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Pascal Saint-Amans pre-empts criticism of final OECD BEPS guidance

Pascal Saint-Amans, director of the OECD’s Centre for Tax Policy and Administration, has pre-empted criticism of the final BEPS package of measures released today.

The final package has been published on the OECD's website todayand will be presented at the G20 meeting in Peru later this week.

The tax chief expects non-governmental organisations (NGO) to be the biggest critics of the OECD’s efforts but thinks taxpayers will have some concerns as well.

“NGOs will say that nothing has happened,” said Saint-Amans in a pre-BEPS release interview with TPWeek. “Whatever we do, that will be the complaint.”

He said NGO criticism is about keeping tax avoidance high on their tax campaign agendas.

He also thinks the OECD may be criticised for not going far enough towards formulary apportionment (FA).

FA is an alternative to the arm’s-length principle that would see developing countries, which have a bigger emphasis on people functions over intellectual property, take a larger share of tax profits.

Saint-Amans said, in response, that the BEPS guidance is a consensus of all countries involved, including non-OECD members such as India, China and Brazil.

Without this agreement, the guidance could not have been finalised because the countries that have reached consensus (OECD members and those in the G20) will go on to implement BEPS measures in their tax regimes.

Multinational enterprises are likely to be concerned, and critical, that the recommendations will create uncertainty.

“My response to that is “Yes, it’s not untrue”.”

Uncertainty is likely, for instance, when governments will need to interpret the guidance to apply it to national legislation. This could create discrepancies and differences in different countries, particularly those where English is not the first language.

“But how do you measure that in a dynamic approach? What would have happened without this project? There is more consensus now than there was years ago.”

However, in subsequent interviews with taxpayers, there is a concern that the uncertainties connected to this guidance will develop further over time and the OECD will not be able to keep pace with international business in order to solve them.

"I think what we will find over time is that, due to the emphasis on combatting the perceived abuses of today, there will be a lack of balance in the approaches that will result, over time, in modifications to many of the recommendations made [in the final guidance]," said Mike Patton, partner, DLA Piper, Los Angeles.

Saint-Amans used Brazil, India and China as an example, explaining that, because of the work on the BEPS action plan, there are now mutual agreement processes in place in these countries.

“But what about the praise?” Saint-Amans asked. “People were sceptical of our ability to deliver anything.”

He added that now the guidance is finalised, the next step will be advising on implementation and monitoring how the guidance is implemented, with an emphasis on tax administrations.

To see how taxpayers and their advisers have reacted, internationally, view our follow-up content by clicking here.

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