Im Rahmen des gemeinsamen OECD-G20-Projekts zur Besteuerung der digitalen Wirtschaft haben sich rund 140 Staaten auf einen globalen Mindeststeuersatz von 15 % für multinationale Konzerne (MNEs) geeinigt. Das BEPS-Projekt der OECD und der G20 stellt eine der bedeutendsten internationalen Steuerreformen der letzten Jahre dar. Die Umsetzung und Festlegung der zusätzlichen Spitzensteuer wird viele Herausforderungen für die teilnehmenden Staaten und die betroffenen Steuerzahler mit sich bringen.
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The OECD is expected to issue updates in the coming months to clarify concepts that are still open. In terms of timing, it has been agreed that the reform will take effect in 2024, one year after the first timetable which was published by the OECD.
Overview of the model rules under Pillar II
The system of minimum taxation of MNEs is based on a model of rules called the "Global Rules against Base Erosion" or "GloBE Rules". This model aims to ensure that large multinational enterprises pay a minimum tax on profits generated in each jurisdiction where they carry on business. International groups which do not meet the annual consolidated turnover threshold of EUR 750 million are not affected by this scheme. It should be noted that this threshold is determined in accordance with Action 13 BEPS (Country-by-Country-Reporting - CbCR) in order to alleviate as much as possible the administrative tasks of the taxpayers concerned in the implementation of the GloBE rules.
Exclusions from the GloBE rules are also provided for in the framework rules. Thus, government entities, non-profit organisations, international organisations as well as those that meet the definition of pension funds, investment funds or real estate investment funds are excluded from its scope. Income generated by international shipping activities is also excluded from these principles. Finally, a de minimis exclusion is also provided for jurisdictions where the taxpayer has a turnover of less than EUR 10 million and profits of less than EUR 1 million.
Calculations and reporting
Should a MNE be subject to GloBE Rules, it will be required to calculate the effective tax rate (ETR) in each of the jurisdictions where they operate to ensure that the minimum ETR (per jurisdiction) is at least 15%. If this threshold is not reached in any of the jurisdictions concerned, the jurisdiction where the ultimate parent company of the group is located will be in principle responsible for calculating and levying the top-up tax according to the primary rule (so-called Income inclusion Rule).
In terms of reporting obligations, any MNE subject to Pillar II will have to submit a GloBE information return on an annual basis - deadline of 15 months after the last day of the accounting period. For the first return, the filling is expected within 18 months after the last day of the accounting period. For example, a group with a closing date of December 31 will presumably have to file its first GloBE information return by June 30, 2026.
What is the current situation regarding the implementation of the new OECD guidelines in Switzerland?
As a reminder, in Switzerland about 200 companies and a significant number of Swiss subsidiaries of foreign groups will be affected by the introduction of Pillar 2 BEPS Project.
To date, Switzerland is fully aligned with the timetable for the introduction of the GloBE Rules in 2024.
On 22 June 2022, the Federal Council published its message on the draft constitutional amendment introducing a specific taxation for large corporate groups. In less than six months, i.e., on 16 December 2022, the Federal Chambers approved the text, thus confirming the commitment to implement it without retroactive effect to 1er January 2024.
The Federal Council has decided to proceed in stages to implement Pillar 2 in the Swiss tax system. As a first step, a new constitutional basis (Article 129a) will be introduced in order to make differentiated taxation of companies in Switzerland possible for large groups. It is also planned to add a new paragraph 15 to Article 127 of the Constitution on transitional provisions, which will empower the Federal Council to introduce the modalities of Pillar 2 Project by means of a provisional ordinance. This federal ordinance will comprehensively define the technical implementation of the minimum taxation of MNE, which will then lapse when the new federal law governing the taxation of these companies comes into force. In general terms, the federal ordinance incorporates Pillar 2 model rules by reference to them, while at the same time specifying the allocation of the additional top-up tax between the Cantons and Federation, i.e., 75% of the revenue is to be allocated to the cantons, which must take appropriate account of the municipalities.
Any revision of the constitution requires a mandatory referendum. The text of the constitutional amendment will therefore be submitted to a vote of the people and the cantons on 18 June 2023.
Focus on the European Union
On 16 December 2022, the EU Member States adopted a directive to implement the Pillar 2 rules at EU level in a manner consistent and compatible with EU law. The Directive will have to be transposed into Member States domestic law by 31 December 2023, with effect for tax years beginning on or after 31 December 2023 (for the IIR rule at least).
Latest OECD publication - Agreed Administrative Instructions on GloBE rules
As of 2 February 2023, the first Administrative Instructions for the GloBE Pillar 2 rules have been published and will be incorporated into the revised Commentary (March 2022 version). The aim of these instructions is to achieve coordinated results and provide greater certainty for businesses when they start applying the global minimum tax rules on corporate profits from 2024.
In this first publication, clarifications considered important by members of the Inclusive Framework are provided, including on the operation of the Qualified Domestic Minimum Tax Top-Up (QDMTT), the scope of the GloBE rules, and issues relating to the allocation of taxes arising from mixed controlled foreign company (CFC) tax regimes. A section is also dedicated to the application of the GloBE rules for insurance companies.
In the course of 2023 and in order to meet the implementation schedule, the Inclusive Framework will consider the drafting of new instructions where clarifications are needed to ensure that the GloBE rules are implemented and applied in a coordinated manner.