New proposals from the United Nations (UN) and the Organisation of Economic Cooperation and Development (OECD) seek to address concerns from resource-rich countries about revenue risks associated with tax treaties. These treaties play an important role in assigning taxing rights between two contracting states on income from cross-border transactions that characterize the global mining sector. They also mitigate double taxation that may arise where taxing rights are not assigned to either country. However, poorly designed tax treaties can also prevent governments from collecting expected mining revenue, as examined in the IGF practice note on tax treaties.
In March, the UN Tax Committee released a proposal to include a new provision for natural resources, Article 5A of the UN Model Tax Convention. It comes shortly after the OECD’s bid to add a similar alternative provision to the Commentary on Article 5 of the OECD Model Tax Convention. The IGF has been monitoring and contributing to these developments primarily through its work on the UN Subcommittee on Extractive Industry Taxation Issues for Developing Countries. If adopted, the UN and OECD proposals would help protect the right of resource-rich countries to collect revenue from mining.
Similarities Between the UN and OECD Proposals
Both proposals lower the time required to trigger a taxable presence (“permanent establishment”) to 30 days in any 12-month period (reduced from 6 and 12 months in the UN and OECD models, respectively), reflecting a longstanding practice in oil-producing countries. This is particularly relevant to subcontractors who tend to be more mobile than licence holders and can more easily avoid establishing a taxable presence.
The OECD proposal gives resource-rich countries the right to tax capital gains from the sale of shares in extractive assets in their jurisdiction—a major source of revenue loss. It also includes an alternative provision that could be inserted into Article 15, making it easier to tax non-resident employment income arising from short-term activities in the sector. The UN model already includes these provisions.
Differences Between the UN and OECD Proposals
The OECD’s proposal would take the form of an alternative option to the Commentaries to Article 5 of the OECD model. The Commentaries provide additional technical guidance on the interpretation and operation of the OECD model but are not part of it. Conversely, the UN’s provision codifies that permanent establishment would exist with respect to natural resources even if one would not exist under Article 5, making it the default position. This arguably gives developing countries a greater chance to negotiate the new article with treaty partners.
The UN proposal expands the scope to cover non-renewable and renewable resources, whereas the OECD stops at non-renewables. The OECD’s approach reflects the distinct taxation of mining, oil, and gas common in resource-rich countries. A special provision dedicated to extractives is a logical extension of this approach and may be easier to negotiate in tax treaties as a result. Other location-specific natural resources—wind, water, and solar—are an increasingly important part of the global energy mix and may warrant special treatment as well.
Challenges Facing Both Proposals
Both proposals attempt to define the types of activities subject to the new provisions. In both cases, the activities must relate to natural resource exploration or exploitation. The OECD aims to address this challenge by focusing on “specialized services” for activities. This means engineering services and seismic surveys are included, while supplying a mine operator with electricity or water would be excluded, according to the OECD draft.
Governments will need to consider the trade-offs between broadening opportunities for revenue collection with the potential for increased compliance and administrative burdens.
The UN proposal, by contrast, covers all subcontractors, not only those performing specialized services, including catering companies, for example. This is not new for the UN model which already contains Article 12A that covers specialized services. Plus, an additional separate article – “Article XX” – has been proposed to allow countries to tax all fees for services. In that way, Article 5A does not change whether income from services is taxed, but how it is taxed.
An Alternative Approach
In its input to the UN Subcommittee on the UN Model Update, the UN Subcommittee on Extractive Industry Taxation has proposed an alternative approach for the UN model. It proposes a standalone extractive industries article—an approach taken by several oil and gas-producing countries.
A standalone article is a special clause addressing permanent establishment issues in the extractives sector, as well as other types of income, such as capital gains and employment income. While some of these issues are already covered in the UN model, they may be harder for developing countries to negotiate because they go against the status quo by allocating more taxing rights to source countries that host the resources. Widespread acceptance that extractives should be taxed differently may make it easier for countries to advance progressive positions on these types of income if captured in a standalone article.
The UN and OECD proposals are a step towards stopping tax revenue leakage from mining, oil, and gas caused by tax treaties. The changes reflect emerging tax treaty practices in resource-rich countries. In many cases, governments will need to consider the trade-offs between broadening opportunities for revenue collection with the potential for increased compliance and administrative burdens. The IGF will continue to provide technical inputs to these proposals and support resource-rich countries in navigating these and other international tax reforms.