Intragroup financing arrangements are subject to special rules under Article 3.2.7 of the OECD Model Rules.
This is a common area of tax planning for MNE’s and without specific provisions, they could adjust the effective tax rate (ETR) of jurisdictions by structuring financing operations.
For instance, they could reduce Pillar Two GloBE income in jurisdictions that were just below the minimum rate (therefore increasing the ETR and potentially resulting in the jurisdictional ETR being over 15%) whilst increasing Pillar Two GloBE income in jurisdictions that had significant ETR capacity (ie where the jurisdictional ETR is significantly above 15% anyway).
A typical arrangement that would be targeted by this is a hybrid financing arrangement such as:
MNE Co 1 is resident in a low-tax jurisdiction. It borrows money from MNE Co 2 by way of a debt instrument 2. MNE Co 2 is a member of the same MNE group and is resident in a high tax jurisdiction.
The debt instrument is treated as equity for tax purposes and debt for financial accounting purposes in both jurisdictions.
As such, interest payments by MNE Co 1 would reduce Pillar Two GloBE income (and therefore increase the Pillar Two GloBE ETR) without any reduction in the domestic tax liability (as dividends are generally not tax-deductible).
By contrast, the interest receipt would increase Pillar Two GloBE income in MNE Co 2 (reducing its Pillar Two GloBE ETR) without a corresponding increase in its domestic taxable income.
Therefore, as an anti-avoidance measure, the Pillar Two GloBE income or loss of a low-taxed entity does not include any expenses of an intra-group financing arrangement that can be expected to increase the expenses of a low-taxed entity without a corresponding increase in the taxable income of a high taxed entity.
A low-taxed entity is generally an entity in a jurisdiction where the Pillar Two GloBE ETR is less than 15%.
There is no increase in the taxable income of a high-taxed entity if the income qualifies for an exclusion or deduction ie just because the high-taxed entity is allocated the income for local tax purposes does not mean this requirement is met, if it qualified for deduction or credits that offset it.
This could be the case if, for example, it has brought forward interest expenses sufficient to offset interest received from the low-taxed entity.
Whether there is an intragroup financing arrangement in place is an objective test and is based on whether there is an arrangement between two or more members of an MNE group which results in a high taxed entity directly or indirectly providing credit or making an investment in a low taxed entity.
In addition, again using an objective test, the arrangement must be reasonably expected to reduce the Pillar Two GloBE income of a low taxed entity without increasing the taxable income of a high taxed entity over the duration of the agreement.
Profits from international shipping (eg profits derived from the transport of cargo or passengers by ships) as well as certain ancillary income are generally exempt for Pillar Two GloBE income purposes under Article 3.3 of the OECD Model Rules.
As this would have been included in the profits in the financial accounts, an adjustment to the Pillar Two GloBE income is required.
On December 23, 2024, Australia issued the Taxation (Multinational—Global and Domestic Minimum Tax) Rules 2024 (the ‘Rules’) to provide for the detailed application of the Pillar 2 GloBE rules in Australia.
On January 15, 2025, the OECD issued Administrative Guidance that includes a list of jurisdictions that have transitional qualified status for the purposes of the income inclusion rule and domestic minimum tax (including the QDMTT Safe Harbour).
On January 15, 2025, the OECD issued an updated GloBE Information Return (GIR) and GIR XML Schema. In this article we look at the changes to the previous GIR.
On January 3, 2025 the Law on Global Minimum Corporate Income Tax was published in the Official Gazette to implement the EU Global Minimum Tax Directive.
On January 15, 2025, the OECD issued a list of jurisdictions that have transitional qualified status, further Administrative Guidance on the application of the Article 9.1 transitional rules, and an updated GloBE Information Return and GIR XML Schema, as well as the GIR MCAA.
On December 31, 2024, Law No. 20612, was published to amend the International Tax Adjustment Act for the 2025 Tax Reform provisions. This includes some amendments to the Global Minimum Tax provisions.
On December 31, 2024, Ministerial Decree of December 27, 2024 was published in the Official Gazette. This implements Article 4.1-4.3 of the February 2023 OECD Administrative Guidance and some aspects of the June 2024 OECD Administrative Guidance on deferred taxation.
The Ministerial Decree of December 27, 2024 published in the Official Gazette on December 31, 2024 provides for a number of miscellaneous, but important aspects of the OECD Administrative Guidance that were not included in the original Minimum Tax Law.
The Dutch Minimum Tax Executive Decree 2024 was published in the Government Gazette on December 23, 2024 to implement various aspects of the OECD Administrative Guidance.
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