Why tax governance is key in an era of more tax risk and controversy

Survey results show tax authorities’ focus over the last two years – which included strong attention on auditing beneficiaries of COVID-19 relief measures – is giving way to a shift back to both traditional areas of scrutiny and examinations of compliance with newer tax laws, such as anti-hybrids legislation. Just 22% of respondents say they anticipate a tax audit related to a COVID-19 stimulus or support measure in the next two years, versus the 35% who say they experienced one in the previous two.

“Tax enforcement priority areas are quickly looking far more typical,” says Martin Caplice, EY Asia-Pacific Tax Controversy Leader. “Authorities are focused on the more familiar territories of transfer pricing, cross-border transactions and indirect tax compliance and enforcement is looking far more routine,” 

The work-from-anywhere phenomenon catalyzed by COVID-19 also generates concern among tax and finance executives. Twenty-nine percent of survey respondents say they expect new tax disputes over work-from-anywhere policies in the coming two years, including on issues such as the all-important question of whether a remote employee unknowingly creates a permanent establishment (PE) in a jurisdiction, triggering tax obligations. That is an increase from the 24% who say they experienced this in the previous two years, and an area to monitor.

Rising indirect tax risks

Tax and finance executives indicate that challenges around indirect taxes are also growing. Broader tax bases for value-added taxes, including a heightened focus on services and PE issues by tax authorities ranked as the top cause for concern, identified by 42% of respondents. Thirty-six percent said a lack of documentation to substantiate the application of lower or zero-rated supplies (such as proof of delivery or the licenses of customers) was a concern, while digital services taxes – theoretically set for withdrawal as a result of BEPS 2.0 negotiations – ranked as the third biggest indirect tax risk, securing 35% of responses.

“Indirect taxes are often the go-to revenue source for governments during times of crisis,” says Kevin MacAuley, EY Global Indirect Tax Leader. “After loosening indirect tax rates and broadening exemptions during COVID-19, many countries are now swinging back to the other side of the pendulum and broadening the base, if not the rates, of these taxes, increasing the number of taxes and increasing enforcement.”

Survey results indicate that several other sources of tax risk and controversy still linger. For example:

• 24% anticipate warnings or actual use of criminal penalties and prosecution by a tax authority in the coming two years.
• 29% are worried about reputational risk to their business as the result of a tax dispute.
• 43% say a lack of clarity internally on how tax fits into their overall organization governance structure poses their biggest business risk as it relates to taxes.
• 37% say failure by local entity professionals to follow the organization’s tax processes is their second largest business-related risk.
• 32% said the tax implications of business restructuring pose challenges.

All of these risks – whether they come from externalities or internal disfunction – can be better managed with improved tax governance. This is the first area on which global businesses hoping to better manage tax risk and reduce the incidence of tax controversies should focus.

Better tax governance – focusing on people, policies, processes and controls – can help accomplish three things.

• First, it underpins any global framework approach to managing tax controversy and better equips the business to identify tax risks earlier and manage any disputes that do occur more effectively.
• Second, it creates an opportunity to more closely link tax to the organization’s broader objectives, including those related to ESG, not only improving the level of confidence of multiple stakeholders but potentially even securing additional budget and resources for the tax function during the process.
• Third, it supports the enterprise in meeting the myriad governance-focused programs now being adopted by tax authorities globally.

Most tax and finance executives say their enterprise has many elements of tax governance in place, including tax policies, detailed policy and procedures manuals, and accountability matrices that define who does what, when, how, and where. Collectively, these elements are the keystone to any framework approach to managing tax risk and controversy more effectively.

Having the elements in place is one thing. Continuously executing them in harmony with each other, as well as with other parts of the business, is another. Here, survey respondents reveal several areas where harmonious execution is lacking.

First, from an operational standpoint, tax processes and protocols should tightly align and interact with an enterprise’s lines of business and support functions, each of which will likely follow the enterprise-wide governance approach. Alignment with this wider strategy should therefore be an imperative for the tax function. But almost half (43%) of tax and finance executives say they lack clarity about how tax fits into their organization’s broader governance structure. This can erode the tax function’s effectiveness and was the leading business risk identified by survey respondents.

Second, the tax function should maintain strong relationships and communication with wider business decisions and activities. But many of the most senior tax leaders say their tax function falls short of this goal. Sixty-one percent, for example, say that the tax function is rarely, sometimes or never involved in significant changes to business activities, including business model changes, new products and new services. Similarly, more than half (60%) of this group say they are rarely, sometimes or never involved in either changes to their own corporate structure or M&A deals pursued by their company (58%).

Finally, adherence to a corporation’s tax processes by local entity finance personnel is key to effective tax governance, and hence tax risk and controversy management. Without it, local entity personnel – often referred to as the “shadow tax function” – may be tempted to try to manage ongoing tax risks, disputes or litigation cases that may have wider implications for their company. Eighty-two percent of respondents say that gaining control in this area would deliver some or significant value to their enterprise.

Looking forward, 69% of tax and finance executives say they expect their organization’s overall focus on tax governance to grow in the coming two-year period. That is important because the new wave of risk and controversy, coupled with new revenue authority requirements around governance, will test the resiliency of organizations’ current tax governance models.

Tax and finance executives can test their tax governance model as it relates to tax risk and controversy in several ways. The first, which is definitely not recommended, is to wait and see whether new disputes arise. Second, companies already participating in mandatory tax compliance assurance programs (in jurisdictions including Australia, Germany, the Netherlands, New Zealand and the UK) can expect periodic feedback from the tax authority as to the rigor of their model. Third, they may choose to participate in one of the many voluntary tax authority programs that review and test the efficacy of their governance capabilities, such as in Singapore and Malaysia.

Tax and finance executives generally have positive outlooks on such voluntary programs. Fifty-nine percent say they are somewhat or very likely to participate in them where available, while 22% say they are already participating. Just 19% percent say they are somewhat or very unlikely to participate.

Better data is a critical way to equip any tax governance model with the insights to effectively manage tax risk and controversy. This is the second area that should be prioritized.

While overall tax and financial data management is not a responsibility of tax controversy specialists, these professionals will have a vested interest in making sure that the right data is always available; a tax return based upon accurate data is always preferable to trying to source and explain additional data or evidence after filing has occurred.

Perhaps first and foremost, tax functions need to ensure that appropriate time is spent upfront identifying the right data and ensuring it can quickly be accessed if an audit or examination does occur. “Better data from a transfer pricing perspective centers upon a spectrum of different sources,” says Fultz. “Generally speaking, the tax function needs detailed and accurate financial information, legal agreements, business documents and more. The requests for this data come early in exams, and delays in responding to financial data requests can do irreparable harm to an exam relationship.”

Second, tax functions need better data – and insights – around active tax audits and disputes. To accomplish this, data must be accurate, current, replicable and available.

“Tax function leaders also want full visibility of disputes in order to understand where their biggest or most urgent exposures lie,” Coronado says. Yet the survey results indicate many are falling short of this goal. Just 25% have complete visibility over all disputes globally, virtually the same number as in our 2021 survey (24%). Nearly half – 45% – say they have “substantial” visibility, defined as more than 75% of their disputes. Twenty-six percent have only partial visibility, defined as 25% to 75%.

One reason for this might be that gaining better visibility requires the right processes to be in place to communicate data to the right people who can interpret and manage it. In essence, more centralized tax functions need data around disputes to be communicated to them by local professionals who may often sit outside of the tax team.

Ideally, data captured from accurately tracking tax disputes can also be analyzed to produce new insights that can help predict where and on what topic a future audit may occur.

“Executing a robust data strategy doesn’t just mean that audits and examinations can be responded to in a timely manner,” says Joel Cooper, EY Global International Tax and Transaction Services Controversy Leader. “More broadly, the better an organization’s access to clean, segmented and accurate data, the more time that can be dedicated to strategic issues – including being more proactive in identifying and managing new risks, stopping them from turning into disputes.”

Taxpayer data goes public

The prospect that CbCR filings will soon become public in many jurisdictions was of particular concern to respondents, given the potential reputational risks that may occur as activists and the general public try to interpret this complex yet summary information. As a result, tax function leaders will need to create an ongoing process whereby all CbCR filings and existing public disclosures (such as narrative descriptions or total tax and social contribution models) are reviewed as and when new CbCR reports are published. This will represent a heavy burden on the tax function; automating some or all of the data-related tasks will be important.

Moving forward, tax controversy specialists will need to have a solid understanding of data science, clear visibility of what data is available to support their objectives and be empowered to mandate changes in the tax function’s data strategy (and operations) as and when needed to support controversy management objectives.

Not knowing how much tax will need to be paid in any given year is a common source of uncertainty, however large or small a business may be. That uncertainty, which the survey indicates will likely grow in the short-to-medium term, can often translate into the need to create a tax provision of substantial size for many companies. In extreme circumstances, a dispute or litigation can even trigger a financial restatement.

As a result, most businesses seek to increase tax certainty whenever and wherever they can in an attempt to either prevent disputes in the first place or to better address disputes that do occur. Creating certainty involves both internal activities and the consideration of a spectrum of tools and programs offered by many revenue authorities. Tax function leaders who have strong governance and better data in place will be in the best position to fulfil this quest for advance certainty.

“Businesses understand that they have tax obligations, but a lack of clarity around what those liabilities actually are can often be more impactful than the actual amount due,” says Cooper. “It may seem paradoxical that tax certainty can be achieved in such an uncertain world, but there are definitely ways to increase it.”

Looking at the tax function’s internal activities first, survey respondents say that being more proactive in identifying and managing tax risks before they turn into disputes would bring the highest value to their tax function in the next two years. The larger the enterprise, the more likely they were to subscribe to that view.

Managing tax risks is contingent on first being able to identity such risks, achieved via the establishment of effective tax risk assessment protocols. Again, success in this area requires the commitment of not only central tax function resources, but also collaboration with local tax and finance personnel.

Once emerging risks are identified, tracking them through the controversy lifecycle is critical. Businesses that are already actively moving in this direction typically complete three important activities, usually in a set order:

• First, they create a tax risk “register.” This helps alert tax leaders and controversy managers to new tax risks at both central and local entity levels. Eighty-three percent of tax and finance executives say that adopting such a risk register would deliver some or significant value.
• Second, they link tax risk assessment results to tax risk management processes. That might involve amending an internal tax control or utilizing a revenue authority tool such as an Advance Pricing Agreement (APA).
• Third, they use the risk assessment results to identify those transactions for which auditable, transparent and supporting documentation should be created. Eighty-four percent of tax and finance executives say that improving the contemporaneous documentation of certain transactions to increase overall tax audit readiness would deliver some or significant value to their organization.

Prevention is better than cure

Externally, many tax authorities offer a variety of programs that may help a taxpayer achieve higher levels of tax certainty (but not necessarily legal certainty) that the positions they take on their tax return won’t be audited.

These programs span both pre- and post-filing phases. Pre-filing programs include securing tax rulings or APAs, where 80% say that securing one or more APAs would deliver some or significant value. That’s not surprising given the number of companies that are actively trying to secure new APAs in advance of Pillar Two’s implementation.

Also available in the pre-filing period are various cooperative compliance programs, both at the national level (such as the Dutch horizontal monitoring program) and multilaterally, in the case of the OECD-supported International Compliance Assurance Programme (ICAP), now adopted by 22 jurisdictions. But less than half of respondents (48%) say they currently execute a clearly defined, proactive, cooperative compliance strategy.

Tax disputes will often occur even after all best efforts to prevent them have been exhausted. Here, the breadth and scope of documentation required by tax authorities is rapidly expanding, but tax and finance executives indicate that work remains if business is to keep pace with the authorities’ demands. Some 54% of respondents, for example, say they don’t currently create and maintain substance or business activity-based tax documentation files that can be called upon if a transaction is audited. Coincidentally, the same proportion say they select key transactions and periodically review the supporting documentation. This is one area in which survey respondents may wish to consider investing more time.

Both the existence and the outcome of a tax dispute can dramatically reduce tax certainty. Proactive tax leaders therefore tend to consider what can be done to increase tax certainty at both the outset of and during a dispute itself. Tax and finance executives say, for example, that their leading priority is to try to better understand the tax authorities’ concerns and objectives before a tax audit commences. They will also put processes in place to help ensure that any settlement considers the potential multiyear, multijurisdictional “red flags” and knock-on effects. Finally, proactive tax leaders will enter each audit or dispute with as much knowledge of the local audit process and cultural approaches as possible.

It’s never too late to look for resolution

When disagreements do result in new tax assessments, dispute resolution programs can also contribute to higher levels of tax certainty. Central to resolving cross-border double taxation disputes and obtaining relief from double taxation is the Mutual Agreement Procedure (MAP).

MAP is one of the main tools available to companies for resolving such disputes, and peer reviews (under BEPS Action 14) have spurred changes regarding the structure and organization of competent authorities, streamlining their processes for resolving MAP cases in a timely manner.

The results of the OECD’s work are only slowly starting to be more visible; 37% of tax and finance executives (one percentage point higher than in our 2021 survey) say they use MAP, though this figure does grow among the largest companies. However, many businesses may not be aware that MAP can be used to address a spectrum of issues concerning taxing rights, beyond transfer pricing and profit allocation. Given Pillar Two and other developments, consideration of MAP will become even more important.

When agreement between taxpayer and tax authority is simply unachievable, tax litigation may be the only way to proceed. But nearly two-thirds (64%) of respondents say they don’t have a defined tax litigation strategy.

Looking ahead – to Pillar Two implementation, public CbCR and the implementation of a multitude of new local transparency and disclosure requirements – any efforts to achieve higher levels of tax certainty will be paramount.

Certainty in an uncertain world

Many tax functions are now moving to centralize and combine more of their controversy processes, localizing policies and controls and putting in place well-defined tax controversy roles. These activities are designed not to withdraw responsibility from local professionals, but to collaborate more closely in identifying and managing risks and avoiding exposures.

Any degree of tax certainty that can be secured in an uncertain world is safer, smarter and more strategic than sitting back and hoping for the best. A tax function that is better connected to the business through a robust tax governance framework and that makes use of the latest data capabilities will be in a position to contribute more value to the organization’s overall objectives, be they related to ESG, long-term value or protecting the enterprise. And that turns risk into opportunity. 

Summary

The need for strong tax governance has emerged as a basic necessity in the effective management of tax risk and tax controversy, the EY 2023 Tax Risk and Controversy Survey finds. Strong tax governance, improved data capabilities and obtaining greater tax certainty can help the tax function provide more long-term value to their organization.