Dispute Resolution Process

Abstract: This article deals with issues such as the procedural overview of a matter from assessment to appeal and includes issues such as the burden of proof in tax litigation matters.

Work In Progress

Reverse Charges

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The underlying principle which governs the reverse charge mechanism is that it seeks to shift the liability to account for the VAT on specified imported services from the supplier to the customer. The general purpose is to reduce the administrative burden for the supplier to register for VAT in a jurisdiction in which it has not established business.

In countries where the Reverse Charge Mechanism exists, the purchaser will be required to account for the VAT on the value of the supplies made to him. The purchaser will treat the imported supply as a supply made to himself and therefore will account for the output VAT. Since the supply is also a supply made to him, he is allowed to treat the same VAT as input tax and will deduct it in arriving at his VAT liability/refundable for that period.

The Reverse Charge Mechanism generally applies to imported services within many of the Caribbean countries.

Below is a summary of the countries where the Reverse Charge Mechanism is applicable:-

  Country Reverse Charge Mechanism for VAT/Sales Tax on imported services RCM apply on what type of supplies?
1

Antigua and Barbuda

Yes

Services supplied by a non resident person to a taxable person in AB, other than through a resident agent and the supply is not a taxable supply but would have been a taxable if it was made by a VAT registered resident and the supply is not zero rated. The supply should be used to make exempt supplies for private or domestic use, or a use that would be private or domestic if the recipient were an individual, or to provide entertainment, to-

(i) an associate or employee, or

(ii) any other person other than in the course of

a taxable activity of providing entertainment.

2 Barbados No
3 Belize No
4 Dominica Yes Import of services other than an exempt import into Dominica
5 Grenada No
6 Guyana Yes Import of services other than an exempt import into Guyana
7 Jamaica Yes  Import of services into Jamaica
8 Montserrat* No – to be confirmed
9 St Lucia Yes Import of services other than an exempt import into SLU
10 St Kitts and Nevis Yes Import of services other than an exempt import into SKN
11 St Vincent and the Grenadines Yes Services supplied by a non resident person to a taxable person in SVG, other than through a resident agent and the supply is not a taxable supply but would have been a taxable if it was made by a VAT registered resident and the supply is not zero rated. The supply should be used to make exempt supplies for private or domestic use, or a use that would be private or domestic if the recipient were an individual, or to provide entertainment, to-

(i) an associate or employee, or

(ii) any other person other than in the course of a taxable activity of providing entertainment.

12 Trinidad and Tobago No
* Montserrat does not have a Value Added Tax System in place

Management Charges


DEFINITION


In general/lay terms, a management charge/fee is a payment made by a company in one jurisdiction to a company in another jurisdiction for the provision of certain management services provided to it by the other.


THE MULTI-NATIONAL BUSINESS CONTEXT


In the specific context of developing countries, it is not uncommon for a local subsidiary of a multi-national company, for example, to pay its parent (often located in a developed country) for the provision of certain centralized services and expertise in order to facilitate its operations in the local Caribbean territory (e.g. accounting, treasury services and information technology).

In this manner, many multinational companies operate like a singular global entity with a core strategic vision and centralized nervous system, but with subsidiaries/branches that have delegated operational oversight in the specific regions it carries on business. Simply put, it is more efficient to operate in this manner than for the multinational to replicate the Head Office’s core functions in each territory it carries on business.

Naturally, each branch/subsidiary will pay its head office/parent for the provision of these “management” or “shared services” instead of attempting to obtain these services  within the local territory  (some of which may not be cost effectively available in the local territory in any event).

Shared Office Costs

From the perspective of the local Caribbean tax authorities, however, such payments represent flows of currency outside of the country. Further, in the absence of transfer pricing legislation, unregulated payments in respect of “management charges” to a non-resident head office/parent may appear to provide an opportunity for multinationals to improperly strip profits from its Caribbean branch/subsidiary and thereby erode the local tax base.

In order to deal with these potential currency and tax leakages, many Caricom countries:

(a)    Levy withholding tax on such payments made to non-residents; and

(b)    Limit the ability of the local branch/subsidiary to deduct payments made in respect of management charges paid to non-residents in computing their taxable income.


COUNTRY SPECIFIC INFORMATION


Table: Country Overview

 

Country Defined in Statute∇ Restriction on Deductibility Withholding Tax
Antigua No No

20%

25% (Companies)

Barbados No No 15%
Belize Yes No 25%
Dominica Yes 5% 15%
Grenada Yes 1% – 5% 15%
Guyana YesΩ 1% 20%
Jamaica No No 33.3%
Montserrat No 5% 20%
St. Kitts Yes 5% 15%
St. Lucia Yes 10% 25%
St. Vincent Yes 5% 20%
Suriname 0%
Trinidad & Tobago Yes 2% 15%

∇ In the absence of a specific statutory definition, regional practitioners must have regard to definitions adopted in the local courts, as is consistent with the Caribbean’s common law tradition.

Ω The statutory definition for the purposes of the “restriction” may differ from the definition for the purposes of “withholding tax”.

‡ To be updated.

 


THE IMPORTANCE OF CARIBBEAN TAX PLANNING


From the perspective of the multinational, the combination of withholding tax on payments made to the head office/parent and the domestic restriction on the tax deductibility of expenses incurred in respect of management charges payable to non-residents makes “management charges” a major consideration when determining the viability of doing business within a Caribbean territory.

Indeed, one may posit the view that in the context of a branch/head office arrangement a combination of a domestic restriction of management fee deductibility and a withholding tax on a payment in respect of said fees to its head office is a punitive form of double taxation in the region.

Specifically:

(i)                  the local branch operation is paying more tax than its local counterpart on the basis that it cannot deduct what would otherwise be treated as a legitimate business expense for corporation tax purposes; and

(ii)                the branch’s non-resident head office (which, in law, is the same legal entity as the branch) is also incurring the withholding tax burden on the gross payment.

Key questions

 

In light of these issues, amongst a host of others, it is particularly important for multinationals to obtain Caribbean tax planning advice concerning:

(i) What are the relative advantages and disadvantages of operating in the locality as a branch vs. subsidiary?

(ii) What is the definition of “management charge” in the domestic tax law of the applicable Caribbean territory?Ω

(iii) What is the definition of “management charge” in the applicable Double Taxation Treaty governing the relationship between the head office/parent company and its branch/subsidiary? Does the “Management Fee” article apply on the facts?

(iv) How are chargeable profits of “permanent establishments” determined pursuant to the applicable Double Tax Treaty?

(v) What is a “payment” and where does it “arise” for the purposes of the domestic tax law of the applicable Caribbean territory?

(vi) What are the implications of the “Associated Enterprises”, “Limitation on Benefits” and “Non-Discrimination” Articles in the applicable Double Tax Treaty?


CASE LAW (Downloadable Content for Members Only)


Against the background of these issues, the following cases are particularly noteworthy:

 

•  Board of Inland Revenue v Young (Selwyn), (1997) 53 W.I.R. 335

•  William H Scott v The Board of Inland Revenue, No. I 80 of 1983

•  Shell Trinidad Limited v The Board of Inland Revenue, Appeal No. 1 of 2011

•  Esso Standard Oil S.A. Limited v The Board of Inland Revenue, Nos. I 114 – 125 of 1982

•  Commissioner of Inland Revenue v Hong Seng Bank Limited, Privy Council Appeal No. 36 of 1989

•  The Appeal Commissioners v The Bank of Nova Scotia, Privy Council Appeal No. 65 of 2012


CAVEAT


This blog is published by the site administrators of www.caribbean-tax.com on June 25th, 2016 for discussion purposes only. Should you require legal advice, please contact us and we shall be happy to make a referral to a local tax practitioner.


DISCUSSION FORUM


We would like to hear from you! What do you think? Please leave your comments in the box below.

Branch or Subsidiary?

Branch or Subsidiary?

A question frequently asked by multinational companies seeking to do business in the Caribbean is whether they should operate through a “branch” or, alternatively, whether they should operate via a locally incorporated “subsidiary company”.

Regrettably, and all too often, the advice provided is couched in the following terms:

Both structures are largely inter-changeable, but have two main distinguishing features: an incorporated entity has the benefit of limited liability (i.e. the ability to ring fence legal liability in T&T), but “branches” have the benefit of requiring less red-tape if and when the time to wind up operations arises (a potential benefit to multi-nationals with short to medium term business interests in the territory).

In the view of the author, such conclusions are superficial at best, and inaccurate at worst. Such conclusions merely scratches at the surface of matters to be considered – advice that adds real value must analyze the proposed business adventure against the myriad of legal and regulatory matters that are relevant to the idiosyncratic circumstances of that business.

Consistent with this view, we must emphasize at the outset that this note is not intended to be a substitute for legal advice, nor is it intended to constitute an exhaustive discussion of all the possible considerations that may be relevant to this question. Instead, the author raise some of the tax considerations that should be considered.

The relevance of residence

As a starting point, it is relevant to note that a branch is likely to be treated as a “non-resident company” and a locally incorporated subsidiary is more likely than not to be treated as a “resident company” for tax purposes. This classification is the first significant distinction between the two vehicles.

World Wide Income vs. Territorial Taxation

Generally, companies that are resident in a Caribbean Country are usually chargeable to tax on their worldwide income, whereas non-resident companies are only chargeable on income directly or indirectly accruing from within that territory.

Accordingly, a branch’s tax liability is territorially ring fenced.

World Wide Loss Utilization vs. Territorial Loss Utilization

A natural corollary of the being taxable on worldwide income is that a Head Office should be entitled to take into account expenses, where so ever they occur in the world. Double tax treaties and the foreign tax credit rules focus on cross-jurisdictional tax allocation where “profits” are made. They are often silent on the issue of cross-jurisdictional “loss” allocation. As such, DTT do not deal with the computation of chargeable profits at an entity level.

A legitimate question, therefore, is to what extent can a branch structure enable a head office to reduce its taxes simultaneously at home and abroad? The author notes that inadequate consideration is often given to this very important question in the Caribbean.

In no Caribbean territory is a local parent permitted to utilize the losses of its non-resident subsidiary company in order to reduce its corporation tax liability. However, may a locally incorporated parent company utilize the losses of its non-resident branches in order to reduce its corporation tax liabilities?

Deemed Branch Profits Tax

In some jurisdictions, branches are deemed to have remitted all of their profits to their head office in the form of a dividend and is made subject to withholding tax.

Country Branch Profit Tax
Antigua
Belize
Dominica
Grenada
Guyana
Jamaica
Montserrat
St. Lucia
St. Kitts
St. Vincent
Trinidad & Tobago

Companies, however, only pay withholding tax on actual dividend payments made. The withholding tax is applicable, at most, on the sum after Corporation tax is paid (i.e. profit after tax).

Withholding tax implications

As a matter of Statutory interpretation

The following Caribbean countries have specifically legislated that for the purposes of withholding tax applicability a branch and head office must be treated as separate legal personalities:

Country Separate person
Antigua
Belize
Dominica
Grenada
Guyana
Jamaica
Montserrat
St. Lucia
St. Kitts
St. Vincent
Trinidad & Tobago

However, in the absence of specific legislation then, and in accordance with the Caribbean’s common law tradition, regard must be had to the applicable case law.

The leading case in the region is the Privy Council case of  Appeal Commissioners v Bank of Nova Scotia [2013] UKPC 40 (download here). In this appeal, their Lordships were tasked with the construction of the Grenadian Income Tax Act (s. 50(1)) to determine whether a withholding tax obligation arose in respect of a reimbursement paid by a Grenadian Branch to its Canadian Head Office.

The material provision of the GITA provided as follows:

“50(1) Where a person whether or not engaged in a business in Grenada makes payments to a non-resident person of interest… discounts, commissions, fees, management charge, rent, lease premium, license charge, royalties or other payment whether or not the payer is entitled to deduct such payment in computing chargeable income of a business, the payer shall deduct tax at the rate specified in the third schedule and pay the amount of tax so deducted to the Comptroller within seven days after the date of payment or credit to the payee.”

The Grenadian Court of Appeal, with which the Privy Council later agreed, took the view that the legislation, though not using the term “other person” as in Antiguan legislation, does nonetheless imply a duality of entities. Further, the Privy Council opined that the word “person” is clear and does not admit the inclusion of the unincorporated Head Office and that “the payer and the payee being the same person, section 50 has no application.”

Is there a “payment”?

The obligation to remit withholding tax to the applicable taxing authority is triggered when there is a payment. Consequently, expense recognition in the context of cross-border transactions operates as an exception to generally accepted accrual accounting standard – it operates on a cash basis. Specifically, the obligation to remit withholding tax is only accounted for when the transaction has been consummated in a “payment”, and the expense is only recognized for tax deductibility purposes when WHT has been accounted for. 

Interestingly, it is universally recognized that interest is taxable or expensed on a cash basis, however as a matter of practice in the Caribbean there is inconsistency in the application of payment in the context of WHT applicability.

In the T&T case of Esso case (download here).

Are inter-company transactions tax deductible?

Related to the question of whether WHT is applicable on payments between a branch and its head office is whether an inter-office (branch/head office) transaction is relevant for tax purposes. By way of context, if a transaction were to occur between a branch and its head office both domiciled within a locality, the transaction would be a nullity for tax purposes. Should it make a difference to the taxability of the transaction that territorial waters are inter-posed in between?

It is important to consider at the outset that an external company / branch on business in a territory is a “resident” of another country. In the lexicon of double tax treaties, a branch is a “permanent establishment” of a company that is a resident of the other member country to the Double Tax Treaty. A permanent establishment “means a fixed place of business through which a resident of one of the Contracting States engages in industrial or commercial activity” (US/TT Double Tax Treaty Article 9(1)). As such, one must analyze the terms of the applicable Double Tax Treaty for additional source of guidance on the tax treatment.

It is common for the “Business Profits” Article of treaties based on the OECD Model to contain the following provisions (e.g. 7(2) and (3) of the US/TT DTT):

(2)  Where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment.

(3)  In determining the profits of a permanent establishment there shall be allowed as deductions expenses which are incurred for the purposes of the permanent establishment , including an allocation of executive and general administrative expenses incurred for the purposes of the enterprise as a whole, whether in the State in which the permanent establishment is situated or elsewhere.

In other words, where there is a branch and head office relationship, the payments to the HO are tax deductible. The import of this section is that one can disregard the reality that the branch and head office are one and the same legal entity, but can treat them as separate entities for the purposes of profit allocation.

Needless to say, if inter-office payments are tax deductible, may not incur withholding tax and may not be subject to a management charge restriction, operating through a branch may be particularly beneficial to some multinationals vis-à-vis a subsidiary.

Interestingly, there is no similar clause to section 7(2) of the OECD model. Instead, the language of the Caricom Treaty is as follows at article 8(3) “

“3. In determining the profits from a business activity there shall be allowed as deductions expenses which are incurred for the purposes of that activity in accordance with the laws of the Member State in which such activity is undertaken”

In other words, whereas the OECD Model specifically addresses this issue and creates the legal fiction of independent enterprises – the Caricom Treaty does not. In light of this, can a Caricom enterprise treat an inter-company transaction as taxable if the domestic law is silent on the issue?

Conclusion

For multi-national companies seeking to do business in T&T, it may be worthwhile considering using a branch instead of a subsidiary. One basis is that on inter-office transactions there ought not to be withholding tax, whereas on transactions between Parent and Subsidiary WHT may be a consideration.

 

Common Law Tradition


The region’s laws have evolved to meet the region’s very particular needs and have created a distinctive legal landscape. Within the so-called “developed” world, the evolution of tax law lies almost exclusively in the hands of the legislative drafter. These laws are subject to relatively frequent amendments in an effort to keep them current. Within the region, however, the statutory law does not evolve as frequently. The incremental evolution of the law comes about with each decided case. Like Dr. Frankenstein crafting his wonderful new creature, each case becomes the sinew, flesh and organs that both create and give life to the legislation.


To persons outside the region, the Caribbean is often seen as one entity, a chain of homogenous islands dangling from America’s impossibly slender waist. It’s a view of the region that is obviously charming but it belies the distinctive differences amongst the individual islands, differences that become achingly apparent when non-nationals are facing the challenge of conducting business here.

Attorneys who are foreign to the region, who nonetheless have transactions to conduct within it, often find the legal systems hard to negotiate. These systems, specifically, the civil and common law, evolved from the territory’s colonization experiences and the jurisprudence of each island is a reflection of its individual history.

Amongst the English speaking islands, the common law system predominates. For attorneys who do not come from a Commonwealth background, this means that they often lose their footing as they seek to make their way along the various paths necessary to attaining their goals. In fact, working within the Caribbean often proves challenging even for attorneys who are from the Commonwealth, since the evolution of the region’s law is quite singular.

Attorneys from North America will find that having a similar common law tradition does not make things any easier. While some similarities are to be found – both the US and the Caribbean territories have written constitutions, the company law acts of several of the islands have borrowed heavily from that of Canada – the systems are significantly different.


“[T]he region’s tax laws are not static and their development is not left in the hands of the drafter who is removed from the reality of what he is being asked to create. Instead, tax legislation in the region is very much a living thing that can be said to operate almost in real time and the effective tax practitioner must constantly grow and advance to meet the region’s very particular needs.”


The common law within the region consists of both statute and judge made law. Statute is laid before the Parliament and voted upon while judge made law is based on judicial precedent. The final court of appeal is able to overrule previous decisions of the lower court if it is felt that an injustice has previously occurred and/or continues to occur. This is only in exceptional cases as judge made law places great value on the principle of certainty in the law and the overruling of prior decisions arguably goes against this. As elsewhere in the Commonwealth, legislation can change the common law and it supersedes precedent. Again, great care is taken to ensure this only occurs where necessary, for the purpose of ensuring certainty in the law.

The region’s laws have evolved to meet the region’s very particular needs and have created a distinctive legal landscape. These unique differences are quite apparent in the area of tax law. Within the so-called “developed” world, the evolution of tax law lies almost exclusively in the hands of the legislative drafter. These laws are subject to relatively frequent amendments in an effort to keep them current; when a lacuna in the law appears, or, a new legal need arises, the existing legislation is immediately reviewed and revised to address it.

Within the region, however, statutes that regulate tax law and practice are primarily seen as mere framework. The evolution of the law itself however, comes about with each decided case. Like Dr. Frankenstein crafting his wonderful new creature, each case becomes the sinew, flesh and organs that both create and give life to the legislation.

Caribbean Common Law Tradition

Like Dr. Frankenstein crafting his wonderful new creature, each case becomes the sinew, flesh and organs that both create and give life to the legislation.

The arguing of a tax matter before the courts, therefore, depends on the attorney’s understanding not only of Parliament’s purpose in passing the requisite law but also functions to aid in both the interpretation and application of that law. Each decision from the judges creates legal precedent, forming and shaping the body of law over time.

The law is also significantly affected by the jurisprudence resulting from the CARICOM and OECS political organisations and the various international treaties the individual islands have signed. For example, trade and other economic considerations for individual CARICOM members are ruled significantly by the various CARICOM agreements and each member state enjoys preferred status to non-member states. CARICOM’s influence on regional jurisprudence continues to expand through the decisions of the Caribbean Court of Justice (CCJ) as it interprets the parameters of the agreed treaties. In addition to the aforementioned, each island is signatory to a number of international law treaties. In the civil law systems of St. Lucia and Suriname, these become binding upon signature. However, in the common law the treaties are ratified but are typically not binding, the exception being customary international law. Nonetheless, they have great influence on the domestic law of the individual islands,

Therefore, whenever a new judgment in a tax matter is laid down by the courts, it is reflective not only of the norms particular to the Caribbean at that time, but it also reflects the persuasive authority of both regional and international jurisprudence. It is based on the premise that the judge in the courtroom is best suited to the development of the law, assisted by attorneys as they plead their cases before them.

Perhaps the most important thing for a foreign attorney to realise is this: the region’s tax laws are not static and their development is not left in the hands of the drafter who is removed from the reality of what he is being asked to create. Instead, tax legislation in the region is very much a living thing that can be said to operate almost in real time and the effective tax practitioner must constantly grow and advance to meet the region’s very particular needs.


CAVEAT


This note is published by www.caribbean-tax.com on July 9, 2016 for discussion purposes only. Should you require legal advice, please contact us and we shall be happy to make a referral to a local tax practitioner.


DISCUSSION FORUM


We would like to hear from you! What do you think? Please leave your comments in the box below.

Caricom DTT Analysed

Caricom and OECD Treaties Compared

The OECD and UN Model Treaties have been analysed. Lots has been written. Too much infact. On the other hand, there is a dearth of commentary about the Caricom Double Tax Treaty. Jurists have often attempted to analyse the Caricom Treaty as if it is intended to operate like the OECD model, but we do not agree with this approach. And here is why… Work In Progress

Transfer Pricing in Caribbean Tax Law

DEFINITION


Transfer pricing is the setting of the price for goods and services sold between controlled (or related) legal entities within an enterprise.


THE “ARM’S LENGTH” PRINCIPLE


In principle, a appropriate price is one that should match either what the seller would charge an independent (uncontrolled), arm’s length customer, or what the buyer would pay an independent, arm’s length supplier.

Numerous countries around the world have implemented legislation based on the arm’s length principle, which underpins Article 9 of both the OECD Model Tax Convention on Income and on Capital and the United Nations Model Double Taxation Convention between Developed and Developing Countries. This principle is the foundation of the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (“the OECD Guidelines”).

Paragraph 3 of the Commentary on Article 9 of the United Nationals Model Convention states that:

With regard to transfer pricing of goods, technology, trademarks and services between associated enterprises and the methodologies which may be applied for determining correct prices where transfers have been on other than arm’s length terms, the Contracting States will follow the OECD principles which are set out in the OECD Transfer Pricing Guidelines. These conclusions represent internationally agreed principles and the Group of Experts recommends that the Guidelines should be followed for the application of the arm’s length principle which underlies the article.


OECD GUIDELINES


Acceptable Transfer Pricing methods can be placed into one of two categories:

I.  The “Traditional” Methods:

(a)  Comparable Uncontrolled Price Method. The comparable uncontrolled price method consists of comparing the price charged for property or services transferred in a controlled transaction to the price charged for property or services transferred in a comparable uncontrolled transaction.

(b)  Resale Price Method. The resale price method consists of comparing the resale margin that a purchaser of property in a controlled transaction earns from reselling that property in an uncontrolled transaction with the resale margin that is earned in comparable uncontrolled purchase and resale transactions.

(c)  Cost Plus Method. The cost plus method consists of comparing the mark up on those costs directly and indirectly incurred in the supply of property or services in a controlled transaction with the mark up on those costs directly and indirectly incurred in the supply of property or services in a comparable uncontrolled transaction.

II.  The “Profit” methods:

(d)  Transactional Net Margin Method. The transactional net margin method consists of comparing the net profit margin relative to an appropriate base (e.g. costs, sales, assets) that an enterprise achieves in a controlled transaction with the net profit margin relative to the same base achieved in comparable uncontrolled transactions.

(e)  Transactional Profit Split Method. The transactional profit split method consists of allocating to each associated enterprise participating in a controlled transaction the portion of common profit (or loss) derived from such transaction that an independent enterprise would expect to earn from engaging in a comparable uncontrolled transaction. When it is possible to determine an arm’s length remuneration for some of the functions performed by the associated enterprises in connection with the transaction using one of the approved methods described in subparagraphs 2 (a) to (d), the transactional profit split method shall be applied based on the common residual profit that results once such functions are so remunerated.

Priority of methods

On October 5, 2015, the OECD Secretariat published final papers outlining consensus actions under the G20/OECD Base Erosion and Profit Shifting (BEPS) Project. The most appropriate transfer pricing method should be selected, and traditional and profits methods are considered equal.  However, a sufficiently accurate CUP, when it exists, is preferable. The BEPS project encourages that both sides of a transaction be considered when selecting the most appropriate method, even when the method ultimately selected is a one-sided method.


TRANSFER PRICING IN CARIBBEAN TAX LEGISLATION


As of the date of this blog, Jamaica is the only country in the Caribbean with Transfer pricing legislation, in the form of the Income Tax Act (Amendment) (No. 2) Act of 2015, which received the Governor General’s assent on December 16th, 2015.

In our view, it is inevitable that other Caricom member states will introduce similar legislation in due course. The Government of Trinidad and Tobago, for example, in the Minister of Finance’s Financial Year 2014 Budget Statement, has already indicated that technical work is ongoing in order to introduce transfer pricing legislation in accordance with the OECD’s guidelines.


TRANSFER PRICING REGULATION IN THE ABSENCE OF LEGISLATION


Anti-Avoidance Legislation

The income tax acts of the Commonwealth Caribbean countries empower local tax authorities to disregard any transactions that they view as artificial or fictitious. This general power has been utilised by the tax authorities in dealing with related parties and large multinational companies to evaluate whether transactions are at arm’s length.

The Caricom Double Taxation Treaty and Common law Principle

In the absence of specific Transfer Pricing legislation in domestic legislation, it is also noteworthy that the Caricom Double Taxation Treaty has been ratified in the domestic law of its member states, and contains the following Article:

“Article 10

ASSOCIATED ENTERPRISES

Where

(a) an enterprise of a Member State participates directly or indirectly in the management, control or capital of an enterprise of another Member State; or

(b) the same persons participate, directly or indirectly in the management, control or capital of an enterprise of a Member State and an enterprise of another Member State;

and in either case conditions are made or imposed between the enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise, and taxed accordingly.”

In light of this, it is clear that the “arm’s length principle”, which is at the heart of the OECD guidelines, is incorporated into the local law  of the signatories of the Caricom Tax Treaty. Accordingly, although there may not be specific regulations detailing filing, reporting (such as exist in Jamaica, for example) and other compliance obligations, which exist in countries with specific transfer pricing legislation, there is nonetheless a legislative foundation for Caribbean tax authorities to challenge any arrangement between associated enterprises resident in two or more Caricom member states that do not satisfy the arm’s length principle.

Consequently, multinational enterprises need to be cognisant of the internationally recognized transfer pricing standards, and ensure that related party transactions within Caricom conform to these standards in order for them to withstand the scrutiny of the Caribbean tax authorities. Specifically, in the absence of legislation, the OECD guidelines will be highly persuasive in the development of the case law delineating the scope of arm’s length principle within Caricom, as is consistent with the Caribbean’s common law tradition.


CAVEAT


This blog is published by the site administrators of www.caribbean-tax.com on June 1st, 2016 for discussion purposes only. Should you require legal advice, please contact us and we shall be happy to make a referral to a local tax practitioner.


DISCUSSION FORUM


We would like to hear from you! What do you think? Please leave your comments in the box below.