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Why MNE Groups Need to Undertake a Pillar 2 Impact Assessment

Undertaking an early Pillar Two Impact Assessment allows MNE groups to identify potential top-up tax, ascertain and implement changes to processes and systems and provides time to consider restructuring to efficiently plan for Pillar Two. 

In this article we take a detailed look at why an early Impact Assessment is essential. 

Contents

Accounting Disclosures

Although the Pillar Two rules are proposed to apply from 2024 in most of the jurisdictions that have released draft legislation to date, accounting disclosures may be required in the 2022 group financial statements. These would also need to be reviewed by the auditors.
 
IAS 1, IAS 10 and IAS 12 all have provisions that can apply however the key determinant will be whether the domestic tax law to implement the Pillar Two GloBE Rules has been:
  • announced
  • substantively enacted;
  • or enacted

before the financial statements are issued.

IAS 10(22)(h) states that changes in tax rates or tax laws enacted or announced after the reporting period that have a significant effect on current and deferred tax assets and liabilities are an example of an event after the reporting period that would generally result in disclosure. 

Under IAS 10(21) the disclosure will include:

(a)  the nature of the event; and

(b)  an estimate of its financial effect, or a statement that such an estimate cannot be made.

It is likely that in many cases an accurate estimate of the financial effect of the Pillar Two GloBE Rules could not be made in the period from when the announcement/enactment occurs and the date the financial statements are issued.

As such a statement to that effect would need to be made.

The IFRS does not define when a change in tax law has been ‘announced’ and therefore MNEs will need to carefully look at the status of Pillar Two in the jurisdictions they operate in and the progress of any proposals.

In particular, if a statement is made that there will be no material impact of Pillar Two on the group, management will need to be able to support this with, for example, an Impact Assessment. 

See more on this at: Pillar Two Accounting Disclosures Under IFRS

Potential Top-Up Tax Liabilities

Determining jurisdictions where there is potential top-up tax under Pillar Two allows this to be incorporated into management planning and assess any measures that can be undertaken to reduce any potential liability.
 
Undertaking a Pillar Two Impact Assessment highlights at-risk jurisdictions.
 
It cannot be assumed that just because a jurisdiction has a high headline corporate income tax rate that the jurisdictional effective tax rate (ETR) for Pillar Two will be above 15%.
 
The Pillar Two ETR calculation requires a significant number of adjustments to financial accounting income and the tax expense for GloBE purposes which can significantly reduce the ETR. In particular the impact of jurisdictional blending and the substance-based income exclusion under the GloBE rules should be modelled to calculate the GloBE ETR/top-up tax on a jurisdictional basis.

Data Points

The challenge with Pillar Two is that it essentially creates a separate, additional tax regime for MNEs.

Income for instance will be determined for financial reporting purposes, for tax purposes and also for Pillar Two purposes. Each is subject to separate rules.

Therefore, data extracted for Pillar Two purposes will be subject to a specific Pillar Two data transformation process that will then enable the calculation of the jurisdictional effective tax rate. 

Data extraction for Pillar Two will require extracting data so that the tax department has the required information to calculate the Pillar Two ETR.
 
There will be overlap with already existing data points that the MNE currently collects for financial accounting or tax purposes, but the requirements of Pillar Two will impact on what needs to be sourced.  
 
Data will need to be extracted from Enterprise Resource Planning Systems and Enterprise Performance Management Systems, but additionally information from the domestic tax computation and group structure information will be required (eg to determine tax residency or the allocation of income/tax between a main entity and a permanent establishment). 
 
This will require new data points to be ascertained and amendments to current systems to collect and then process that data. 
 
A Pillar Two Impact Assessment allows MNEs to identify some of the key data points that may be required before undertaking a tax data mapping assessment. 

Intra-Group Asset Transfers

The Pillar Two treatment of intra-group asset transfers generally follows the financial accounting treatment.
 
This generally values the transfer of assets at fair value.
 
Therefore, any gain or loss recognised for accounting purposes would also flow through to the GloBE income calculation.
 
However, the Article 9.1.3 of the OECD Model Rules provides that if an asset is transferred between group entities after November 30, 2021 and before the first year the GloBE rules apply to the group, the asset is recorded at its historic cost providing the entities would have been subject to the Pillar Two GloBE rules had they been in-scope.
 
The reason for this is to prevent an uplift in the base cost of assets (with potentially additional tax relief and reduced gains on a future disposal) when any original gain on the intra-group transfer was not taken into account for Pillar Two GloBE purposes as the group was not subject to the rules.
 
This would also mean that any deferred tax assets or liabilities would also need to be recast to the historic value (eg if tax relief for the assets was given over a shorter period than for financial accounting purposes).

The effect of these rules is that:

1. In the transition period from November 30, 2021 and before the first year the GloBE rules apply to the group an intra group asset transfer is likely to reduce the GloBE ETR of an acquiring entity. A Pillar Two impact assessment can identify whether top-up tax could arise and assess other options.

2. After the MNE Group is within the scope of the GloBE rules, a cross-border asset transfer will give rise to a gain based on the market value of the asset unless it qualifies as a ‘GloBE reorganisation’. 

A Globe Reorganisation occurs where there is a transfer of assets and:

(a) the consideration for the transfer is, in whole or in significant part, equity interests

(b) the transferors gain or loss on the assets is not wholly or partly subject to tax; and

(c) the tax law applicable to the transferee entity requires them to use the transferor’s tax base as the carrying value of the assets (the so-called ‘stand in the shoes’ principle).

This means that the transferor jurisdiction must provide for the tax-free deferral of the gain and the base cost is not uplifted in the transferee jurisdiction.

This should be considered as existing tax neutral provisions in domestic law may be less restrictive than the GloBE requirements. This would then drive down the Pillar Two ETR, with potential top-up tax. 

MNE groups considering future reorganisations should therefore include in their impact assessments the effect of the Pillar Two GloBE rules on intra group asset transfers. 

Deferred Tax

A special transitional rule in Article 9.1.2 of the OECD Model Rules applies to deferred tax assets that arise from permanent differences that are included in calculating taxable income but not Pillar Two GloBE income.

Note that this can apply to both timing differences and permanent differences where they aren’t reflected in Pillar Two GloBE income.

This will frequently arise from a permanent difference.

A permanent difference is a difference between the tax and accounting treatment that won’t reverse out over time.

Typical examples are many of the tax-specific deductions that don’t apply for accounting purposes, such as a specific enhanced tax deduction.

If they aren’t taken into account for Pillar Two GloBE income then this rule can apply.

Where the deferred tax asset is created in a transaction that takes place after 30 November 2021 it is not included in adjusted covered taxes.

This means that on the release of the asset there is no debit to the deferred tax charge in the P&L and no increase in covered taxes. 

It is therefore necessary to track these adjustments from December 1, 2021. A Pillar Two impact assessment can be used to identify adjustments that need to be tracked and ensure required data points and systems are in place to collect the data. 

Lee Hadnum
Lee Hadnum
Lee is a qualified Chartered Accountant and Chartered Tax Adviser. A former Senior Tax Analyst at Bloomberg Tax, Lee began his career in Ernst & Young's Entrepreneurial Services department and has 20 years of international tax planning experience. Lee's books have been recommended by The Times, The Guardian and The Telegraph.

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