and support the arm’s length nature of such an allocation.
  • Consistent loss-making comparable benchmarks – when performing a benchmarking study to identify a comparable set, the approach of outright rejecting consistent loss-making companies may have to be revisited.
  • Use of the CUP and price comparisons – where a taxpayer relies on price benchmarks using the CUP method, it will be important that the 5 factors of comparability be evaluated in the context of any changes and determine if the price comparison continues to remain appropriate.
4. Employees and secondment arrangements: cross-border arrangements include key personnel (employees) and it is, therefore, critical that multinational groups assess the impact of ongoing changes to immigration law considering a crisis like COVID-19. These changes will have a direct impact on employees on secondments to other countries as well as the inter-company arrangement(s) in question. Additionally, if employees that travel for business to other locations and are unable to return to their home country due to travel restrictions and advisories, therefore, warranting remote working arrangements, such arrangements could create permanent establishment (PE) implications for the multinational group. While the Canada Revenue Agency (CRA) has issued pronouncements that there will not be a PE if the employees are in Canada because of travel restrictions, this position might differ country to country.
5. Governance and implementation of changes: Where multinational groups make changes to the transfer pricing model/policy, these changes should be immediately reflected in the inter-company agreements, inter-company accounting systems, invoices as well as ensure any year-end adjustments required are put through prior to the close of the financial year or filing the annual tax return, to reflect the up to date facts and circumstances.
6. Document impact on business: where multinational groups have made changes to their transfer pricing model/policy or adversely impacted by the COVID-19 crisis, it will be imperative that taxpayers be able to articulate such changes and/or the reasons for changes to the profitability, in their annual transfer pricing documentation. While this could vary depending on the industry, it will be crucial to document any variances to performance as a first instance to defending the taxpayer’s transfer pricing position to tax authorities, going forward. Alternatively, if a taxpayer is pursuing an Advance Pricing Arrangement (APA), the taxpayer should model and document the impact on the business as this will qualify as a change to the crucial, underlying assumptions on which the APA is/will be based.
7. Manage transfer pricing obligations – where a multinational group is required to prepare and file a Country-by-Country Report (CbCR) and/or CbCR notifications, local transfer pricing disclosures as well as prepare or file a Group Master File, multinational groups should monitor any changes to filing deadlines (where these might be extended in the short term). Such filings should incorporate both quantitative (information on accounting adjustments, write-off’s, disposal of assets etc.,) and qualitative information on the impact on the multinational group’s business. If one or more entities is faced with a local transfer pricing audit, it is important that deadlines be managed with the tax authority accordingly and any delays to submission of information requested are agreed upon.
8. Other taxes – if a multinational group, restructures its operations due to the impact of COVID-19 and the inter-company transactions are subject to withholding taxes, Customs or Goods and Services Tax (GST) / Harmonized Sales Tax (HST) / Value Added Tax (VAT) etc., it will be critical that the effect of these taxes be assessed when making changes. Alternatively, if a multinational group exits a certain market, it might need to meet exit tax and compliance obligations, prior to such closure or disposal.
Managing transfer pricing risks is going to be critical as businesses and Governments navigate uncertain times. Multinational Groups until most recently have been witness to the renewed focus being placed on transfer pricing and tax transparency by the Organisation for Economic Cooperation and Development (OECD) by way of the BEPS 2.0 project. With this continuing to be a key focus for the OECD and tax authorities worldwide, along with a global crisis such as COVID-19, transfer pricing arrangements are likely to see increased scrutiny by tax authorities and viewed as a key driver for tax revenue to balance fiscal deficits and manage tax collection targets.

For more information on how our team can help you navigate your specific transfer pricing needs, contact our Transfer Pricing Leader, Avinash S. Tukrel.

Employee Home Office Expenses

In light of Covid-19, many employees have had to work from home for a large portion of the 2020 calendar year.  Therefore, there is the possibility for employees to claim a home office deduction in calculating their 2020 personal taxes.

Ordinarily, if an employee maintains an office in their home, the employee could deduct certain costs if one of the following two conditions are met:
  • The workspace is the employee’s principal place of where employment duties are performed, or
  • The workspace is used exclusively for the purpose of earning income from employment and used on a regular and continuous basis for meeting clients, customers or patients of the individual in the course of employment.
The first condition relies on the workspace being used as the employee’s “principal” place of carrying out employment duties.  The Canada Revenue Agency has stated that it will accept that an employee principally works in the workspace if the employee spends at least 50% of their time carrying out employment duties in the space. It is important to note that there is no clear guidance, as of yet, as to whether the measure of time is applied on an annual basis or over a defined period.

If either of the above conditions are met, an employee is required to have an executed Form T2200 – Declarations of Conditions of Employment for every year they deduct home office expenses.

The home office expenses that can be deducted are operating type costs such as heating, electricity, and water, as well as rent and maintenance costs.  Additionally, if the employee is a commissioned salesperson, property taxes and home insurance are deductible.  Deductible expenses do not include renovations or fixed asset purchases such as office furniture.

The home office expenses must be prorated based on the workspace area relative to the size of the home or rental space.  The remaining portion of the costs are considered personal and are specifically excluded from the deduction.

Typically, the portion of the expenses that relate to the workspace is calculated by dividing the square footage of the workspace by the total square footage of the home.  However, if the first condition above is used to qualify for the home office expense deduction, the calculation to arrive at the deductible amount of home office expenses must take into account the amount of time spent in the work space carrying out employment duties.  Therefore, if 70% of the employment duties are carried out in the home office, then 70% of the pro rated workspace costs are deductible.

For 2020, many employers will be requested to provide Form T2200 – Declaration of Conditions of Employment.  This will put a time burden on employers as they will be required to prepare each form individually for each employee  In addition, the vague time frame associated with the first condition mentioned above creates uncertainty and a decision will have to be made as employees will be asking for the form.  It is up to the employer to decide if the form will be provided.

In light of these and other questions, CPA Canada, at the time of writing of this article, is in consultation with the Canada Revenue Agency in an effort to assist employers and employees with the requirements associated with home office expenses to ensure streamlined compliance.

Written by Stephen Lanni, CPA, CA from Segal LLP. This document was written for our quarterly bulletin, Canadian Overview, published by Canadian member-firms of Moore North America.

Personal Real Estate Corporations (“PRECs”)

Are you in the real estate industry who is interested in reducing your current taxes? Have you considered using the profit from your business for other investment purposes? If so, incorporation may be right for you.

As of October 2020, Ontario real estate agents are allowed to operate their business through personal real estate corporations (“PRECs”). PRECs permit agents to access the advantages of incorporation, including:
  • Tax deferral on income
  • Possible access to lifetime capital gains exemption on the sale of shares
  • Income splitting with family members

Tax Deferral and Income Splitting

The main benefit of incorporation is the opportunity for tax deferral. Active business income earned by a PREC is subject to a tax rate of 12.2%on the first $500,000 of active business income earned in Ontario.  For income earned above $500,000, the corporate tax rate is 26.5%.  These rates compare favourably to the top personal tax rate of  53.5% when income exceeds $220,000. An agent does not need to pay personal tax until funds are withdrawn from the corporation. Tax deferral is achieved by retaining income in the corporation.  For those real estate agents that require all of their income for living expenses, the corporation would not allow for this deferral benefit.

A PREC can pay income to the agent and his or her family members as a salary or dividend. Tax savings are achieved when there is income splitting among family members at a lower tax rate. In recent years, the government had imposed limitations on income splitting, thus income allocated to family members may have adverse tax consequences. Generally, the family member receiving a salary or dividend must be actively involved in the business of the PREC. In addition, dividends can be paid from the PREC to the spouse or common-law partner of the agent when the agent is 65 years of age or older.  The age of the spouse is not relevant.

Access to Capital Gains Exemption

When shares of certain corporations are sold, the shareholders can claim the Enhanced Capital Gains Exemption (LCGE).  As of 2020, this exemption is $883,384.  It is indexed each year.  In order to be eligible, there are tests for assets held over the last 24 months before the sale and as of the day of the sale.  For a real estate broker, this tax benefit would be available if the broker sold its PREC.  In order to be eligible, it is important for the PREC to avoid the accumulation of non-business assets.  If the PREC is being used for the deferral of personal taxes, there would be an accumulation of non-business assets.  Based on the nature of the real estate brokerage business, it is likely that the benefit of the LCGE will be less relevant than the benefit of personal tax deferral.

Criteria of PRECs

A PREC must be incorporated or continued under the Business Corporations Act. The PREC can only be controlled by one registrant – the controlling shareholder. The controlling shareholder must be a registrant with the Real Estate Council of Ontario under the Trust and Real Estate Services Act. He or she must own all of the voting, equity shares of the PREC, and cannot delegate the key roles or the control of the PREC to others. The controlling shareholder must be the sole director and the president of the PREC. Non-voting/ non-equity shares of the PREC can be owned by the controlling shareholder, the family members of the controlling shareholder, or a trust established for a minor child or children of the controlling shareholder. Family members include children, spouse, common-law partner, and parents. However, tax limitations may restrict the income paid from the PREC to the family members unless they are active in the business working full time.  Full time is defined as 20 hours per week throughout the year.

Other Benefits of PRECs

PRECs can also be used for investment purposes (owning rental properties, marketable securities, and insurance policies), and for carrying on other business, whether it is related to earning real estate commissions or not. However, PRECs should not purchase personal properties (such as homes, cottages, and boats) as these could be considered shareholder benefits, which are taxable to the shareholders in the year the benefit was conferred.

Setting up a PREC involves the transfer of the agent’s existing business into a corporation. There will be additional legal and accounting costs related to incorporation and tax filing. Advice should be sought to determine whether a PREC will meet the needs and goals of the agent and his or her family.

Written by Echo Lee, CPA, MTax, MTI, from Segal LLP. This document was written for our quarterly bulletin, Canadian Overview, published by Canadian member-firms of Moore North America.

Taxation of CEBA and CECRA

CEBA – Forgivable Loan

If you are a small business owner you are likely aware of the Canadian Emergency Business Account (CEBA) and may have received a loan under this program. This loan program is facilitated by Canadian lending institutions under which an interest-free loan of up to $40,000 is made to a qualifying small business or not-for-profit organizations. Under the terms of the loan, 25% of the loan (up to $10,000) will be forgiven if the balance of the loan is repaid on or before December 31, 2022. This is a small but welcomed relief used by many small businesses. If we survive the pandemic and can refinance or repay the loan there is $10,000 in income to the small business. But wait, the 25% amount that might be forgiven if the loan is repaid by December 31, 2022, is taxable in the year end that includes December 31, 2020! Without getting into the technical aspects of this, the Income Tax Act will tax 25% of the amount advanced under this program. The corporate tax rate will determine how much tax you will be paying on the amount potentially forgiven in Calendar year 2020. If by December 31, 2022 the loan has not repaid you can then deduct any amount previously included in your income when it is repaid. If this is repaid over the following five years (from 2023 to 2028), a deduction will be available when it is paid. The question is, when is the 25% that was originally to be forgiven repaid? Is it deductible proportionally with each repayment of principal or on another basis?

CECRA – Rent Relief

Canada Emergency Commercial Rent Assistance (CECRA) is a loan plan administered by the Canada Housing and Mortgage Corporation (CMHC). Under this program, the loans will be forgiven if the qualifying property owner agrees to reduce their small business tenants’ rent by at least 75 percent under a rent reduction agreement, and will include a term not to evict the tenant while the agreement is in place. The small business tenant would cover the remainder, up to 25 percent of the rent. The same reasoning applies to the portion of the CECRA loan that can be forgiven; it will be considered taxable when the loan is received from CMHC. If the loan is not forgiven, there will be an income deduction when the portion of the loan that was included in income is repaid.

Written by Brad Berry from Mowbrey Gil. This document was written for our quarterly bulletin, Canadian Overview, published by Canadian member-firms of Moore North America.

OECD BEPS 2.0 – Pillar One & Pillar Two Blueprints Released

Summary:

The Pillar One and Two blueprints (BEPS 2.0) following a meeting of the OECD-led coalition of 137 countries, were released yesterday.

Contrary to expectations, there was no agreement on either blueprint by the Inclusive Framework members and it is now expected that consensus could be achieved by mid-2021.

Highlights:

The Blueprint documents are fairly consistent with previous communication from the OECD and demonstrate an evolution of the Unified Approach proposals from last October. In summary:
  • Pillar One continues to advocate the creation of a new taxing right and new nexus rules that move away from the traditional “physical presence” requirements; and
  • Pillar Two proposes the introduction of a global minimum tax and rules, to minimize global tax competition.
From a Pillar One perspective, countries are yet to agree on the scope, Amount A, and whether, as proposed by the United States, Pillar One reform should be made optional for multinationals. Also unresolved is the issue of how much profit is considered residual profit and what percentage would be reallocated. For Amount A, there is general agreement on the need for a new taxing right that is not based on physical presence and on a solution anchored on a net basis tax that uses a formulaic approach for the allocation of profits for business within the scope of Pillar One.

There is a general agreement that any solution will have to use thresholds, that consolidated financial accounts should be used as the starting point with limited book to tax adjustments, and that losses are taken into account (although this requires to be refined). There is also general agreement that segmentation is required to determine the tax base along with a broad safe harbor or exemption rules to reduce complexity.

There is a commitment to make sure that double tax is eliminated in a multilateral setting. Countries want to make progress on determining Amount B to simplify transfer pricing calculations for baseline marketing and distribution activities. A solution for Pillar One would include a new multilateral tax certainty process. For Amount A, a multilateral convention would be developed to implement the solution.

From a Pillar Two perspective, while a number of elements have been broadly agreed to, a “subject to tax rule” will have to be included for it to have a political agreement and reach global consensus.

The report provides an “impact assessment” although not for each country. Some key highlights:
  • The overall impact is likely to boost global corporate income tax revenues by up to 4% ($100 billion), with global gains expected to be derived primarily from the implementation of Pillar Two.
  • Pillar One is expected to result in a further reallocation of $100 billion to market jurisdictions (which, for some business models, are the jurisdictions where the users are located) which is likely to result in a modest increase in global tax revenues.
  • The impact assessment goes on to further clarify that the proposals will predominantly impact taxpayers that are high-profitable multi-national enterprises (“MNEs”) that are digitalized and use significant intangibles in the case of Pillar One, and MNE’s engaging in profit shifting in the case of Pillar Two.
Next steps:

The Blueprint documents are scheduled to be discussed at the G20 Finance Ministers and Central Bank Governors meeting on October 14, and a public consultation process has begun inviting stakeholder feedback and open until December 14, 2020.

Multinational Groups should actively continue monitoring progress leading up to countries arriving at a consensus and contribute to the consultation process that closes at the end of this year. Businesses with a digital footprint that heavily rely on intangibles, should model the impact of these proposals. Furthermore, businesses that have continued to retain traditional tax structures and/or that rely on traditional physical presence requirements, should review such arrangements

A copy of the report released by the OECD can be viewed here: https://www.oecd.org/tax/beps/tax-challenges-arising-from-digitalisation-report-on-pillar-one-blueprint-beba0634-en.htm

If you’d like to know more or how this might be relevant to your global business and inter-company arrangements, contact our Transfer Pricing Leader, Avinash S. Tukrel.