Base Erosion and Profit Sharing (BEPS) Report: Parliamentary Budget Office briefing

Meeting report

Co Chairperson’s opening remarks
Mr S Luzipho (ANC) said that this joint meeting was convened because there was a realisation that there needed to be synergy between the three Committees dealing with Finance, Trade and Industry and Mineral Resources on the issue of tax base erosion, which, although strictly a tax revenue issue, had cross-cutting implications for all three committees. The Portfolio Committee on Small Business Development had also shown an interest in matters of transfer pricing and at a later stage this Committee would also be invited to deliberations. The Standing Committee on Finance was best suited to drive the conversations. However this meeting was only the first step and not all issues would be finalised today.

Chairperson Mr Y Carrim (ANC) said that the aim for today's meeting was to get a briefing and the Chairpersons and whips would meet at another time to gather a way forward.  The meeting was not a public hearing. The public hearings held by the Portfolio Committee on Trade and Industry had been finalised and copies of the various submissions made would be available to Members in the next seven working days.

Co-Chairperson Ms J Fubbs (ANC) agreed and added that this meeting was convened to avoid a silo approach by committees around transfer pricing. The Chairperson of the Standing Committee on Finance was asked to coordinate the Committees and lead the discussions. The concerns of the Portfolio Committee on Trade and Industry were mainly around the Industrial Policy Action Plan, negative implications on this, and the higher value addition. She added that the legislation and policies around Broad Based Black Economic Empowerment (BBBEE) needed to be aligned as to move forward the debate on radical transformation of ownership. Transfer pricing had a negative impact on companies within South Africa. The Portfolio Committee on Labour should also have been included, but would be invited to future deliberations.

Mr Carrim indicated that the Economic Freedom Fighters (EFF) had submitted a report which had very good ideas around transfer pricing. Nine of the recommendations from the report would be included in the process. The Democratic Alliance (DA) has raised its concerns on the report. These committees had to be mindful of the consequences and implications on the mining sector and on business.

Base Erosion and Profit Sharing (BEPS) Report: Parliamentary Budget Office briefing
Mr Mohamed Jahed, Director, Parliamentary Budget Office explained that this Office (PBO) provided  technical support to the Finance and Appropriation Committees, as well as to other Committees within Parliament, especially around economic and fiscal issues. He said that in order to achieve the objectives of the National Development Plan (NDP), it was necessary that fiscal resources be deployed efficiently. The implementation of the NDP therefore needed to be financed. Tax revenue played an important revenue for financing government programmes, being one of the key components of how government paid for its programmes, and if the tax system was being abused through mechanisms such as base erosion or profit shifting and transfer mis-pricing, these had a negative impact on how the government financed its development programmes. He indicated that the research from the PBO was based on both primary and secondary research, local and international research. Internationally, base erosion and profit shifting were critical issues of concern, and for the public and private sectors, Government had mechanisms to address these in place.

Dr Dumisani Jantjies, Finance Analyst, PBO, gave an outline of the presentation. He reiterated that the PBO advised and provided analysis to the Finance and Appropriations Committees in both Houses of Parliament. The PBO was established in terms of the Money Bills Amendment Procedure and Related Matters Act of 2009. He explained that the key objectives of the paper were to look at:

•South Africa’s approach in dealing with BEPS

•The impact of BEPS on South Africa’s economy

•BEPS and the mining and extractive industry

•Advance Pricing Agreement (APA) and BEPS combating strategy

•The extent of BEPS in various industries in the country

•Consideration for oversight and legislative process

He summarised that the rationale for taxation was that government should be able to provide goods and services to citizens and other users as prescribed by the Constitution, to address amongst other things, inequality, poverty and unemployment. Imposed direct and indirect taxes to residents and non-citizens were a source of revenue for the country. South African residents were taxed on their worldwide generated taxable income, while non–residents were taxed on their source of income. In the South African context, taxes would be levied directly or indirectly on individuals, corporate and various transactions. Individual taxes contributed 33% to the South African economy, while Value Added Tax (VAT) contributed 26%, and corporate tax contributed 22% to the country’s economy.

He explained that the problem with Corporate Taxation (CIT) was that multi-national enterprises (MNEs) unfairly reduced South Africa’s tax revenue in two ways, either by inflating deductible costs of productions such as advertising fees, management fees and interests on foreign loans, or by deflating gross income through under-selling or delaying transaction dates. Inflating expenses and or under-selling goods, commonly known as transfer-mispricing, was mainly done to connected persons, but evidence suggested that transfer mispricing was also done through third-parties. Therefore corporates in the same group traded with each other on either international (more popular) and national levels. Transfer pricing was the price at which entities within a multinational enterprise transacted with each other for transfer of goods and services. Setting transfer prices was important, according to UNCTAD; for over 60% of world trade is within or involves MNEs. However, transfer mispricing occurred when entities distorted transfer prices and ultimately distorted their profits, thereby eroding the tax base and depriving countries of their correct share taxes. Transfer pricing, unlike transfer mispricing was an essential feature of cross-border activities of MNEs.

Dr Jantjies explained that South Africa’s approach to BEPS adopted an arms-length approach, which was considered to be the fair representation of the value at which a mining company sold its commodity to a mining company connected to it, in another country. Therefore, in principle, the price was quoted in markets. However, aspects such as market fluctuation, variances in delivery time and transaction times, marketing expenses and other matters needed to be taken into consideration when determining arms length. The legislative reference South Africa was using in this approach was Section 31 of the Income Tax Act. In dealing with BEPS, South Africa was committed to deriving practice notes as compliance guidance to tax payers. It would be establishing a Transfer Pricing Unit within the South African Revenue Services (SARS), focusing on auditing of suspected transactions and / or entities, and signing tax treaties or / and international agreements with other countries. In recent years, South Africa had managed to recover around R5.8 billion in taxes “lost” as a result of transfer mispricing. However there had been some noted loopholes in South Africa’s arms-length approach to BEPS, such as weaknesses in the country’s legislation, voluntary versus mandatory disclosure of information by tax payers, and lack of capacity within SARS, among others. There was currently no conclusive evidence to substantiate and provide sources to accurately quantify the revenue loss in the South African context. Evidence existed to indicate that revenue losses as a result of BEPS often took into account both legal and illegal practices. Legal flows were the focus of discussion, and these included transfer mispricing, tax abuse and regulatory abuse.

He explained that the main impact of BEPS was loss of income.  On average, US$12 billion  were lost per year, according to the 2015 African Union Report/ Global Financial Integrity, and these figures included both illegal and legal flows, although there was no absolute clarity on the proportions. In the case of South Africa, loss recovered was spread across various industries with high prevalence in the mining and extractive industry, where over R3.5 billion had been recovered from seven cases audited by SARS.

 Government had opted to sacrifice some of its revenue to provide various incentives to business, these included incentives for research and development, incentives for capital expenditure, incentives for enhanced competitive advantage and incentives for specific industries. However this practice had been considered by others as a double loss, for some of the companies being incentivised could be taking part in transfer mispricing themselves. With regard to the international experience on transfer mispricing, he reiterated that transfer mispricing was a phenomenon experienced by both developed and developing countries throughout the world; South Africa’s approach to BEPS was considered to be among the best internationally. Other countries were aligned to OECD, and made use of Advanced Pricing Agreement (APA) to deter tax payers prom practices of BEPS. However South Africa currently did not have APA as a deterrent to BEPS. He amplified that an APA was an agreement between tax payers and the tax authority on the transfer pricing methodology.

Some of the benefits of APA were:

•Certainty with respect to tax outcome of the tax payer’s international transactions

•Removal of an audit threat (minimizing rigors of audit), and deliverance of a particular tax outcome based on the terms of the agreement

•Substantial reduction of compliance costs over the term of the APA

•An APA also reduced costs of administration and also freed scarce resources

However, despite these advantages, Dr Jantjies said that the APA approach was not "a silver bullet". There were some potential weaknesses for APA in the South African context, such as an added burden on already incapacitated agencies such as SARS. He indicated that the mining and extractive industry experienced high volumes in transactions involving BEPS in South Africa. In addition the decline within this industry was also an added concern, together with the lack of coordinated policy and/or legislation affecting the industry, lack of predictability within the sector and decreasing commodities. The PBO surveyed the shareholding of the Johannesburg Stock Exchange (JSE), and listed mining houses, and about 79% of the mining houses were locally controlled, 13% were foreign controlled and 4% were fully foreign controlled. Almost all of the JSE listed mining houses had a proportion of both local and foreign interests. The fact that the majority of the JSE listed mining houses were locally controlled was the root cause of BEPS, but JSE-listed mining houses were subsidiaries to MNEs through local control. There was therefore a need to review the current Royalty Bill also as a reflection on the current transfer pricing practices. Arms length, as it currently stood, was not practically effective and there was a need for other methods either to replace it or supplement it.

He noted that to move forward, some of the considerations for oversight and legislative process included implementing legislation to deal with ambiguities, coordinating various institutions such as SARS, Financial Intelligence Control Act (FICA) and the South African Revenue Bank (SARB), disclosure of information requirements, the question of voluntary and mandatory disclosures, signing tax treaties, capacity building at SARS, and collaborating with other African countries.

Discussion
Ms Fubbs asked, what was meant by practice notes, and what this would mean for business.

Dr Jantjies said practice notes were guidelines on implementation of legislation, for tax payers.

Mr A Williams (ANC) said when a mining company declared a lower profit, it used this figure in collective bargaining, lowering the wages of workers. The Wage Bill in the country was quite low, and workers needed to be paid more.

Mr M Ndlozi (EFF) said transfer pricing was unethical and was a bad business practice. The EFF's approach to transfer mispricing was not anti-business. He asked why the presentation by the PBO did not consider the Latin American experiences, stressing that the framework of South Africa needed to be compared with countries with similar experiences such as Bolivia and Brazil, which made use of the sixth Method. OECD countries had five methods for dealing with transfer pricing. He disputed some of the figures, saying that he was sure that the internationally-owned figures were higher. He argued that mining companies needed to be forced to give information by law; and if the company was a subsidiary it needed to provide information on the mother company. This was what Brazil and other countries were doing, more successfully than other OECD countries, with the approach of taxing companies on the price sold to the manufacturer. He said the amount of money South Africa was losing to these illicit practices was enough to take care of the country’s tax needs for the next couple of years. In the immediate term, however, the question of government owning mining companies needed to become even more important and the EFF firmly believed that South Africa needed a mining company for its own beneficiation needs, and that some of the existing companies needed to be taken without compensation. He argued that there needed to be a collective approach to save the country, because companies who took part in transfer pricing did not care about South Africa’s development agenda and its people.

Mr D Ross (DA) said the report produced by the EFF on transfer pricing was very useful and it provided valuable insight. However, its recommendation that banks should be nationalised was not an option the Democratic Alliance was willing to support. The ideology was flawed. The mining industry was a very complex one, and such a recommendation would result in the instant death of the sector. He said further investigations by the PBO were necessary, because the impact of transfer mispricing on the country’s revenue could not be ignored. However, the work done by SARS thus far was highly commendable. He asked whether, during other engagements, the JSE should not be invited as well. He said APA seemed to be a better solution because it did not harm business.

Mr D van Rooyen (ANC) welcomed the work done by the PBO. As a way forward, he said that input from other stakeholders should be sourced and the information collated, to determine whether further engagements were necessary. He suggested that the three Committees should put together all information that they had and compile a single report for Members to determine whether outside stakeholders needed to be invited for further engagements. In addition, the Chairperson needed to consider organising a workshop for Members around the concept of transfer mispricing. He believed that the submission by the EFF was contradictory and confusing.

Ms T Tobias (ANC) said it was easy for a political party that was not the governing party to come up with ideologies which did not provide lasting solutions, because that party was not burdened with the responsibilities of governance. Consultation during the policy process was very important, and policies also needed to be put to the test and given an opportunity to function. The African National Congress government would therefore always consider all views and implement what worked. The matter of transfer pricing was a very complex matter and there was not an immediate solution. The kind of colonisation that South Africa experienced did not allow the country to have a free market where people had enough skills to compete, have jobs and prosper without any hindrance. During colonisation the majority of South Africans were subjected to poverty and low skills, and the present government has a responsibility to come up with lasting solutions to address these challenges. There would always be unintended consequences to transformation, because of the competing demands, which the government needed to satisfy at all times. Government was not only playing a regulatory role, and at some point government needed to intervene.

She made the point that there was also no guarantee that the sixth method would work in South Africa. Charging companies on the commodities they produced meant that these transactions needed to be tracked and monitored; and she asked if South Africa did have the capacity to do this? She also wanted to hear examples of other countries that had been able to implement this model successfully, and whether it made business sense. She said sometimes a method which would result in further loss needed to be left alone. Government was working on the assumption that when businesses transacted they were honest and they followed the law, but it must be recognised that sometimes they did not. The suggestion from the PBO that the country’s legislative framework needed to be re-examined was a great idea, so that the possibility of digital migration could be considered, to track every single transaction. The issue of morality could not be argued against. She noted that transfer mispricing was a serious challenge and the government was pro-poor. The Committees therefore needed to re-engage with the inclusion of the sector itself, and inviting JSE companies was a possible way forward, because other views needed to be considered. Businesses needed to be lobbied and not oppressed, because they also did not benefit from poverty.

Ms S Sithole (ANC) said the document from the PBO was very helpful. She said the Department of Labour should be working very closely with the Department of Mineral Resources and the Department of Energy. She asked that the PBO conduct research on salaries and retrenchments within mining and how they contributed to the poverty in the country.

Mr B Mkongi (ANC) thanked the PBO for the presentation. He agreed that the process needed to continue, and all relevant stakeholders needed to be invited to enhance the debate, especially to assist Parliament in looking at and dealing with the legislative loopholes. 

Mr D MacPherson (DA) said the average worker in the mining sector earned a better wage than a worker in the manufacturing sector, for example. The mining sector therefore needed to be protected but this could not be done in a hostile environment, and he asserted that nationalisation without compensation would not work. Tax avoidance was not good for the economy, but such discussions should not be hijacked by political parties who wanted to grandstand while the media was present. This did not help the discourse of the conversation. Presentations from the PBO were the most informative and should be used by all the relevant Committees moving forward.

Mr Carrim said the PBO was primarily allocated to the Finance and Appropriation Committees.

Mr Ndlozi reiterated his view that it would be very useful to look into the Latin American experience when dealing with transfer mispricing. He said the approach of nationalisation was not to scare business away, and it was also not about taking politicians to run companies, but rather the idea was that profits made by these mining companies needed to be kept within the country. Nationalisation was about strategically developing the country and Members should not be scared of the concept - it was not about socialism or capitalism or marxism.

Mr Carrim asked what the parameters were within which the framework would be implemented, to deal with the issues outlined.

Mr Ross asked whether the discussions should not be around changing the current Tax Administration Act.

Mr Luzipho said any ideology which did not adapt to the material conditions of a country at the present time was doomed to die. He asked what should constitute the crux of the work needing to be done; this had not been made clear and he thought that it needed more discussion. He asked what process would now be followed. He agreed that there needed to be further consultation with other stakeholders to debate what needed to be done, but did not agree that entities of government needed to be privatised. He said the three Chairpersons would work closely with the PBO as the committees moved forward. The three Committees would consider whether there was a need for new legislation and whether the three Committees needed to synchronise their work with other committees also, such as the Portfolio Committee on Economic Development. Members would need to exercise some patience with the process, for co-ordinating four committees would not be easy.

Ms Fubbs asked whether smaller exchanges had been taken into consideration. She said the value of the JSE was greater, but that Broad Based Black Economic Empowerment ownership was stated as less than 26% and this was not correct. There was a conflict of alignment between the JSE and BBBEE. She said the primary listing of a company should be considered, keeping in mind where its domicile was. South African-owned producers and mining companies should be listed and domiciled in the country, and this needed to be seriously considered. The secondary listings of these companies could then be outside the country. With regard to expenditure, she said the global terms of consultancy services resulted in a huge amount of money flowing out of the country legitimately, but wanted to know how this money could be kept within the country? With regard to the Global Finance Integrity Report, she said South Africa alone, in 2012, lost nearly 20 billion dollars, and this amount had most certainly increased over the years.

Mr Carrim reminded Members that the aim of the meeting was not to come to any conclusions, but rather to start a conversation.

Mr Jahed said the PBO had looked at the Latin American experience, and the methods used by Brazil had been considered.

Dr Jantjies welcomed the comments made by Members and indicated that a report would be compiled and made available to Members.

Mr Ismail Momoniat, Deputy Director-General: Tax and Financial Sector Policy, National Treasury, welcomed the collaborative approach by the three Committees. However the problems faced regarding transfer mispricing were not restricted to one particular sector. In addition, companies involved in these illicit transactions had teams of lawyers who made it a point to find loopholes in the legislation of various countries. There was therefore no one country which could solve the problem, because it was a very complex matter. The issue of domicile was not a simple one, because South Africans did not save and so the country was dependent on foreign flows of capital for revenue.

Mr Kosie Louw, Chief Officer, South African Revenue Services, said base erosion and profit shifting was a problem. However, as stated in the presentation, SARS had been able to recover around R5 billion in taxes over the last couple of years, and this was a great success. However the rules needed to be re-examined, especially for dealing with the issue of double taxation. The country needed to try and find a balanced approach. Taxation needed to be aligned with the economic value being created. The engagements with the Joint Committees today had been of great value. He said the outcomes and the recommendations from the Davis Tax Committee would be looked at as well, to see whether these findings provided any solutions. He said tax systems needed to be strengthened because the transactions under discussion were very complex.

Mr Ndlozi asked whether it was true that SARS had a team of only 16 people in its transfer pricing unit, as compared to over 200 in the United Kingdom.

A Group Executive for SARS responded and said this was not true. SARS had a team of 20 people in its transfer pricing unit, and it was working on appointing more, to increase the number by another 12 in the next month. The United Kingdom office had 65 staff, but they were working on an annual return of £1 billion pounds. Speaking to the sixth method favoured by the EFF, she noted that SARS was exploring this method. However, it must be noted that Brazil had a unique environment because it had been able to  bring legislation, administration and technology together, so that this country had full access to the registers of large companies. This method was also under currently under discussion even at the OECD.

Mr van Rooyen said the issue of capacity within state institutions would be looked at during the Committee's further engagements.

Mr Stephen Hanival, Chief Economist, Department of Trade and Industry, said the imperative of the work, from a trade and industry perspective, was around the opportunities for beneficiation and the role this played in developing South Africa and catalysing growth. It was therefore not possible for developmental pricing to be implemented in South Africa. If transfer pricing indeed was taking place in the country, then a 10% discount from the international price would allow for local beneficiation, especially in rural areas where unemployment was high. However, he agreed that these challenges were not unique to South Africa. It was also important that investor confidence should not be reduced and so the carrot and stick approach should be implemented where necessary. He added that he saw a need for an inter-Committee approach to addressing transfer mispricing, and a stronger degree of alignment and cooperation between entities was needed. He clarified that the Department of Trade and Industry was not suggesting that there would be additional burdens placed on investors in South Africa, because investors needed to pay the tax for which they were liable. Investor confidence was particularly fragile at the moment and he urged that this should not be undermined.

Mr Carrim said transfer pricing was not a new concept, as indicated by the paper produced by the EFF. Government was not looking for an anti-business approach, but it was rather looking for a more inclusive and effective approach in dealing with the illicit flows of funds outside of the country’s revenue. The Portfolio Committee on Trade and Industry had already held public hearings on the matter. If there was d consensus that a new set of public hearings should be held, there needed to be a clear framework. He agreed that more Portfolio Committees needed to be invited, such as the Portfolio Committee on Small Business Development, the Portfolio Committee on Labour and the Portfolio Committee on Economic Development. There also needed to be clear differentiation between tax pricing, tax mispricing and BEPS, and he asked that the PBO should clarify these concepts and bring the information to the upcoming workshop.

Mr Carrim commented that in relation to the sixth method and the Latin American experience, more clarity was needed, and the extent to which it would be applicable to the South African context. He said that engagement with the JSE did not need to be done in the form of a public hearing, but the JSE could be invited to a meeting. He said there was general consensus that current legislation needed to be tightened. Because the EFF had put forward a formal paper, other political parties were also invited to make their own submissions, but they were asked to do so within the next three weeks. The PBO needed to collate all the information and put together a report for this joint Committee by 26 May 2015, after which the Chairpersons would meet again, within seven days of that date, to discuss a way forward.

The meeting was adjourned.