Treatment of R&D Tax Incentives under the Pillar 2 GloBE Rules

Tax incentives for R&D are a common way for a jurisdiction to attract foreign direct investment (FDI). A key question for the purposes of the Pillar Two GloBE rules (along with all other tax incentives) is to what extent they may lead to a reduced GloBE effective tax rate (ETR), and potentially lead to additional top-up tax.

A very common tax incentive for R&D expenditure is some form of tax credit. Many jurisdictions offer this eg:

Jurisdiction R&D Tax Credit
South KoreaArticle 10 of the Special Tax Treatment Control Law provides for a tax credit for qualifying expenditure incurred on research and human resources development. For expenditure incurred in new growth engine or core technologies, the tax credit is 20-25 percent of R&D expenses or 30 percent for R&D incurred in technology deemed as having national importance.
NigeriaSection 26 of the Company Income Tax Act provides for a 20 percent investment tax credit on qualifying R&D expenditure.
New ZealandSection 19 (LY4) of the Taxation (Research and Development Tax Credits) Act 2019 provides for an R&D tax credit equal to 15 percent of eligible R&D expenditure (subject to a cap on eligible expenditure of 120 million dollars per year).
New CaledoniaArticle 37-16 of the Tax Code provides for a tax credit equal to 30 percent of the amount incurred on scientific or technical research.
MonacoArticle 1 of Ordinance No. 10.325 provides for a 30 percent R&D tax credit on eligible expenses up to 100 million euros, (5 percent above this), subject to a cap of 10 million euros.
JapanArticle 42-4 of the Special Taxation Measures Law, provides for an R&D tax credit of between 2 -14 percent of qualifying R&D expenditure.
Cote d’IvoireArticle 114bis of the General Tax Code provides for a 50 percent tax credit on R&D expenses where a company has at least 15 percent of their expenses allocated to research, development or innovation activities.

However, R&D tax incentives are not limited to tax credits. Other methods include enhanced capital relief, super deductions and patent boxes or other similar arrangements.

Jurisdictional Amendments

Given the Pillar Two Global Minimum Tax rules apply from 2024 in many jurisdictions (or 2025 in certain jurisdictions) a number of jurisdictions are actively looking at their R&D tax incentives.

For instance, Section 27 of Irelands 2022 Finance Act included amendments to their R&D tax credit regime. 

The Irish R&D tax credit operated as an offset against a company’s current and prior year corporation tax liability. Any excess was then either carried forward for use against future corporation tax labilities or claimed as a payable credit in three instalments over a period of 33 months (which was subject to a cap linked to the higher of the corporation tax paid by the company in the previous 10 years or the payroll taxes paid by the company for the periods).

However, in order to be a Qualified Refundable Tax Credit for GloBE purposes the refund amount must not be limited to any ‘tax liability’. This would have therefore prevented the Irish R&D tax credit being a Qualified Refundable Tax Credit for Pillar Two purposes if amendments were not made. As such, the 2022 Finance Act included a number of amendments to the R&D tax credit regime to ensure it qualified. 

The OECD report on Tax Incentives and the Global Minimum Corporate Tax warns against simply changing a tax credit to fit the definition of a Qualified Refundable Tax Credit (as although it may lessen the impact of the GloBE Rules on the incentive, it could also lead to substantial revenue losses). However, in practice, many jurisdictions will be looking at their R&D regimes as part of a general review of tax incentives after the Pillar Two Global Minimum Tax

In this article we look at the financial accounting, domestic tax and Pillar Two treatment of some of the main R&D tax incentives including standard deductions, capitalization, super deductions, tax credits and patent boxes or other similar arrangements.

Standard Deduction

In some jurisdictions, a company is just permitted an immediate write-off of the full amount of R&D expenditure for tax purposes.

On the assumption that this is mirrored for financial accounting purposes (as is usually the case), there would be no additional impact under the GloBE rules.

GloBE income is based on financial accounting income, and therefore the accounting expense would flow through into the GloBE income base.

This would reduce income for GloBE purposes (when compared to if no deduction had been given) and (other things being equal) would lead to an increase in the GloBE ETR and a potential reduction in any top-up tax payable.

If, for financial reporting purposes, the R&D was amortized over a number of years then there would be deferred tax implications due to the timing difference between the accounting and tax treatment – see below.

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