Comment: Growing ‘likes’ for higher taxation of tech giants

The amount of tax HMRC thinks was underpaid last year was a record high, says Collins. Picture: contributed.

Figures obtained by Pinsent Masons show that HMRC was investigating £27.8bn of tax possibly underpaid by large corporates in 2018, up 14 per cent from the £24.8bn believed to be underpaid the year before. US-based multinational businesses represented 17 per cent of the total amount of tax that HMRC was targeting last year, with Swiss-based businesses representing the second highest at 6 per cent of underpaid tax, followed by Ireland (3 per cent) and France (2 per cent).

The figures refer to “tax under consideration” by HMRC’s Large Business Directorate (LBD), which is an estimate of the maximum potential additional tax liability across all inquiries, before full investigations are completed. Typically, after investigation of individual cases, the amount due tends to be around half the original estimate. The LBD covers the 2,100 largest and most complex businesses in the UK.

Diversion of profits overseas by multinational businesses is being targeted, with technology groups a particular focus. This is because digital business models enable a company to generate revenues in places where it has little physical presence and therefore, under current international tax rules, a limited tax liability.

This growing scrutiny of the diversion of profits by HMRC comes after recommendations made by the Organisation for Economic Cooperation and Development in 2015. The UK’s Diverted Profits Tax (DPT) was introduced in 2015 to deter activities that divert profits away from the UK so that they are not subject to corporation tax. DPT is paid at 25 per cent, compared to corporation tax at 19 per cent.

This higher rate is intended to be an incentive to groups to adjust their transfer pricing, as paying more corporation tax can eliminate a DPT liability. DPT raised £388 million in 2017-18 – more than the £360m forecasted when the tax was introduced. HMRC will be focusing on the tax affairs of all the businesses covered by its LBD in the coming year and it’s not just multinationals on HMRC’s radar – the affairs of all large businesses are under growing scrutiny. The amount of tax HMRC thinks was underpaid last year was a record high and it will be looking to act.

In January HMRC launched a new “profit diversion” compliance facility that lets firms restructure cross-border arrangements that divert profits overseas and pay back any tax that they owe. If a business makes a disclosure, they will face lower penalties than they otherwise would have and will not be subject to investigation.

HMRC has begun issuing “nudge letters” to those on its “hit list” of businesses it suspects are diverting profits and expects those operating cross border to have revisited their transfer pricing policies to check they accord with what is actually happening in practice. HMRC is putting a huge amount of resources into counteracting profit diversion and no business operating cross-border to a significant extent can afford to be complacent.

As part of its efforts to increase tax paid by technology groups, the UK government has proposed a new digital services tax, coming into effect in 2020. It is a 2 per cent tax on revenues of firms considered to derive significant value from the participation of users and it will catch search engines, social media platforms and online marketplaces.

Its implementation is fraught with difficulties, like how a business works out what proportion of its revenues are linked to the participation of UK users when those users are not paying to use the platform, for example. France, Italy, Spain and Austria are proceeding with their own measures for a 3 per cent tax on the revenues of certain digital firms, while the OECD wants to reach a solution by the end of 2020.

Jason Collins, partner and tax disputes expert at law firm Pinsent Masons.