How unilateral digital services taxes put global tax reforms in motion

This episode of Tax and Law in Focus explores how the proliferation of DSTs has helped fast-track BEPS 2.0, triggering the biggest shake-up in international taxation for decades.

Key takeaways:

Unilateral DSTs are credited with galvanizing support for global minimum taxation and a re-evaluation of time-honored nexus rules, in respect of the digital economy.
There is already considerable political momentum behind the minimum taxation rules outlined in BEPS 2.0 Pillar Two, with legislative activity in both the US and EU.
There continues to be significant unanswered questions about how BEPS 2.0 Pillar One tax allocation rights will work. It is unclear to what extent jurisdictions will relinquish tax revenue and whether they will be willing to do so.

For your convenience, full text transcript of this podcast is also available.

Introduction

Susannah Streeter

This is ´The EY Podcast – Tax and Law in Focus´ from one of the world’s largest and most influential group of C-suite advisors. I am your host Susannah Streeter and today we’re focusing on digital services taxes. Moves to bring in these highly controversial taxes by countries across the world have led to arguably the biggest shake up in international taxation for several decades. They are what drove the United States to put its weight behind the ambitious OECD-led proposals to update the rules of international taxation to better reflect the digitization of the global economy. And they have narrowly avoided provoking another trade dispute – with threats of tariffs on a whole range of goods from shoes and champagne to motorbikes and cheese. There is now agreement from a raft of European countries to phase out digital services taxes once the first project of the new global tax blueprint is brought in – known as pillar one of the BEPS 2.0 deal. But this high-stakes game isn’t over yet – agreement still hasn’t been reached between the US and other nations which have dangled the threat of digital services taxes. So it’s a fast moving world and in this podcast we’re going to be exploring the issues at stake, the risks to be aware of and just what business should be doing to respond, especially given the global agreement on the OECD’s ambitious new taxation framework. I’m really delighted to be speaking to three of the best-informed professionals, in tax across geographies and time zones to bring you deep insights into one of the most challenging, and contentious themes in international taxation. But before I introduce them – please remember conversations during this podcast should NOT be relied upon as accounting, tax, legal, investment nor other professional advice. Listeners must consult their own advisors. So, without much further ado let me introduce Barbara Angus, the Global Tax Policy Leader for EY who is joining us from Washington DC.
Hello Barbara – I hear you were also a card-carrying member a comedy troupe, but we’re expecting more than just a few one liners from you today – given that you have also had a had a long and distinguished career working with the US Congress and US treasury and in the private sector as well.

Barbara Angus

Happy to be with you Susannah for this discussion.

Streeter

Great to have you here. Thank you. Also joining us from Silicon Valley is EY International Tax and Transaction Services Global Tech Tax Leader Channing Flynn. Hello, Channing. It’s really great to have you with us as well.

Channing Flynn

Hi, Susannah. It's a pleasure to be here. Look forward to our discussion today.
Streeter

And on the line from Hamburg in Germany is EY’s Matthias Luther, Global Leader of the Digital Services Tax Activation Team. Hello, Matthias wie gehts?

Matthias Luther

Danke. Sehrr gut. Happy to be with you.

Streeter

Sehr gut. Okay. Thank you very much to all of you for being with me. But I'm going to start with you Channing seeing as you're coming to us from Silicon Valley, it makes sense. So tell me, what is it about the digital economy that merits the extra attention from tax authorities? I mean, there isn't a consulting services tax or construction services tax, after all.

Flynn

Yeah, Susannah, I get this question a lot. I mean, and in fact, if you look back through modern history, there are in fact very sector-oriented taxes. We've seen taxes on oil and gas companies and taxes on financial services institutions, including consumer banks and commercial banks, and even taxes on transportation like the airlines and other transportation organisations. So, we've seen specialised taxes before. The digital economy is unique, because of course it is ethereal. It's over the internet. And because one company and one country can do business in another country without having to actually go to that other country, it raises the spectre of who should be paying taxes where. The digital services taxes that we see today, and they're going to be the focus, Susannah of our conversation today, have really been in my mind used as a stick to get parties to the bargaining table to talk about reform to the global tax system, the pillar one initiative that you mentioned in your introduction. So this is coming about because there is a view, there has been a view for six or so years that companies in the digital domain aren't paying the right amount of taxes in the countries from which they extract their business revenues and profits. And so they're really being used as a catalyst to get parties to the table to talk about a global pillar one system to change it. So that's, I think, how it came about.

Streeter

And is that what prompted nations to individually introduce digital services taxes and almost prompt this flurry of tariffs on goods?

Flynn

Yeah, that did get a bit emotional over the last few years that is certainly true. I think that some countries moved ahead faster than others because they were trying to exert pressure on the OECD to do the larger reform initiative in the pillar one framework that that you mentioned, and we'll discuss a bit today. So the UK and France got a bit out ahead of the other countries because they said we want reform in this area to come faster. And then other countries sort of jumped on board that initiative. And what we have now is unfortunately, an incongruent global patchwork of DSTs, all of which apply differently and different transactions, some are broader, some are narrower, and they're not really coordinated, which represents uncertainty for so many global organisations. And so the goal to withdraw them and get back to the drawing board as to what a new system could look like, is important. It did get a bit emotional, Susannah with respect to, they sound like tariffs, right? You use the word tariffs. And in fact, many countries view them as components of a larger trade war initiative. And so many countries don't like that, right. They want to pull them back and get back to an agreement on a framework that works for everybody fairly. And so implicating them with taxes on cheese and, and luxury goods gets people to the bargaining table pretty quickly.

Streeter

Absolutely. Okay. Let me bring in Matthias. So, Matthias, many European countries were early adopters. Why were these taxes driven through? Just why were they so high on the agenda, do you think?

Luther

Channing has already pointed out you had this political pressure, where you've seen disruptive and new economies and new companies emerging being very, very successful, often at least perceived being located in the US, and then also being perceived as companies who do not pay their fair share in the countries where they generate their profit. And this political pressure, I think, was the main purpose behind introducing DSTs. Together with a, let's say, difficult diplomatic situation in the last few years between US and Europe, but it has changed a little bit now. And it might make it maybe difficult to see these taxes go quickly. That is that the countries which have introduced DSTs, obviously generate revenue out of it, and they don't put it on a bank account or just decide to pay it back. They spend it and they are used to spending it now and it's like a drug. It's very difficult to get rid of something where you now rely on your daily business or your daily spending.

Streeter

Yeah, absolutely. Well, let me bring in Barbara, because, Barbara, you've been previously been pretty intricately involved with making US tax policy and driving tax reform. So how has the official US position on this evolved?

Angus

You know, Susannah, it's interesting, I would say that the US position on digital services taxes has been remarkably stable, over several administrations. So dating back to the Obama administration, the position with respect to specialised taxation of digital businesses, or digital business activity, was it was it was both inappropriate and impossible, and impossible in the sense that it is not, possible or practical to define what is a digital business or what is digital activity, particularly in an area that is evolving technologically so rapidly. And that position that began in the Obama administration continued through the Trump administration, and the Biden administration. At the same time, we've seen bipartisan opposition to digital services taxes, expressed in Congress, multiple letters over many years written by the chairman and ranking minority member of each of the tax-writing committees. So joint letters, expressing concern that digital services taxes are discriminatory and inappropriate and expressing support for instead addressing any issues related to the taxation of the digital economy through coordinated multilateral efforts, such as the OECD project. I wouldn't necessarily interpret that as being a support for all aspects of the work that the OECD is doing, but expressing the importance of a coordinated approach that could be done through that kind of multilateral effort.

Streeter

Do you think there was a bit of a feeling in the United States that the countries imposing and advocating for various DSTs are unfairly targeting the success of US tech giants?

Angus

I think that was a very strongly held view and looking at the design of some of the digital services taxes and the thresholds for being subjected to them really show that they do disproportionately affect companies of the size of the US companies. And in some countries, that targeting of US companies was absolutely explicit. And I think that also was the basis for the trade effort that began in the US the USTR, using its authority under Section 301, to bring a trade action, and concluding that the taxes were discriminatory, which led to the development of the tariffs in response, and that also as something that has been remarkably stable and began in the Trump administration, and continued in the Biden administration. And that bipartisan view of these issues is quite unusual in Washington these days where, where there are such strong partisan divisions.

Streeter

Yeah, it's an interesting development and of course, the US imposed and then suspended those punitive tariffs on imports from countries such as France and the UK over the issue. Channing, to what extent do you think the US stance was driven by concerns from big tech?

Flynn

Yeah, I think substantially so Susannah, in the sense that well, first of all, big tech is, you know, a loose term, I think there's so many tech companies, and big tech often gets associated just with a handful of them. So my role and my perspective is that anyone that operates in the digital domain needs to be worried about these, not just a handful of companies that typically make the news in this area. And that's really the focus I try to push in our conversations globally, and with our clients. So all kinds of companies or tech companies, including those that were traditionally not tech companies, like an automotive company, for example, they worry about this. So that drove the US stance on this, how out of control could this get? It did feel when it came in Susannah, very targeted, or to use the term that's often referenced here ring-fenced, that it was just a tax on a few companies. It was designed that way by its revenue thresholds, meaning how big did you have to be before you were subjected to it, to these taxes, and they were on very specific types of transactions. So for example, on online platforms, or transactions in consumer data, or certainly online advertising income. So that felt very focused and very specialized, which raised the ire of these taxes as discriminatory, meaning they weren't equally applied. Obviously, big tech, I think the media defines that, all tech gets worried about that, because it has a little bit of a trojan-horse feel. Once you put taxes like this into play, and this is to Matthias’ point, jurisdictions get addicted to the revenue that they raise, and it's very hard to convince lawmakers to turn off that source of revenue. So I think that combination of things drove the perspective and raised the ire of not only the companies, but also our lawmakers and our representatives here that make the rules. And they say we need to focus, as Barbara indicated on a on a discussion path to get these things repealed, meaning to bring down the temperature in the room and focus on the larger reform initiative, that is pillar one.

Streeter

So do you think Barbara that it was the threat of these tariffs that really led to more support of these OECD proposals?

Angus

I think in thinking about tariffs, I'd come back to Channing’s point that the DST is in some ways a form of tariff. And really, when you look back at the origins of the concept of a digital services tax, it was a concept developed by the European Commission, and intended as a temporary measure that the ultimate solution to addressing the taxation of the digital economy was to develop a coordinated approach to new income tax rules, that would have a different way of dividing income taxing rights among jurisdictions to reflect the digitalization of the economy. And the DST was only intended as a temporary measure in the period while those rules were being developed. And I think just like many view tariffs as creating a barrier to global trade and investment that is so important to the global economy, digital services taxes, these unilateral taxes that can result in double taxation, provided a similar barrier. And I think having the combination of both the digital services taxes and the more traditional tariffs, I think it really reinforced the importance of countries getting together to focus on trying to work through the income tax system to come up with a solution.

Streeter

So, what's your take on this Matthias? Do you think it was seen as a temporary measure? Is that how you think companies saw these DSTs?

Luther

The governments in Europe saw it as a temporary measure, especially to generate pressure on – and I must say it – on the US to comply to support international agreement during the BEPS 2.0 project. What I found interesting is that tariffs were a traditional measure to ensure free trade of goods, and it's now used to fight a tax on a service, which shows how much the tax world is changing at the moment. It’s quite astonishing.

Streeter

It certainly has been astonishing. Let's now focus as well on this involvement of the OECD. It is a centre of deep expertise. And it's been, of course, as we know, highly influential in changing the tax landscape. But actually, this whole project had been in hand for some time, hadn't it. So Barbara, tell me more about the evolution of tax policy discussion at the OECD and how it works. And just how BEPS 2.0 has come about

Angus

The BEPS 2.0 project really is unprecedented for the OECD in many respects. It is a project that is much bigger and broader than the OECD. It involves much more fundamental changes to the global tax system than the OECD has tackled in the past, and therefore it has more significant political dimensions. The project is being done by the OECD in partnership with the G20. And the OECD has partnered with the G20 really since the G20’s creation about 12 years ago, and between the members of the OECD and the G20, when you include the European Union countries, because the European Union has a seat in the G20, number about 50 countries. But this BEPS 2.0 project is being done through the OECD G20 inclusive framework that is now up to 141 countries. So a truly global project involving countries with very, very diverse economies, and very different perspectives on taxation. And the project built on an earlier project done by the OECD and the G20 on base erosion and profit shifting, which is where this got the BEPS 2.0 name. But this goes to much more fundamental changes. And so pillar one, which seeks to change how taxing rights over global business income are allocated between and among countries really involves the ultimate political question. So it doesn't get more fundamental than that. But pillar one came out of the prior project that had an element focused on the digital economy, where at the time in the first project, they weren't able to reach agreement on the kinds of fundamental changes that they're tackling now, and tackling them with more countries at the table, which both makes the project more complicated. But also, I think for something like pillar one is important to have it be truly global, because the idea of changing how taxing rights are divided requires, you know, unprecedented coordination and cooperation among countries so that everyone agrees on those same new divisions. The second element of this project, pillar two, the proposals for new global minimum tax rules, was initially introduced as being about addressing remaining opportunities for base erosion and profit shifting. But pretty quickly, it became clear that it was really about countries wanting to address low-rate tax competition among countries. That also then goes to pretty fundamental political questions and the core sovereignty of countries over tax. So a very unusual and ambitious project for the OECD.

Streeter

Certainly, it's so ambitious and Channing, do you think the adoption of BEPS 2.0 really does signal the end of unilateral DSTs in various economies?

Flynn

If I knew the answer to that question, Susannah, I think I'd be at a much higher level in the world than I am right now. My view of your question is no, unfortunately, and I don't mean to be a cynic, but I think the digital services taxes that we've seen brought into effect, that are planning on going out of effect on successful adoption of the BEPS 2.0 framework. I do think Susannah, those will go away. Again, they are revenue threshold meaning they apply to certain companies of certain size and they apply to specific fairly esoteric types of transactions. I feel strongly that those will go away because that is part of the big bargain here that the US has struck with the OECD and the participating countries. So yes, on that, however, where my cynicism comes in on this is that taxing the internet is very appealing to many jurisdictions, because especially smaller jurisdictions, because these big organisations can digitally extract money from consumers or enterprises in other countries. And so finding ways to tax the digital economy, I think that trend will continue. Many countries, Vietnam and Israel to name two examples have nexus based taxes, which simply say, if you are set up in one country, and you do business here, say in Israel or Vietnam, then you will have to pay taxes on the mere fact that you're conducting your trade over the internet. And so those aren't digital services, taxes, they're just basically different types of taxes on digital economy. So I think that trend will continue. And we'll talk a little bit about an example of that in the EU, something known as the European Union Levy. And Matthias will chat a bit about that in a moment. So I think the DSTs is part of the BEPS 2.0 framework project will hopefully go away. But I do believe that jurisdictions will always look to the internet and the digital economy that's conducted on the internet, and seek sources of revenue in that regard.

Streeter

Okay. Well, thanks very much for that Channing. Let me hand over to Matthias. Now, can you define, for example, how the digital levy is distinguished in Europe from the DSTs currently in force?

Luther

Yeah, happy to. You need to know that we do not have a final proposal for the digital levy yet. So it's a little bit of guessing. But there are some simple truths, which apply. First of all, the digital economy is regarded as being the winner of the pandemic versus budgets, state budgets being the losers. So the states need to raise new taxes, they need to increase their revenues to balance out the pandemic leave measures they have introduced, and obviously then turn to the one economy, which they think still has money, where they can get more tax revenue from these digital companies, which are targeted and which are targeted to be taxed, mostly foreign companies, meaning you can increase your revenue without creating new taxes for your own taxpayers for your own voters. And the digital levy will be I think the role model for similar taxes around the world. And the EU has a problem that they do have a pandemic relief package. And they have agreed that half of that package should be financed by the digital levy. So they are forced to introduce a digital levy. Because if that fails, they need to come up with something else to generate the revenue which they desperately need. And I think that's the situation a lot of countries are in around the world. And if the EU finds a way to introduce a digital levy, which is not infringing the agreements, by the inclusive framework on abolishing a digital services tax, then I think this, whatever the solution found by the European Union, will be quickly introduced by other countries around the world which have simply the same issues and need to solve them and are looking for a solution where they can generate revenues without having to tax their own voters.

Streeter

And would you agree, Channing? Obviously, as Matthias is saying, we still don't know the details of exactly what the design will be. But what do you think the latest developments are indicating?

Flynn

I think pillar one is about allocating taxing rights. And again, the cool thing in my view, and as intended by the OECD about pillar one is it doesn't just apply to esoteric transactions on the internet, it can potentially apply to any type of company that meets their definitions of subjecting profits in one country to tax where the consumers are. So it is intended as the big policy, agreed upon, consensus replacement. Remember when I said earlier, Susannah, that the DSTs in my mind were put in place as sort of the stick in the carrots and sticks analogy, to get the parties to the table to agree to something like pillar one. Pillar one is what we have. That's what they've said they want to move forward with and I think people understand it, and are willing to discuss about how to do it. So I think that the weird thing about the pillar one is that there's so many unanswered questions about how it will work. Remember that in the pillar one world, one country has to give up taxing rights to another country based upon the fact that the consumers paying for the digital economy good, or service is in that country. And that is going to cause some people to say, wait a minute, am I winning or losing in this agreement? And so that design feature still hasn't been worked out at the technical level, which I think people are waiting for. And in the meantime, I think the DSTs will continue in force until there is an agreement on that, then we must continue to think Susannah of the fact that pillar one may not be successful. I think lots of people believe that pillar two has been agreed upon and will be our new minimum tax policy framework. I think there's a lot of optimism there. But pillar one is a great policy response, because it addresses the issue for which the DSTs were brought into force. But because it's so complicated, and politically, I think challenging for all countries to agree to, it's not 100% certain that, as designed, it will be brought into force in a couple of years. So that design feature still has to be worked out.

Streeter

So that's pillar one. But let me bring in Barbara. So what's your best guess then about pillar two and when it will be adopted? At what rate? And do you have any kind of timescale?

Angus

Well, pillar two actually is moving quite quickly. There's a lot of political momentum behind it. The OECD G20 target is to have new global minimum tax rules in place by 2023. And we're already seeing legislative activity, there is current activity in the US to make changes to the existing US rules to bring them in line with the OECD/G20 global minimum tax design. And the EU has plans to introduce a directive, put it out in draft form, at the end of this year, to mandate that EU countries put global minimum tax rules in place. So legislative activity is beginning already.

Streeter

So that's a kind of timeframe, I want to bring in Matthias now. Given that you lead the firm's efforts in helping companies determine and compute taxes on the digital economy, what do you think the real key issues are, that companies are struggling with right now in complying with DSTs?

Luther

Now, the main issue is that it is only a temporary tax. So how much do you invest to actually comply with. It's a huge burden on companies for something which is just temporary, and it contributes to a lot of insecurities these companies have with regard to a radically changing tax framework around the globe, especially considering then a lot of more traditional companies, and I'm talking actually a lot to traditional companies about digital services taxes, are changing and have to change their business models and move towards more digitalized business models. So they are entering an area of taxes where they have no experiences, being more traditional companies so far.

Streeter

Yes, I mean, there are risks aren't there, huge risks. Channing what do you perceive is the biggest risk for businesses right now?

Flynn

Yeah, I think the evolution of it and how the pillar one consensus will evolve relative to the repeal of the DSTs, Susannah, sort of the query that you set out earlier in our podcast today. So a risk is that you get pillar one and DSTs stay in effect, because jurisdictions don't agree that the objectives were fulfilled. I think that's a large risk. I think another risk… remember the DSTs and similar taxes on the digital economy, Susannah, are imposed on revenue, which is a different type of tax than one opposed on your profit. And so I think a business risk that organisations that operate in the digital economy foresee and worry about is, ‘are we paying taxes all over the world on our revenue’? And how is that going to impact our cash flow? How is that going to impact our ability to invest and grow markets and make acquisitions in new technology? So, you know, nobody likes paying taxes, but we're all resigned, that we have to pay fair taxes. And I think the summary is that people understand they have to pay taxes when they make money and certainly make money over the internet. The internet is nothing more than a medium on which companies conduct business. But feeling that you're being taxed unfairly or taxed unjustly, is a business risk they worry about and so how do you structure your online business, your digital business in such a way that you feel you're contributing to the global tax take effectively, but you're not being targeted and you're not paying more than your competitor based upon where you're situated in the world. So I think those are the risks that people worry about.

Streeter

So let's look into the crystal ball now and I want to ask each of you before you go, how you believe the future is going to play out. So, Barbara, tell me, how do you think the taxation of the digital economy will evolve after all of this?

Angus

I would expect it to continue to evolve. I think they're looking at significant changes to deal with the digital economy right now. But they may need to make more fundamental changes. And they've got to deal with the fact that the technology is changing every day. And so, how can they develop rules that will be right for the current technology and also work for the for the technology that's invented tomorrow?

Streeter

Absolutely. And Matthias what in your mind are the likely scenarios that might play out? And what kind of timeline?

Luther

My hope is actually that we will see more harmonization in how the two economies tax around the globe. So to make it easier for companies to comply, however, I'm afraid I think we will see a more complex tax framework in which companies are struggling, and yeah, need to become experts and a whole different way than they are operating at the moment and tax departments operating at the moment.

Streeter

Okay thank you very much. And finally, Channing a big question for you. What do you think the next big reform of global tax will look like?

Flynn

Wow, give me give me the hard question. At the end. I'd like to say I think Barbara and Matthias’ points about what's coming next, and what they worry about are spot on. I think what's coming next is, obviously we're going to see consensus around the concept of a global minimum tax – that's already happening. We're going to get some details later this year. And so that is moving forward. The reallocation of taxing rights for which the DST has been the stick to motivate people to the negotiating table. I think that's not going to advance as smoothly as many hoped for. And I think that it will lead to additional discussions about how to effectively tax the internet, which is Susannah, what this all is really about, this isn't going to be resolved in 2021. And it certainly in my view is not going to be resolved, finally, in 2022. The internet is going to morph, to Barbara's points, new ways of business are going to continue to evolve as processing power and internet capacity expands and we get things like 5 and 6G our world is transforming and how governments around the world seek to tax it will continue to transform. So Susannah, that's good news for us in the sense that maybe we have to do another podcast on this topic in several months to a year's time. But that's my prediction as to where this is all going, meaning it will continue to evolve.

Streeter

Okay, Channing, thank you very much, and thanks to all of you for those quickfire answers on such a long-term horizon. But a reminder as well that this is merely informed speculation, as of course, bigger geopolitical forces than us are at play. It's been a really remarkable, insightful and information-packed episode on what's perhaps the most topical and high-stakes issue in taxation, so I would once again like to thank Barbara, Matthias and Channing for taking time to break the complicated technicalities down for the audience.

Flynn

Yes, thank you very much Susannah for hosting us. I thought it was very informed discussion. I think doing this in a podcast for our audience is fantastic. And look forward to doing it again, probably in 2022.

Angus

Thank you Susannah for the chance to be part of this lively debate.

Luther

Danke, it was a lot of fun and I really enjoyed it.

Streeter

For more information you can visit ey.com. And a quick note from the attorneys. The views of third-parties set out in this podcast are not necessarily the views of the global EY organisation nor its member firms. And moreover, they should be seen in the context of the time in which they were made. I'm Susannah Streeter and I hope you'll join me again for the next edition of Tax and Law in Focus brought to you by EY. EY, building a better working world.

Presenters

Susannah Streeter

International broadcaster and financial analyst

Podcast

Episode 6

Duration

33m 15s

EY refers to the global organization, and may refer to one or more, of the member firms of Ernst & Young Global Limited, each of which is a separate legal entity. Ernst & Young Global Limited, a UK company limited by guarantee, does not provide services to clients.

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How unilateral digital services taxes put global tax reforms in motion

Key takeaways:

Susannah Streeter