In an increasing number of countries, laws and regulations are established that force companies to be transparent with regard to their handling of tax risks, (fiscal) risk management, risk appetite – also in relation to tax planning – and the way of dealing with tax authorities.
This concerns the actual fiscal management, including the way in which the company makes tax decisions, for instance regarding distributed information about the systems and the means used for effective monitoring of fiscal risks.
The Finance Bill, that was established in 2016 by the United Kingdom, forces the Board of Directors of British multinationals not only to compose a tax strategy, but also to publish it. An important new aspect of this Finance Bill is that it obliges one person within the Board of Directors to be assigned the responsibility for the tax strategy.
The power of this legislation resides in the fact that it forces the Board of Directors to actually determine a position regarding the company’s tax morality. This is recorded in a public statement, which makes it an important criterion in measurement and evaluation of the performance of the Board of Directors itself (fiscal KPI).
Supervisory bodies such as the Supervisory Board (and auditors?) will have to evaluate whether the board indeed conforms to the formulated fiscal norm.
Moreover, as appears from the parliamentary history, it is expected that companies that have not published their business strategy are more likely to accept a higher risk appetite with regard to tax risks, compared to companies that have defined and formally published a strategy, both internally and externally.
There is a clear difference between this new legislation and existing initiatives such as the Senior Accounting Officer (SAO) regime in the UK. Whereas SAO is aimed at adequate tax accounting specifically, the new legislation goes beyond the SAO because it requires companies to provide insight into the business strategy with regard to taxes.
We think that this type of legislation realizes the objective measurability of the ‘Tone at the top’ in the fiscal domain. Without ownership and active involvement of the Board of Directors, the realization of vast changes or large investments is a hopeless mission when coming from change management.
By placing the responsibility for the execution of the fiscal strategy on the Board of Directors, the tax division will receive the tools required for adequate execution of its function – mandate, resources, budget etc. – much faster. This will be amplified when signals from external sources – the auditor and the tax authorities – that promote prioritizing of taxes, also reach the Board of Directors.
The assignment of accountability, the composition and publication of the tax strategy would be an improvement of the current ‘Horizontal Monitoring’ policy in the Netherlands, as it brings the fiscal responsibility to the Board of Directors.
In practice, the Horizontal Monitoring relies too much on the relation between the Taxpayer coordinator (account manager) of the Dutch tax authorities and the Head of tax of the company.