OECD/G20 BaseErosion and Profit Shifting Project
Statement on a Two-Pillar Solution to Address the TaxChallenges Arising from the Digitalisation of the Economy
This document setsout the Statement which has been discussed in the OECD/G20 Inclusive Frameworkon BEPS.136 member jurisdictions haveagreed to it as of 8 October 2021. It is noted that not all Inclusive Frameworkmembers have joined as of today.
该文件是经G20/OECD税基侵蚀和利润转移包容性框架讨论的声明。136个辖区于 2021 年 10 月 8 日同意该声明。截至目前，并非所有包容性框架成员均已加入共识。
The OECD/G20Inclusive Framework on Base Erosion and Profit Shifting (IF) has agreed atwo-pillar solution to address the tax challenges arising from thedigitalisation of the economy. The agreed components of each Pillarare described in the following paragraphs.
A detailedimplementation plan is provided in the Annex.
In-scope companiesare the multinational enterprises (MNEs) with global turnover above 20 billioneuros and profitability above 10% (i.e. profit before tax/revenue) calculatedusing an averaging mechanism with the turnover threshold to be reduced to 10billion euros, contingent on successful implementation including of taxcertainty on Amount A, with the relevant review beginning 7 years after theagreement comes into force, and the review being completed in no more than oneyear.
Extractives andRegulated Financial Services are excluded.
需适用金额 A 规则的跨国企业是全球营业收入 200 亿欧元以上且利润率（税前利润/收入）10%以上的跨国企业，相关门槛按平均值计算。如果金额A 规则（包括金额A 税收确定程序）实施顺利，营业收入门槛将下调至 100 亿欧元。协议生效七年后将对金额A 是否实施顺利进行审议，并在一年内完成。
There will be anew special purpose nexus rule permitting allocation of Amount A to a marketjurisdiction when the in-scope MNE derives at least 1 million euros in revenuefrom that jurisdiction. For smaller jurisdictions with GDP lower than 40billion euros, the nexus will be set at 250 000 euros.
The specialpurpose nexus rule applies solely to determine whether a jurisdiction qualifiesfor the Amount A allocation.
Compliance costs(incl. on tracing small amounts of sales) will be limited to a minimum.
根据新的特殊联结度规则，当适用范围内的跨国企业从某个税收管辖区（以下简称“辖区”）取得的收入不低于 100 万欧元时，允许相关市场辖区参与金额 A 的分配。对于国内生产总值（GDP）低于 400 亿欧元的小型辖区，该联结度门槛为 25 万欧元。
特殊联结度规则仅用于确定某辖区是否可参与金额 A 的分配。
For in-scope MNEs,25% of residual profit defined as profit in excess of 10% of revenue will beallocated to market jurisdictions with nexus using a revenue-based allocationkey.
将超过收入 10%的利润定义为 “剩余利润”。对于适用范围内的 跨国企业，25%的剩余利润将被分配至构成联结度的市场辖区，并以收入为分配因子。
Revenue will besourced to the end market jurisdictions where goods or services are used orconsumed. To facilitate the application of this principle, detailed sourcerules for specific categories of transactions will be developed. In applyingthe sourcing rules, an in-scope MNE must use a reliable method based on theMNE’s specific facts and circumstances.
The relevantmeasure of profit or loss of the in-scope MNE will be determined by referenceto financial accounting income, with a small number of adjustments.
Losses will becarried forward.
Segmentation willoccur only in exceptional circumstances where, based on the segments disclosedin the financial accounts, a segment meets the scope rules.
Marketing anddistribution profits safe harbour
Where the residualprofits of an in-scope MNE are already taxed in a market jurisdiction, amarketing and distribution profits safe harbour will cap the residual profitsallocated to the market jurisdiction through Amount A. Further work on thedesign of the safe harbour will be undertaken, including to take into accountthe comprehensive scope.
如果适用范围内跨国企业的剩余利润已在某市场辖区征税，则营销及分销利润安全港将会限制通过金额 A 向该市场辖区分配的剩余利润额。将进一步研究安全港设计，包括考量全面适用范围的影响。
Elimination ofdouble taxation
Double taxation ofprofit allocated to market jurisdictions will be relieved using either theexemption or credit method.
The entity (orentities) that will bear the tax liability will be drawn from those that earnresidual profit.
In-scope MNEs willbenefit from dispute prevention and resolution mechanisms, which will avoiddouble taxation for Amount A, including all issues related to Amount A (e.g.transfer pricing and business profits disputes), in a mandatory and binding manner.Disputes on whether issues may relate to Amount A will be solved in a mandatoryand binding manner, without delaying the substantive dispute prevention andresolution mechanism.
An electivebinding dispute resolution mechanism will be available only for issues relatedto Amount A for developing economies that are eligible for deferral of theirBEPS Action 14 peer reviewand have no or low levels of MAP disputes. The eligibility of a jurisdictionfor this elective mechanism will be reviewed regularly; jurisdictions foundineligible by a review will remain ineligible in all subsequent years.
适用范围内的跨国企业将受益于争议预防与解决机制，避免金额 A 的双重征税。该强制性有约束力的争议预防与解决机制适用范围包括所有与金额A 有关的事项（例如：转让定价和营业利润争议）。对于判断某事项是否与金额A 有关的争议，也将通过强制性有约束力的方式进行确认，但确认争议属性不应延迟实质性的争议预防与解决机制。
具有推迟BEPS 第十四项行动计划同行审议资格且相互协商程序（MAP）争议案件数量为零或者较少的发展中国家，可选择适用有约束力争议解决机制，但仅限于与金额A 有关事项的争议。相关辖区选择适用机制的资格，将被定期审议；相关辖区一旦被审议认定为丧失资格，在后续年度将无法恢复。
The application ofthe arm’s length principle to in-country baseline marketing and distributionactivities will be simplified and streamlined, with a particular focus on theneeds of low capacity countries. This work will be completed by the end of2022.
为特别关注低征管能力国家的需求，将通过金额 B 对在某一辖区内从事基本营销和分销活动适用独立交易原则进行简化和优化。金额B工作将在 2022年底前完成。
The tax compliancewill be streamlined (including filing obligations) and allow in-scope MNEs tomanage the process through a single entity.
The MultilateralConvention (MLC) will require all parties to remove all Digital Services Taxesand other relevant similar measures with respect to all companies, and tocommit not to introduce such measures in the future. No newly enacted DigitalServices Taxes or other relevant similar measures will be imposed on anycompany from 8 October 2021 and until the earlier of 31 December 2023 or thecoming into force of the MLC. The modality for the removal of existing DigitalServices Taxes and other relevant similar measures will be appropriatelycoordinated. The IF notes reports from some members that transitionalarrangements are being discussed expeditiously.
The MLC throughwhich Amount A is implemented will be developed and opened for signature in2022, with Amount A coming into effect in 2023. A detailed implementation planis set out in the Annex.
关于实施金额 A 的多边公约将在2022年完成开发并开放签署，以使金额A在2023年开始生效执行。详细的实施计划参见附录。
• two interlocking domestic rules (together theGlobal anti-Base Erosion Rules (GloBE) rules): (i) an Income Inclusion Rule (IIR),which imposes top-up tax on a parent entity in respect of the low taxed income ofa constituent entity; and (ii) an Undertaxed Payment Rule (UTPR), which denies deductions or requires an equivalent adjustmentto the extent the low tax income of a constituent entity is not subject to tax underan IIR; and
• a treaty-based rule (the Subject to Tax Rule (STTR))that allows source jurisdictions to impose limited source taxation on certain relatedparty payments subject to tax below a minimum rate. The STTR will be creditableas a covered tax under the GloBE rules.
The GloBE ruleswill have the status of a common approach.
This means that IFmembers:
•are notrequired to adopt the GloBE rules, but, if they choose to do so, they willimplement and administer the rules in a way that is consistent with theoutcomes provided for under Pillar Two, including in light of model rules andguidance agreed to by the IF;
•accept theapplication of the GloBE rules applied by other IF members including agreementas to rule order and the application of any agreed safe harbours.
The GloBE ruleswill apply to MNEs that meet the 750 million euros threshold as determinedunder BEPS Action 13 (country by country reporting). Countries are free toapply the IIR to MNEs headquartered in their country even if they do not meetthe threshold.
Governmententities, international organisations, non-profit organisations, pension fundsor investment funds that are Ultimate Parent Entities (UPE) of an MNE Group orany holding vehicles used by such entities, organisations or funds are notsubject to the GloBE rules.
全球反税基侵蚀规则将适用于根据 BEPS 第十三项行动计划（国别报告）确定达到7.5亿欧元门槛的跨国企业。各辖区对总部位于本辖区的跨国企业适用收入纳入规则时，不受该门槛限制。
The IIR allocates top-uptax based on a top-down approach subject to a split-ownership rule forshareholdings below 80%.
The UTPR allocatestop-up tax from low-tax constituent entities including those located in the UPEjurisdiction. The GloBE rules will provide for an exclusion from the UTPR forMNEs in the initial phase of their international activity, defined as thoseMNEs that have a maximum of EUR 50 million tangible assets abroad and thatoperate in no more than 5 other jurisdictions.This exclusion is limited to a period of 5 years after the MNE comes into thescope of the GloBE rules for the first time. For MNEs that are in scope of theGloBE rules when they come into effect the period of 5 years will start at thetime the UTPR rules come into effect.
The GloBE ruleswill operate to impose a top-up tax using an effective tax rate test that iscalculated on a jurisdictional basis and that uses a common definition ofcovered taxes and a tax base determined by reference to financial accountingincome (with agreed adjustments consistent with the tax policy objectives ofPillar Two and mechanisms to address timing differences).
In respect ofexisting distribution tax systems, there will be no top-up tax liability ifearnings are distributed within 4 years and taxed at or above the minimumlevel.
The minimum taxrate used for purposes of the IIR and UTPR will be 15%.
The GloBE ruleswill provide for a formulaic substance carve-out that will exclude an amount ofincome that is 5% of the carrying value of tangible assets and payroll. In atransition period of 10 years, the amount of income excluded will be 8% of thecarrying value of tangible assets and 10% of payroll, declining annually by 0.2percentage points for the first five years, and by 0.4 percentage points fortangible assets and by 0.8 percentage points for payroll for the last fiveyears.
The GloBE ruleswill also provide for a de minimis exclusion for those jurisdictions where theMNE has revenues of less than EUR 10 million and profits of less than EUR 1million.
The GloBE rulesalso provide for an exclusion for international shipping income using thedefinition of such income under the OECD Model Tax Convention.
To ensure that theadministration of the GloBE rules are as targeted as possible and to avoidcompliance and administrative costs that are disproportionate to the policyobjectives, the implementation framework will include safe harbours and/orother mechanisms.
It is agreed thatPillar Two will apply a minimum rate on a jurisdictional basis. In thatcontext, consideration will be given to the conditions under which the US GILTIregime will co-exist with the GloBE rules, to ensure a level playing field.
Subject to taxrule (STTR)
IF membersrecognise that the STTR is an integral part of achieving a consensus on PillarTwo for developing countries. IFmembers that apply nominal corporate income tax rates below the STTR minimumrate to interest, royalties and a defined set of other payments would implementthe STTR into their bilateral treaties with developing IF members whenrequested to do so.
The taxing rightwill be limited to the difference between the minimum rate and the tax rate onthe payment. The minimum rate for the STTR will be 9%.
Pillar Two shouldbe brought into law in 2022, to be effective in 2023, with the UTPR coming intoeffect in 2024. A detailed implementation plan is set out in the Annex.
Annex. Detailed Implementation Plan
This Annexdescribes the work needed to implement the two-pillar solution described in thebody of the Statement. It also sets out a timeline for that process, includingthe key milestones for the Inclusive Framework (IF) going forward, noting thatbespoke technical assistance will be available to developing countries tosupport all aspects of implementation. IF members recognise the ambitiousnature of the timelines contained in this implementation plan and are fullycommitted to use all efforts within the context of their legislative process inachieving that goal.
Amount A, theremoval of all Digital Service Taxes and other relevant similar measures on allcompanies, and Amount B will be implemented under the Pillar One solution, asdescribed below.
Amount A will beimplemented through a Multilateral Convention (MLC), and where necessary by wayof correlative changes to domestic law, with a view to allowing it to come intoeffect in 2023.
In order tofacilitate swift and consistent implementation, an MLC will be developed to introducea multilateral framework for all jurisdictions that join, regardless of whethera tax treaty currently exists between those jurisdictions. The MLC will containthe rules necessary to determine and allocate Amount A and eliminate doubletaxation, as well as the simplified administration process, the exchange of informationprocess and the processes for dispute prevention and resolution in a mandatoryand binding manner between all jurisdictions, with the appropriate allowancefor those jurisdictions for which an elective binding dispute resolution mechanism applies with respect to issues related to Amount A,thereby ensuring consistency and certainty in the application of Amount A andcertainty with respect to issues related to Amount A. The MLC will besupplemented by an Explanatory Statement that describes the purpose andoperation of the rules and processes. Where a tax treaty exists between partiesto the MLC, that tax treaty will remain in force and continue to governcross-border taxation outside Amount A, but the MLC will addressinconsistencies with existing tax treaties to the extent necessary to giveeffect to the solution with respect to Amount A. The MLC will also addressinteractions between the MLC and future tax treaties. Where there is no taxtreaty in force between parties, the MLC will create the relationship necessaryto ensure the effective implementation of all aspects of Amount A.
为便于快速且一致地实施金额A，将开发多边公约以建立所有辖区均可加入的多边框架，无论相关辖区之间是否已经签订有税收协定。多边公约将包括关于确定与分配金额A、消除双重征税的必要规则，以及简化的征管程序、信息交换程序、适用于所有辖区的强制性有约束力的争议预防及解决程序。多边公约也将包含适当允许相关辖区对与金额A 有关事项争议选择适用有约束力争议解决机制的规定，以确保金额A 执行的一致性和确定性，及与金额A有关事项的确定性。多边公约将辅以解释性声明，说明规则和程序的目的及运作方式。如果多边公约缔约方之间已签订有税收协定，相关税收协定仍然有效，并将继续规范金额A以外的跨境税收。但为使金额A解决方案可有效执行，多边公约将对其与现行税收协定不一致之处进行必要的处理。多边公约也将明确其与未来签订的税收协定间的关系。如果缔约方之间没有现行有效的税收协定，多边公约将确立缔约方之间的法律关系，以确保金额A有效实施。
The IF hasmandated the Task Force on the Digital Economy (TFDE) to define and clarify thefeatures of Amount A (e.g., elimination of double taxation, Marketing and DistributionProfits Safe Harbour) and develop the MLC and negotiate its content, so thatall jurisdictions that have committed to the Statement will be able toparticipate. The TFDE will seek to conclude the text of the MLC and itsExplanatory Statement by early 2022, so that the MLC is quickly open tosignature and a high-level signing ceremony can be organised by mid-2022.Following its signature, jurisdictions will be expected to ratify the MLC assoon as possible, with the objective of enabling it to enter into force andeffect in 2023 once a critical mass of jurisdictions as defined by the MLC haveratified it.
为确保所有承诺加入声明的辖区都能参与，包容性框架委托数字经济工作组（TFDE）定义和明确金额A各要素设计（例如，消除双重征税、营销及分销利润安全港），开发多边公约并就其内容进行协商。数字经济工作组将努力在2022 年初完成多边公约及其解释性声明文本，以便尽快开放多边公约签署并在2022 年中举行高级别的签署仪式。在签署多边公约后，各辖区需尽快核准多边公约，目标是在根据多边公约规定的关键多数辖区完成核准程序后，能于2023年立即生效执行。
Removal andStandstill of All Digital Services Taxes and Other Relevant Similar Measures
The MLC willrequire all parties to remove all Digital Services Taxes and other relevantsimilar measures with respect to all companies, and to commit not to introducesuch measures in the future. A detailed definition of what constitutes relevantsimilar measures will be finalised as part of the adoption of the MLC and itsExplanatory Statement.