International: Pillar One - Draft model rules for Extractives Exclusion published

OECD releases public consultation document on first Amount A exclusion

In brief

On 14 April 2022, the OECD released a new public consultation document with respect to the Extractives Exclusion for Amount A. This consultation was announced in the consultation document on the draft model rules on Scope, which was the subject of our last client alert. The latest consultation document, the fourth of its kind for Amount A, lays out the rules to be followed by MNE groups operating in the Extractives Industry. On 4 February 2022, the OECD issued its first extensive publication on Amount A covering the two components Nexus and Revenue Sourcing, followed by the consultation paper on Tax base determination two weeks later, both of which we discussed in previous client alerts covering Pillar One's Amount A. It should be noted that, as for the previously released draft model rules, the latest publication is a work-in-progress and subject to changes. The OECD welcomes comments from the public before 29 April 2022, following which a more detailed commentary on a number of technical items is expected to be released.


Contents

Comments

  • Amount A is proposed to come into effect in 2023 and will apply to MNE groups with a global turnover above EUR 20 billion (or local equivalent) and profitability above 10%, subject to some exceptions. 
  • Extractives and Regulated Financial Services Activities will be excluded from the scope of Amount A. The consultation document defines Extractive Activities in Schedule F. Regulated Financial Services will be defined in a forthcoming Schedule G, a publication that we are also eagerly awaiting. 
  • The definition of Extractives Activities contains a "product test" and an "activities test". Both must be satisfied for the activities to be deemed excluded for Amount A purposes.
  • Schedule F of the draft model rules provides an overview of the seven steps that an MNE, operating in the Extractive Industry must potentially follow. Out of these seven steps, steps 2 and 3 outline the Extractives Exclusion. 
  • It is important to note that public feedback is requested only on the Extractives Exclusion, i.e., steps 2 and 3.

MNE groups operating in the Extractive Industry are well-advised to start familiarizing themselves with the draft model rules on the Extractives Exclusion of Amount A to determine whether and how Amount A will apply. A more detailed analysis will be required once the model rules have been finalized and complemented by the explanatory commentary.

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