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  • Service: Tax
  • Type: Business and industry issue
  • Date: 12/18/2013

December 2013 

Welcome to the December 2013 edition of our quarterly Global Tax Disputes Update, bringing you the latest news in tax controversy around the world.

With tax audit and dispute activity rising in almost every country, keeping up with trends and developments is more important than ever. In this edition, you’ll find briefings on key news, events and thought leadership submitted by Global Tax Dispute Resolution & Controversy professionals in KPMG member firms worldwide. Staying informed can be a crucial first line of defense as you manage your disputes around the globe.


Make sure to view our past issues of Global Tax Disputes Update.

In this edition:




Tax Disputes and Controversy Update – Focus on France


The French tax authorities (FTA) have progressively escalated the aggressiveness of their tax law investigation and enforcement practices over the past few years. Reassessments and penalties, electronic audit tools, broader investigations, international information-sharing and raids conducted in cooperation with police — the FTA is looking to engage every weapon in their arsenal to the fullest extent to combat tax fraud and raise much-needed revenue.


In a feature interview, Audrey-Laure Illouz advises companies doing business in France to ensure their tax positions are sufficiently supported and documented to withstand the heightened risk of an FTA challenge.


Read the article.


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Tax Disputes and Controversy Update – Focus on China


China’s fast growth has helped produce one of the world’s most difficult and challenging tax environments. The country’s tax system and regulations are changing constantly to meet the demands of its rapidly expanding economy, while its tax authorities are under mounting pressure to generate tax revenue. Businesses in China are confronting more tax investigations and audits, more assessments and more frequent application of penalties.


To explore these challenges and how foreign investors should respond, we sat down with David Ling, Partner in Charge of Tax, KPMG in Northern China and Tax Dispute Resolution and Controversy practice leader in China. As David explains, companies need to take a proactive approach to potential tax disputes and controversy and be well prepared to respond to tax audits or assessments.


Read the article.


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Canada – Continue to expect delays when filing objections


Senior officials from Canada Revenue Agency’s (CRA) Appeals Branch recently confirmed that significant backlogs continue to exist for the notice of objection workload.


By way of background, after CRA has issued an assessment, taxpayers have a right to a formal administrative review by a separate area of CRA – the Appeals Branch – by filing a notice of objection. This workload is mandatory, as the Appeals Branch must deal with the notice of objection once filed to confirm, vary or vacate the underlying assessment.


Appeals officials advised that historical intake averaged approximately 50,000 notices of objection per year. However, over the past number of years, intake has almost doubled, reaching over 100,000 notices of objection in some years.


The Appeals Branch is taking measures to accelerate its review of the notices of objection in its inventory, for example, by streaming similar work to specific offices and allocating specialty work to certain regions. Taxpayers are encouraged to make substantive submissions in writing and not seek face-to-face meetings, which are viewed as inefficient.


Further information:

Paul Lynch


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Indonesia – Audit procedures for tax groups


Indonesia’s Director General of Taxes issued circulars regarding group tax audit procedures, taxpayer’s rights and obligations and the procedures that apply for 'routine audits' (compliance audits) and 'special audits' (risk-based audits). The group tax audit procedures are established to coordinate audits for companies within a registered group.


A tax audit procedure on group transactions can be expected if a correction on an inter-company transaction (i.e. made for one company of the group) also must be corrected for the other party to the transaction. Otherwise, double income tax or double value added tax (VAT) could arise.


Read the report (PDF 404 KB).


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OECD – Notes and observations on transfer pricing consultation


KPMG member firm professionals took part in the Organisation for Economic Co-operation and Development’s (OECD) two-day public consultation on transfer pricing topics in November 2013. The first day of discussions focused on country-by-country reporting, transfer pricing documentation, and the revised draft on intangibles. The second day’s discussions continued with the focus on intangibles.


Read the report.


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Oman – Tax audit activity rises


In the last quarter of 2013, the Omani Tax Department has started aggressively pursuing assessments of tax returns that will be time-barred in 2013 (i.e. tax returns filed in the 2008 taxation year).


As a result, taxpayers are advised to keep a close watch on communications from the Tax Department. Failure to respond to any of its questions and requests for clarification could cause the Tax Department to complete the assessments with arbitrary adjustments. It is also important to engage in discussions with the appropriate tax authorities to attempt to resolve areas of concern and avoid disputes.


Further information:

Ashok Hariharan


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Russia – New tax audit rules and procedures


Recently enacted legislation in Russia includes new rules for tax audits and tax compliance, which are effective 24 August 2013. Among other changes, the new legislation:


  • repeals the requirement for taxpayers to disclose participation in certain entities (such as business partnerships and limited liability companies)
  • introduces electronic format requirements for tax declarations (calculations)
  • requires tax calculations to be rounded off and calculated in amounts of whole rubles
  • introduces rules for entity registration as the “responsible member” of a consolidated group and for registration of and issuance of work permits to foreign workers.

Read the report (PDF 100 KB).


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Slovenia – Tax inspectors target VAT non-compliance


Reports from Slovenia indicate that tax inspectors recently visited some 2,000 taxpayers, over a two-day period, to conduct a 'stress test' aimed at uncovering possible evasion of value added tax (VAT) requirements. Tax professionals in Slovenia anticipate that the number of such tax inspections could increase because customs officers have been tasked to join in the examination of taxpayers’ VAT-control procedures.


The potential civil penalties for non-compliance with VAT rules may range between 2,000 and 125,000 euros (EUR). Taxpayers can participate in a 'preliminary tax review' of all documents and tax reports (e.g. VAT return, Intrastat reports, EC sales list) for a selected month, with payment of a fee of EUR 500. Errors found during this review can be self-corrected without penalty.


Further information:

Nada Drobnic


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Sweden – Court denies tax agency’s appeal on deductibility of interest on intercompany loans


Sweden’s Supreme Administrative Court denied the Swedish tax agency’s request for leave to appeal an issue concerning interest deductions in five tax cases. At issue was whether market rates of interest on intercompany loans were in accordance with the arm’s length principal.


Tax professionals with KPMG in Sweden point out that, in light of the court’s finding, the Swedish tax agency may now possibly take a more reasonable position in determining market interest rates on intercompany loans as being in compliance with the arm’s length principle.


Read the article.


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United Arab Emirates – Banks to undergo increased tax audit scrutiny


In the absence of a tax authority, the financial audit department UAE’s Ministry of Finance (the Ministry) undertakes assessments of banks in the Emirate of Dubai. Because representatives of the financial audit department act as tax inspectors, in some cases, assessments have been based an ambiguous interpretation of a tax decree. More recently, the authorities have adopted somewhat arbitrary measures in carrying out inspections, resulting in increased tax collections from foreign banks.


In other Emirates, such as Sharjah and Abu Dhabi, these assessments have been outsourced to accounting firms, increasing the need for professional support in preparing tax computations and in conducting discussions with the authorities at the time of assessments.


Further information:

Ashok Hariharan


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United Kingdom – HRMC identifies biggest areas of tax compliance risk


HM Revenue and Customs presented an update on its compliance strategy for large businesses at its November 2013 Stakeholder Conference on Compliance. Through this strategy, HMRC’s claims to have identified 18 billion pounds (GPB) of tax revenues at risk in the following areas:


  • legal interpretation
  • supply chain issues
  • repayment claims
  • tax planning
  • transfer pricing
  • double taxation relief
  • thin capitalization.

HMRC also has been involved in 1,200 disputes, with a combined GPB 10.5 of tax revenues at issue.


Further information:

Paul Harrison


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United Kingdom – Alternative Dispute Resolution becomes business as usual


HM Revenue and Customs (HMRC) has announced that Alternative Dispute Resolution (ADR) has become part of normal HMRC procedures for resolving tax disputes and has published an evaluation report following a two-year pilot.


The large and complex disputes ADR pilot, which ended in March 2013, tested the effectiveness of using mediation to resolve large or complex tax disputes in a manner consistent with HMRC’s Litigation and Settlement Strategy (LSS). A similar pilot looked at using ADR for disputes involving individuals and small businesses.


HMRC had originally expected to use external mediators, unconnected with both parties, for all cases within the pilot. However, HMRC used officers trained as mediators (who had had no previous involvement with the case), sometimes working together with mediators from taxpayer representatives (including KPMG), to 'facilitate structured discussions'. Ultimately, 26 cases were resolved in this way while only two used external mediators.


Read the article (PDF 131 KB).


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United States – Court denies IRS bid to force release of certain documents


In United States v. Veolia Environment North America Operations, Inc., a US district court found that a corporation properly withheld as work products documents sought by the IRS as part of its audit of the corporation's holding company conversion and 4.5 billion US dollars (USD) worthless stock deduction. However, the court ordered the production of other documents and urged the parties to resolve disputes over remaining documents.


Regarding the documents that were ultimately protected, the court held that the taxpayer met a condition for asserting work product production because the taxpayer had subjectively and reasonably anticipated litigation. Reasons for this finding include that the taxpayer hired outside counsel to analyze the tax implications of the transaction, sought valuation reports, and applied for a private letter ruling from the IRS interpreting a relevant tax code provision.


For certain other documents, however, the court found in the IRS’s favor and required the taxpayer to produce them. The court agreed that certain documents were required to disclose communications regarding facts, data and assumptions that were used by the taxpayer’s valuation firms in forming expert opinions. Regarding other documents, the taxpayer could not assert attorney-client and tax-practitioner privileges because the taxpayer could not show these materials relate to and were necessary to obtain legal advice.


Regarding the remaining documents, the court ordered the IRS and the taxpayer to meet and confer on whether a specific ruling on the necessity of production was required.


Further information:

Sharon Katz-Pearlman


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United States – IRS to examine US taxpayers with undeclared Indian bank accounts


The IRS Small Business/Self-Employed Division's special enforcement program (SEP) will soon begin examining U.S. taxpayers suspected of holding undeclared accounts in Indian banks. According to an IRS official, after receiving account information from Indian banks, the IRS has about 100 Indian bank account cases that it is sending out for examination across the country.


The crackdown comes just as SEP’s examination of accounts held with Swiss bank UBS is winding down. Within California, SEP has about 100 open UBS exam cases that will be sent to the IRS Appeals Office or the collection division.


Looking ahead, the official said offshore bank investigations are going to grow. In addition to India, for example, Israel is on the list of banks providing information to the United States.


The SEP team continues to examine 'quiet disclosures' made through amended returns and cases regarding taxpayers who opted out of the IRS offshore voluntary disclosure program. Given the disclosure opportunities these taxpayers have already forgone on initial filing and subsequent voluntary disclosure, IRS agents are being told to be aggressive in these cases.


Further information:

Sharon Katz-Pearlman


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United States – FATCA agreements signed with Cayman Islands and Costa Rica


The United States has signed intergovernmental agreements to implement the Foreign Account Tax Compliance Act (FATCA) with the Cayman Islands and Costa Rica—the first FATCA pacts in the Caribbean and Central America. According to a US Treasury official, these agreements mark a milestone in the effort to promote global tax transparency and underscore growing international cooperation in the effort to end tax evasion.


Enacted in 2010, FATCA seeks to obtain information on accounts held by US taxpayers in other countries. It requires US financial institutions to withhold a portion of payments made to foreign financial institutions that do not agree to identify and report information on U.S. account holders.


Further information:

Sharon Katz-Pearlman


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United States – New IDR Process Provides Flexibility Upfront, Official Says


At a recent conference of the American Institute of Certified Public Accountants, an IRS official said that recent US directives on new procedures for the issuance and enforcement of information document requests (IDRs) collectively seek to bring discipline back into the process, the official added that with increased transparency and good communication, the process need not be contentious.


In November 2013, the IRS Large Business and International Division released strict new mandatory procedures for enforcing IDRs and issuing summonses, allowing examiners almost no discretion, even at the manager level. The procedures take effect on 2 January 2014.


In response to concerns about a lack of flexibility in the new process, the official noted that that there is a lot of flexibility upfront. The official said the point of the new approach is to ensure that taxpayers and exam teams have thorough discussions at the beginning of the process. If discussions are not going well after the IRS team presents a draft IDR, the taxpayer should elevate its concerns to the team manager.


Further information:

Sharon Katz-Pearlman


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United States – GAO examines streamlined audit process for corporate tax returns


The US Government Accountability Office (GAO) publicly released a report addressing whether the IRS's streamlined corporate audit process is meeting its goals. The report sets out several recommendations for improving the process. These include setting measures and targets for determining whether the programs goals are met, tracking resolution of tax issues and resource savings, and developing a plan to expand the compliance maintenance phase of the program for compliant and cooperative taxpayers.


Read the article.


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Vietnam – Tax authority imposes profit adjustments in transfer pricing audits


Taxpayers doing business in Vietnam face significant transfer pricing adjustments as the General Department of Taxation (GDT) imposes tough new enforcement measures.


While taxpayers generally engage with the local tax officials during tax audits, where transfer prices are concerned, GDT officials direct the final decision on any adjustments. Currently, GDT officials appear to be calculating pre-audit adjustments and imposing net profit ratio adjustments on each taxpayer without regard to the technical rules. As a result, taxpayers in the current round of audits are experiencing extraordinary adjustments.


In these cases, taxpayers have several options:


  • Agree with the adjustment and pay, which offers a safe harbor
  • Disagree with the adjustment and do nothing, which is ill-advised as it will cause the GDT to shut down the business
  • Disagree with the adjustment but pay and appeal, which offers the best legal option but may not be ideal for the taxpayers’ cash position
  • Disagree with the adjustment but do not pay and appeal, which is the most practical option for most taxpayers but creates problems in applying for value added tax (VAT) refunds.

Given the magnitude of current profit adjustments, KPMG in Vietnam recommends that with related parties transactions immediately ensure they are complying with current transfer pricing requirements related to Form 01 disclosure and transfer pricing documentation. Compliance offers the strongest basis for defending, negotiating and/or appealing any transfer pricing adjustment imposed during a transfer pricing audit.


Further information:

Le Thi Kieu Nga

 

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