Electronic Business – Managing Tax in a Changing World

This article focuses on the corporate tax issues, direct and indirect, which impact international businesses as they strive to take advantage of electronic business (e-business).

The electronic business revolution is enabling significant improvements in business performance. How does this affect changing business processes and what are the tax implications?

There are many ways to define e-business. It is a broader concept than e-commerce, which tends to focus on the marketing, selling and buying of products and services on the Internet. E-business is about improving business performance, through inter-networking, to connect the value chains between businesses, and between businesses and customers, in order to improve service, reduce costs and open new channels.

E-business depends on the rapid developments in Internet technologies, telecommunications, computer networking and security. "What matters in every case is that the new technologies can transform business processes, the way products and services are created and marketed, the structure and goals of the enterprise, the dynamics of competition, and the actual nature of the enterprise" (Don Tapscott - author of "The Digital Economy").

The changes in business processes lead to new business models and in turn create a new set of facts and circumstances that can materially affect the incidence of taxation. The following comments focus on the corporate tax issues, direct and indirect, which impact international businesses as they strive to take advantage of e-business.

What then are the commercial objectives of transforming the business processes and what are the tax pitfalls and opportunities arising? Government and inter-governmental policy discussions are continuing. In the meantime, business has to move forward. So, how are tax directors and practitioners to assess the impact of the changes and to plan for optimised tax efficiency? This article proposes a framework for assessing the implications and provides a look at a tax planning tool that highlights the variables. This combined approach helps identify the tax areas that merit most attention. E-business will affect industries and market sectors differently. The article explores this for discernible patterns in the tax implications. There is a correlation between the nature of transformations in business process and the key tax issues arising.

The overall conclusion is that a systematic and holistic approach to the evaluation of tax issues arising from e-business provides a sound platform for active tax planning.

The Different Stages of Development Companies can be at quite different stages in adopting e-business. The following four-level approach indicates typical features of development:

1. On-line presence. Typified by a web site as a "virtual storefront". This level has no real impact on business processes except within the marketing function.
2. Integrated on-line business. This occurs when on-line business activities are integrated with existing internal processes and systems. The intended benefit is substantial reduction in operational and transactional costs.
3. Advanced on-line business. At this stage, on-line capabilities are further developed. The content, inter-activity and technological capabilities of the web site are improved for better customer experience. Secure payment systems are included. The integration with processes and workflow is intensified, e.g., data warehousing, integrated call centres and a real strategy is developed for every stage of the supply chain. This step generates additional revenues at a lower cost and new ways of managing customer relationships.
4. Full electronic business. This means interacting and trading on-line with customers and business partners on a one-to-one basis. Dynamic relationships and additional revenues are created by cross-selling.

Arguably, all the primary business process areas have potential for beneficial change. These might include marketing, sales and customer management; product development; supply chain management; financial and cost management and human resources management. As an example, drilling down to see the detail under marketing, one finds the following processes:

• Understanding customers and markets;
• Developing marketing strategies and plans;
• Managing products and services;
• Developing and maintaining pricing;
• Planning and managing sales channels;
• Advertising and promoting products.

To appreciate the wealth of sub-processes which lie beneath these groupings, it is worth looking in more detail at "planning and managing sales channels". In the technology industry context, the traditional plan and manage sales sub-process is initiated when either an organisation needs to determine how best to present its products to the market, or after a channel plan has already been established and the channels need review and maintenance. The company may decide that it wants to market its products directly to the public, that it may want to use distributors to distribute the product throughout the market place, or that it may want to use value-added resellers to sell the product. Once the channels are determined, the company must execute the channel plan, setting up the appropriate resellers or distributors; or creating an internal marketing process. The organisation continuously monitors the channel, tracking the sales results and order flow. Revisions to the channel plan and strategy may result in the addition or removal of channel partners.

Once the plan for sales channels is determined and the channels are established, the organisation may provide tools which allow them to interact efficiently. It may also provide marketing materials and product information, and monitor sales leads received and sent through the channels. The outside organisations can then easily provide feedback on the tools, as well as new marketing information for use in the future. In addition to external parties, organisations can bypass traditional channels by using automated channels, such as the Internet, to market their products and services. The following list of e-business functionality supports this process step:

• Sales force automation tools;
• On-line access to enterprise resource planning systems from the field;
• FAQs and tech tips in on-line knowledge bases;
• On-line marketing materials.

These include:

• Customer satisfaction - distributors and value-added resellers feel that they are "linked into" the e-business enabled organisation;
• Cycle-time reduction - information flow to channel partners is close to real time;
• Operating effectiveness - new automated channels emerge which allow the organisation to market without the cost or hassle of traditional relationships.

The commercial goals and objectives of business process transformation include plans to:

• Create new revenue streams and increase sales;
• Reduce both transactional and overhead costs;
• Improve customer service and satisfaction;
• Improve return on investment and equity.

The next generation e-business strategies include:

• Disintermediation and re-intermediation;
• Value chain integration;
• Application and business process outsourcing;
• Industry consortia and re-engineering;
• Cybersourcing.

Without undue speculation it is clear that the various IT and communications enablers will lead to further evolutions and changes in business processes and in the shape and form of the businesses themselves.

Clearly some business process areas have greater tax sensitivities than others. The aim should be to assess the planned process changes and to protect the benefits by integrating tax efficiencies into the overall business models. For example, if marketing processes can be performed just as effectively (if not more so) to overseas customers without the need for a local presence there must be opportunities to reconsider whether foreign taxes can be reduced. This takes the commercial and tax logic of "commissionaire" arrangements one stage further. As companies’ business models change to take advantage of the opportunities to transform processes there will be an impact on revenues and costs with the possibility of major tax implications. The tax management objective must be to enable the business to retain the commercial benefits on a net basis. This means managing tax to avoid pitfalls and to capitalise on opportunities. Ignoring tax could be competitively fatal.

As indicated above, the aim is to ensure the tax efficiency of the evolving new business model. This needs to be considered holistically for at least two reasons. Firstly, tax planning might itself be a reason for changing an aspect of the business model. The proposed process transformations should not be regarded as fixed and necessarily having to be effected in one particular way. For example, if technology now enables on-line rather than physical delivery, there may be good reason to change the process itself thereby obtaining VAT or U.S. State Sales Tax advantages. Secondly, there may be a number of different tax, legal and financial issue areas to be considered with multiple interdependencies. While traditional analysis of each facet is potentially relevant, it is the overall net impact on new business model tax efficiency which is important.

With any major change in business conduct, consideration should be given to key direct and indirect tax issues.

Direct tax issues include:

• Taxes on income, at national and local level;
• International tax, including foreign and controlled foreign company taxation and withholding taxes;
• Transfer pricing;
• Capital gains, e.g., on intellectual property rights or goodwill.

Indirect tax issues include:

• VAT and Sales & Use taxes;
• Customs and Excise duties;
• Stamp and transfer taxes.

Note that for both direct and indirect taxes there may be planning and compliance aspects. Some of the changes in process will result in moving from a tax status quo, that may be reasonably settled in its agreed implications, to a new model with inherent uncertainly. For example, a U.S. company with a presence in the United Kingdom may for years have avoided the technical PE question by settling instead for modest U.K. tax on the basis of a mark-up on expenses. If it is now proposed to sell into the United Kingdom using the Internet, and to reduce or eliminate the U.K. presence, a new situation will need to be reviewed. This may allow the non-resident seller to argue they are not trading in the United Kingdom, even if they still have a branch or permanent establishment there. Overall considerations will not only involve attributable income matters, and the impact on U.S. taxes, but also any VAT issues arising. Depending on the overall economic effect of the new model on U.K. taxes payable, one might anticipate corresponding interest on the part of the relevant fiscal authorities. This will involve judgements on likely outcomes. Lack of certainty may be compensated by flexibility. An overall judgement needs to be made, hence the holistic approach.

One well-developed approach involves three basic steps, which are as follows:

Step 1: Find out what economic functions underlie the technology and the transactions.

Step 2: Systematically consider the key tax issues by business process for each jurisdiction and for each type of tax.

Step 3: Test the tax results by taking into account potential characterisations of the income generated and other tax relevant variables.

A key objective is to see how the tax results can be improved. We developed a planning tool to help companies review the possibilities. The planning tool highlights the key variables and facilitates consideration of the planning opportunities. In summary, the user works through the following checklist to prompt thoughts of the factors one might change in testing for tax efficiency:

• Who? - Can you change the tax identity of the parties, e.g., use a foreign subsidiary or a branch rather than the parent?
• What? - Can you change the subject matter of the transaction, e.g., grant a licence rather than make an outright sale. There are many interesting characterisation angles.
• When? - By changing the timing of transactions or their sequence there can be an impact, e.g., consider the effect on conclusion of contracts which may determine where sales are made.
• Where? - Changing the place of activity can affect jurisdictions (legal and tax), nexus, place of supply, etc.
• How? - Perhaps the precise mechanics of implementation of the change in business process can be changed?
• How much? - Who gets what, where and when? This is critical for consideration of where costs and income arise, e.g., transfer pricing aspects.

The benefit of using the planning tool is that it helps companies compare, contrast and determine likely tax exposures in any jurisdiction where there are operations. The advantage of a systematic, analytical approach is to surface potential issues, pitfalls and opportunities with more confidence of proper coverage. Judgement comes into the analysis because tax treatments are by no means certain. This does not negate the approach because it helps to identify the areas that merit closer consideration. But what are the uncertainties? There are several.

• Companies will appreciate that, at government and intergovernmental levels, there are a number of initiatives on e-business, several of which are tax specific. So, in the day-to-day world of tax negotiation, it seems likely it will be several years before the issues discussed, for example at OECD level, translate into definitive law and practice.
• Technology will continue to evolve to change what is possible. Whether or not a server is a PE in Country X is a redundant issue where the risk can be avoided altogether by locating the server elsewhere. As technology changes, so will new transformation opportunities emerge to improve business processes. This means that business models must be regarded as evolving and not static. So, the facts will not stand still. One interesting effect is that the underlying business dynamics and economics also change. As profiles of costs, risks, incomes and profits change there are also changes in the consideration of the underlying drivers of cost and profitability. Consider the problem of determining comparable pricing for arm’s length purposes. What is the basis to be in a world where e-business is enabling radical changes to business models?
• Some of the judgements to be made will be about the likelihood of any new approach by fiscal authorities. For example, suppose a retail bank is considering new international markets and resolves to establish a tax-efficient offshore structure for this venture. How might the authorities respond? Maybe banking regulations will change? Maybe the E.U. initiative on harmful tax competition (Code of Conduct group established following the ECOFIN Council meeting on December 1, 1997) will include a review of e-business implications?
• There may be uncertainties about companies’ attitudes to tax planning because in a more competitive world it becomes essential to compete on all counts. Companies will be under pressure to reduce tax as a business cost and it will be ever more important to reduce the tax costs which fall on suppliers and customers since advantages for them can translate into competitive advantage for the business itself. So, there may be many uncertainties to think about in considering risks and benefits, pitfalls and opportunities. The real judgement comes in assessing which are real and which are theoretical, and their relative significance in the overall picture.

Assessing the impact of risks and benefits requires some quantification that takes account of the interdependencies in a group’s tax position. Suppose there is a risk of a PE in France resulting in exposure to French tax. Perhaps relief from double taxation effectively eliminates the problem. Maybe low value losses can be used to absorb unexpected taxable profits arising - interestingly, this points to the common technique of trying to move portable e-business income to countries where losses have built up. This is all very well, provided there are no unforeseen capital gains or controlled foreign company legislation consequences. The framework approach should be adapted to reflect relative prioritisation. For example, is cash flow more important than effective rates of tax in company accounts, or is it really earnings per share that should drive everything? The overall impact analysis needs to be expressed in a "currency" reflecting that prioritisation. Accordingly, appropriate weightings should be given to tax reductions, deferrals, resultant benefits on effective rates of tax and earnings per share. Tax compliance aspects should not be overlooked. Collection and reporting obligations for indirect and direct taxes can be onerous, so the costs of compliance are relevant. Perhaps the e-business transformation of business processes can be designed to streamline tax and business accounting systems. In the majority of situations it will be reasonably clear which are the more important tax areas for attention. In such cases, it might be excessive to review all the possible variations. Intuition and judgement should point to a sensible balance. However, experience indicates that a systematic approach, albeit abbreviated, often reveals important points that are not immediately apparent.

Clearly there are differences in the way e-business will impact financial services companies compared with, say, media and entertainment companies. It might be interesting to focus on the discernible patterns because the tax implications will flow from the types of new changes that are implemented and these in turn will vary on an industry-by-industry basis. As suggested above, competitive pressure will lead companies to look for new technology and innovative business processes to reduce costs, increase revenue, and provide better customer service. Many of these businesses have global organisations that need to embrace overarching e-business strategies and look towards ground-breaking solutions. While the drivers to e-business differ among industry groups, each has important reasons for looking towards e-business. Consider the different issues involved among the following groupings:

• Products industry: consumer packaged goods, automotive, retail, pharmaceuticals;
• Technology, information, communications and entertainment: technology, publishing, broadcast, advertising, communications including telecommunications, film, music;
• Financial services: ranging from banking and insurance to investment management;
• Public sector;
• Energy and utilities.

There will, of course, be similarities in the business objectives sought by those implementing the changes. This in turn will lead to patterns in the types of processes and transformations which competing companies introduce. Accordingly, while specific cases will need particular consideration there will also be some patterns in the tax issues for consideration. Here are some examples:

• Retail organisations will be seeking to extend their reach to consumers, increasingly internationally. Indirect tax issues abound.
• Pharmaceutical companies already experience significant transfer pricing enquiry. E-business will require re-examination of research & development and intellectual property rights.
• The film industry is looking at future incremental revenues which can be derived from exploitation of film treatments into multiple formats, e.g., computer games, television shows, music. On-line delivery to end consumers raises new international tax issues.
• Electronic publishing is a natural extension of the Internet as content becomes more universally available. Future marketing will focus on the brand and tax planning may be centred around rights and value issues.
• Telecommunications companies are looking at a variety of opportunities beyond their infrastructure role. For example, telecommunications companies might host business applications to offer a low-cost entry point into enterprise computing for smaller customers. The ability to provide such services remotely offers both direct and indirect tax opportunities.
• Financial services companies will be seeking operational excellence, product leadership and customer intimacy. The combination of improved global reach and on-line fulfilment will raise tax issues about the allocation of costs, income, risks and profit.
• There will be a significant impact on government agencies. For example, their knowledge management systems will become more widespread and exchange of information, domestically and internationally, will be facilitated. OECD has already called for more cross-border fiscal audit collaboration.
• Consider VLCC, LCC and LNG carriers used by petroleum companies for transporting crude and gas. The linking of oil companies with their ship brokers, ship owners and logistics management contractors is predominantly fax and paper-based, and much redundancy exists. In the future, extranet technology will build industry-wide or corporate-centric communities which exchange and view voyage status information in real time all over the world.

Disintermediation of brokers currently regarded as independent agents may lead some to call for a reconsideration of PE issues. The patterns indicate, as expected, correlation between the nature of transformations in business process, the opportunities inherent in the evolving business models and the tax issue areas most closely related. This brings us back to the need for a framework-based approach to assess and understand the tax sensitivities. This needs to be set in context of the particular industry because of evolving industry-wide business models. In addition, one can expect to see fiscal authorities take an industry-based approach because they too will see patterns, as they have in the past. Transfer pricing is an area where there is likely to be continuous reassessment of the economic and related fiscal implications of e-business.

E-business presents threats and opportunities as companies compete in a changing world. The drive to improve business performance and increase efficiency will lead to new models of business based on radically changed processes. Tax costs will have to be managed to protect net benefits. There are tax pitfalls to be avoided and new tax planning challenges. Companies will have to judge risks and benefits in assessing proposals. It will not be easy weighing up the options to ensure proper reflection of tax technical issues and uncertainties; e-business commercial aspects; technological factors and particular industry trends. Adopting an holistic approach, using a technical framework and planning tools, will facilitate the development of a practical plan for managing the tax issues successfully.

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