《税法 Tax Law》参考文献：KPMG调查报告——Tax risk management in the financial sector.pdf_大学文库

Executive summary Tax has always been a significant factor in the overall risk profile of a business: it can eat into the revenues, swell the expense base and erode one third or more of profitability, so you have to get it under control The growth in cross-border transactions, the tight focus of fiscal authorities around the world and the increasing sophistication of tax regimes have all made international taxation more complex in recent years In some shape or form, tax is embedded in almost every aspect of the key financial data which a company publishes. It is also an area where significant judgment is required- itself a generator of risk. But even though risk management is pervasive and tax is a key component, there is a historical tendency for tax to be viewed as a complex area which should be left to the tax professionals. This can lead to tax becoming isolated from the rest of the business. It has certainly not commonly been subject to independent review or oversight by Boards. Under the influence of new legislation like the Sarbanes-Oxley Act 2002, this approach is no longer tenable This poses interesting questions. How can senior management-and the business as a whole- ensure they are lear about what the tax function(Tax )is doing? And are the same standards of risk management applied to tax as to other material areas of the business? ax experts should now accept that their strategies and processes will have to be subject to the same rigor as every other area of business. Similarly Boards and tax directors should take charge of the tax risk assumed by their corporations, before they become aware of it for the wrong reasons Key themes from our survey Tax departments cannot afford to be isolated from the rest of the business. Tax is a function like any other it requires a strategy on risk that is well understood within the organization and takes into account the whole risk spectrum, rather than focusing solely on tax technical issues. Boards need a clear understanding of the work Tax is doing and its effect on overall risk. Boards must keep asking questions about controls and the tax consequences of major transactions, and ensure that reliable independent reviews are in place Tax directors need to re-focus their attention to ensure they do not remain rooted in corporate tax. A significant part of the overall tax function is often not under the control of tax directors, so they must be sure they are fully informed on all issues-at global, national and local level The Sarbanes-Oxley Act has been instrumental in increasing the level of attention paid to tax risk. Our survey revealed that the organizations directly affected by the Act have focused greater attention on controls relevant to tax not surprisingly, our results revealed the financial industry's innate conservatism. Nearly a half of ur respondents said that either they would not do anything to provoke the tax authorities in the first place, or alternatively that their organization would not go to court to defend its tax planning Respondents felt too much time was spent on compliance and not enough on planning. Better use of technology and other efficiencies would enable tax professionals to re-focus their efforts 0 2004 KPMG International. KPMG International is a Swiss cooperative of which all KPMG firms are members. KPMG International provides no services to client Each member firm is a separate and independent legal entity and each describes itself as such. All rights reserved

1 © 2004 KPMG International. KPMG International is a Swiss cooperative of which all KPMG firms are members. KPMG International provides no services to clients. Each member firm is a separate and independent legal entity and each describes itself as such. All rights reserved. Executive summary Tax has always been a significant factor in the overall risk profile of a business: it can eat into the revenues, swell the expense base and erode one third or more of profitability, so you have to get it under control. The growth in cross-border transactions, the tight focus of fiscal authorities around the world and the increasing sophistication of tax regimes have all made international taxation more complex in recent years. In some shape or form, tax is embedded in almost every aspect of the key financial data which a company publishes. It is also an area where significant judgment is required – itself a generator of risk. But even though risk management is pervasive and tax is a key component, there is a historical tendency for tax to be viewed as a complex area which should be left to the tax professionals. This can lead to tax becoming isolated from the rest of the business. It has certainly not commonly been subject to independent review or oversight by Boards. Under the influence of new legislation like the Sarbanes-Oxley Act 2002, this approach is no longer tenable. This poses interesting questions. How can senior management – and the business as a whole – ensure they are clear about what the tax function (‘Tax’) is doing? And are the same standards of risk management applied to tax as to other material areas of the business? Tax experts should now accept that their strategies and processes will have to be subject to the same rigor as every other area of business. Similarly Boards and tax directors should take charge of the tax risk assumed by their corporations, before they become aware of it for the wrong reasons. Key themes from our survey Tax departments cannot afford to be isolated from the rest of the business. Tax is a function like any other: it requires a strategy on risk that is well understood within the organization and takes into account the whole risk spectrum, rather than focusing solely on tax technical issues. Boards need a clear understanding of the work Tax is doing and its effect on overall risk. Boards must keep asking questions about controls and the tax consequences of major transactions, and ensure that reliable independent reviews are in place. Tax directors need to re-focus their attention to ensure they do not remain rooted in corporate tax. A significant part of the overall tax function is often not under the control of tax directors, so they must be sure they are fully informed on all issues – at global, national and local level. The Sarbanes-Oxley Act has been instrumental in increasing the level of attention paid to tax risk. Our survey revealed that the organizations directly affected by the Act have focused greater attention on internal controls relevant to tax. Perhaps not surprisingly, our results revealed the financial industry’s innate conservatism. Nearly a half of our respondents said that either they would not do anything to provoke the tax authorities in the first place, or alternatively that their organization would not go to court to defend its tax planning. Respondents felt too much time was spent on compliance and not enough on planning. Better use of technology and other efficiencies would enable tax professionals to re-focus their efforts

Strategy The starting point in managing and controlling a group s tax should be to define its tax strategy. The tax director- with approval from his Board - needs to set out the principal objectives, all of which should tie into the underlying business objectives 65 percent of our respondents had written objectives. The survey did not ask whether these were part of a broader strategy document, or part of individual appraisals, but on the surface the result is encouraging. 86 percent of those with written objectives agreed or strongly agreed that their objectives supported the overall business objectives and were suitably aligned. However, while this suggests that objective setting is becoming more prevalent, a necessary postscript is that there are still 34 percent for whom written objectives remain an unknown luxury. Yes, for some the objectives may be understood from conversations or osmosis, but are these respondents really expected to manage the tax function's performance, and be judged, on such a basis? ca respondents had oos ity of Only a small minority of those responding(14 percent) had obtained the Board's formal approval of Only a small minori ined their objectives(fig 4 the Board's formal approval of their obiectives Figure 4: How tax The objectives are formally agreed by the board 14% departments objectives are set and approved The objectives are approved outside the tax department (e.g. by the CFO) The objectives are approved solely by the tax department% There 10%20%30%40%56% Base: All respondents ( 96) Percentage of respondents A greater number had received approval from outside Tax, often from the CFO, but the overall picture is one where the most senior management has either not signed off on what Tax is trying to do, or believes it to be something which can be delegated. Yet tax can erode a third or more of a companys profitability. Is it likely that such a level of trust would be placed in other areas of the business which have such a potential impact on the bottom line? Because of its specialized nature tax is seldom subject to close oversight by the board of directors. This is causing concern in some quarters. In Australia, the Commissioner of Taxation is writing to the chairmen of publicly listed companies', advising them to take a greater role in the management of tax risk. Source Australian Taxation Office 0 2004 KPMG International. KPMG International is a Swiss cooperative of which all KPMG firms are members. KPMG International provides no services to client Each member firm is a separate and independent legal entity and each describes itself as such. All rights reserved

3 © 2004 KPMG International. KPMG International is a Swiss cooperative of which all KPMG firms are members. KPMG International provides no services to clients. Each member firm is a separate and independent legal entity and each describes itself as such. All rights reserved. Strategy The starting point in managing and controlling a group’s tax should be to define its tax strategy. The tax director – with approval from his Board – needs to set out the principal objectives, all of which should tie into the underlying business objectives. 65 percent of our respondents had written objectives. The survey did not ask whether these were part of a broader strategy document, or part of individual appraisals, but on the surface the result is encouraging. 86 percent of those with written objectives agreed or strongly agreed that their objectives supported the overall business objectives and were suitably aligned. However, while this suggests that objective setting is becoming more prevalent, a necessary postscript is that there are still 34 percent for whom written objectives remain an unknown luxury. Yes, for some the objectives may be understood from conversations or ‘osmosis’, but are these respondents really expected to manage the tax function’s performance, and be judged, on such a basis? Only a small minority of those responding (14 percent) had obtained the Board’s formal approval of their objectives (fig 4). A greater number had received approval from outside Tax, often from the CFO, but the overall picture is one where the most senior management has either not signed off on what Tax is trying to do, or believes it to be something which can be delegated. Yet tax can erode a third or more of a company’s profitability. Is it likely that such a level of trust would be placed in other areas of the business which have such a potential impact on the bottom line? Because of its specialized nature tax is seldom subject to close oversight by the board of directors. This is causing concern in some quarters. In Australia, the Commissioner of Taxation is writing to the chairmen of publicly listed companies1 , advising them to take a greater role in the management of tax risk. Figure 4: How tax departments’ objectives are set and approved Only a small minority of respondents had obtained the Board’s formal approval of their objectives 1 Source: Australian Taxation Office

Risk management What do we mean by tax risk? The broad answer is that it is the risk that something may go wrong, so that the tax consequences of a transaction or business may not be those expected However one can be more specific than this. For financial organizations, tax risk can be better understood if it is divided into the general risks that most commercial organizations are likely to face, and the specific risks attached to financial products offered by the industry. These are llustrated in Tables 1 and 2 below Table 1-General risks Type of risk Nature of risk compliance Technical or factual inaccuracies Miscoding of expenditure Late payment of tax Failure to plan Technical imperfe cessive aggression in the planning Failure to implement planning corectly Accounting Incorrect recognition of tax liability Table 2-Transaction risks Type of risk Technical The technical basis of the tax treatment is successfully challenged The tax analysis is dependent on an accounting treatment which is not accepted change of law a change of law affects the transactions before maturity, break even point or the Inconsistency The treatment adopted and arguments to support one transaction prejudice arguments in another transaction Multiple transactions fail as a result of a single technical failure The risk that the transaction will not be implemented as required so that it fails on a question of fact Administrative The ongoing administration of the transaction is not correctly recorded in the accounts. or the tax returm elections are not made or there is some operational failure the fiscal authority Publicity conceming the transaction adversely affects standing with shareholders, counterparties, policyholders and other customers 0 2004 KPMG International. KPMG international is a Swiss cooperative of which all KPMG firms are members. KPMG International provides no services to client Each member firm is a separate and independent legal entity and each describes itself as such. All rights reserved

5 Risk management What do we mean by tax risk? The broad answer is that it is the risk that something may go wrong, so that the tax consequences of a transaction or business may not be those expected. However one can be more specific than this. For financial organizations, tax risk can be better understood if it is divided into the general risks that most commercial organizations are likely to face, and the specific risks attached to financial products offered by the industry. These are illustrated in Tables 1 and 2 below. © 2004 KPMG International. KPMG International is a Swiss cooperative of which all KPMG firms are members. KPMG International provides no services to clients. Each member firm is a separate and independent legal entity and each describes itself as such. All rights reserved. Table 1 – General risks Type of risk Compliance Planning Accounting Table 2 – Transaction risks Type of risk Technical Accounting Change of law Inconsistency Concentration Implementation Administrative Reputation Nature of risk The technical basis of the tax treatment is successfully challenged The tax analysis is dependent on an accounting treatment which is not accepted A change of law affects the transactions before maturity, break even point or the required return is met The treatment adopted and arguments to support one transaction prejudice arguments in another transaction Multiple transactions fail as a result of a single technical failure The risk that the transaction will not be implemented as required so that it fails on a question of fact The ongoing administration of the transaction is not correctly recorded in the accounts, or the tax return; elections are not made; or there is some operational failure The transaction or approach significantly prejudices the relationship with the fiscal authority Publicity concerning the transaction adversely affects standing with shareholders, counterparties, policyholders and other customers Nature of risk Technical or factual inaccuracies Miscoding of expenditure Late submission of returns Late payment of tax Poor presentation of tax planning Failure to plan Technical imperfections in planning Excessive aggression in the planning Failure to implement planning correctly Incorrect recognition of tax liability

Finance industry generally risk averse The survey indicates a general aversion to taking on tax risk among the finance community. Nearly one Nearly one half of half of responses indicated that either nothing would be done which provoked the tax authorities in the first responses indicated that place, or alternatively that the organization would not be prepared to defend its tax planning in the courts the organization would not be prepared to defend its (fig 6). Most of the remainder would require the comfort of a strong opinion in support of the tax planning tax planning in in question, with at least a 70 percent chance of success. Only 3 percent would be prepared to accept any the courts degree of reputational risk; such a low percentage is not surprising in an industry with a high public profile Very conservative, nothing will be consciously undertaken which 14% Figure 6: How aggressive might provoke the tax authorities r conservative are Conservative, planning is undertaken subject to rigorous technical organizations’tax review (opinion giving 70-90 percent comfort i. e'should opinion risk strategies? required) and only where reputational risk is entirely absent. 34% The organization would not go to the Courts to defend tax planning immediately above, where 70-90 percent opinions are still required and absence of reputational risk, but the organization would be prepared to defend its planning in the Courts As immediately above, but only 51-70 percent opinions t'mare likely than not opinions) are required As immediately above, but some degree of reputational risk would be acceptable 0%5%10%15%20%25%30%35%40%45%50% Base: All respondents(96 ercentage of respondents The survey did not test the respondents' reaction on every type of risk outlined in the tables above, but it is clear from the different types of risk described that simply to base one's judgment on the likelihood of echnical success would be a very one-dimensional approach and therefore inadequate Breaking down the responses, it is interesting to note that those respondents who had a national responsibility Insurance groups tend to were amongst the ones taking the most conservative line. This may be because they do not feel in a positio show a greater willingness to express a more aggressive view, given the limitation on their role, or because people generally are more to litigate than banks reluctant to take an aggressive line when dealing with their own fiscal authorities than they are when planning for tax internationally. It is also interesting to note that insurance groups tended to show a greater willingness to litigate than the banks (ig 7). Organization would defend its Figure 7: How aggressive planning in the Courts: more likely Banking or conservative are than not opinions are required organizations tax risk Organization would defend its anning in the Courts; should opinions are required and reputational risk Organization would not go to the Courts to defend tax planning 010%20%30%40%50%60%70%80%90%100% Percentage of respondents 2004 KPMG International. KPMG International is a Swiss cooperative of which all KPMG firms are members. KPMG International provides no services to clients Each member firm is a separate and independent legal entity and each descnbes itself as such All rights reserved

6 © 2004 KPMG International. KPMG International is a Swiss cooperative of which all KPMG firms are members. KPMG International provides no services to clients. Each member firm is a separate and independent legal entity and each describes itself as such. All rights reserved. Finance industry generally risk averse The survey indicates a general aversion to taking on tax risk among the finance community. Nearly one half of responses indicated that either nothing would be done which provoked the tax authorities in the first place, or alternatively that the organization would not be prepared to defend its tax planning in the courts (fig 6). Most of the remainder would require the comfort of a strong opinion in support of the tax planning in question, with at least a 70 percent chance of success. Only 3 percent would be prepared to accept any degree of reputational risk; such a low percentage is not surprising in an industry with a high public profile. The survey did not test the respondents’ reaction on every type of risk outlined in the tables above, but it is clear from the different types of risk described that simply to base one’s judgment on the likelihood of technical success would be a very ‘one-dimensional’ approach and therefore inadequate. Breaking down the responses, it is interesting to note that those respondents who had a national responsibility were amongst the ones taking the most conservative line. This may be because they do not feel in a position to express a more aggressive view, given the limitation on their role, or because people generally are more reluctant to take an aggressive line when dealing with their own fiscal authorities than they are when planning for tax internationally. It is also interesting to note that insurance groups tended to show a greater willingness to litigate than the banks (fig 7). Nearly one half of responses indicated that the organization would not be prepared to defend its tax planning in the courts Figure 6: How aggressive or conservative are organizations’ tax risk strategies? Figure 7: How aggressive or conservative are organizations’ tax risk strategies by sector? Insurance groups tend to show a greater willingness to litigate than banks

tat Boards should actively Observation of the industry does suggest that some who profess a very conservative line on taking tax an interest in setting will, in reality, undertake transactions which appear more aggressive. While not tested in the survey ut acceptable parameters for the adoption of observation suggests either a degree of difficulty in judging the level of aggression that a transaction i ax risk. and should or a failure to adhere to the corporate principles laid down In either event, it reaffirms the suggestion made monitor compliance earlier that Boards should actively take an interest in setting out acceptable parameters for the adoption of tax risk, and should monitor compliance Front office more aggressive on risk Many financial institutions, in particular the banks with global coverage, have a front office tax function developing or selling tax-efficient transactions to customers. Another feature of the responses on risk appetite is that those groups with a front office tax function(41 out of the 96 responses)take a more aggressive stance than those without; 58 percent of those without would not go to the courts to defend their position, against Of course it might be natural to anticipate this to some because the front office might be expected to stand behind transactions it is entering into with third parties; however, note that the responses deal with the organization's own position rather than covering any intent to defend the counterparty's position. In the same vein, of those tax departments who get involved in signing off front office transactions, only half claim to consider the counterparty's risk, in addition to their own. Conflicts on sign-off? Many suppose that front office tax functions would always have to liaise with the tax department, either in terms of the design of the financial products they sell, or to obtain a risk sign-off. Sign-off is a good idea because the tax department is normally in a better position to judge the element of compliance risk that the transaction might originate However,it appears(figS)that only 29 of the front office tax functions out of 4l ask Tax to sign-off. typically in the larger institutions. 19 of those 29 tax departments are put in the potentially invidious position of being involved in both the design of the transaction and the sign- off, which clearly gives rise to a potential conflict of interest. One hopes these organizations reduce this conflict by using different personnel for each of the two stages Figure 8: Involvement of the tax department in th design and sign-off of 17 Not involved at all front office transaction Only involved in design 47% 109 Only involved in sign-off Involved in design and sign-off 24% Unknown Base: Respondents with front office tax Also with a view to avoiding conflicts of interest, it is comforting to note that nearly 90 percent of groups with front office functions do not reward their tax staff by reference to the success of their transactions 0 2004 KPMG International. KPMG International is a Swiss cooperative of which all KPMG firms are members. KPMG International provides no services to client Each member firm is a separate and independent legal entity and each describes itself as such. All rights reserved

7 © 2004 KPMG International. KPMG International is a Swiss cooperative of which all KPMG firms are members. KPMG International provides no services to clients. Each member firm is a separate and independent legal entity and each describes itself as such. All rights reserved. Observation of the industry does suggest that some who profess a very conservative line on taking tax risk will, in reality, undertake transactions which appear more aggressive. While not tested in the survey, this observation suggests either a degree of difficulty in judging the level of aggression that a transaction implies, or a failure to adhere to the corporate principles laid down. In either event, it reaffirms the suggestion made earlier that Boards should actively take an interest in setting out acceptable parameters for the adoption of tax risk, and should monitor compliance. Front office more aggressive on risk Many financial institutions, in particular the banks with global coverage, have a front office tax function developing or selling tax-efficient transactions to customers. Another feature of the responses on risk appetite is that those groups with a front office tax function (41 out of the 96 responses) take a more aggressive stance than those without; 58 percent of those ‘without’ would not go to the courts to defend their position, against only 34 percent of those ‘with’. Of course it might be natural to anticipate this to some extent, because the front office might be expected to stand behind transactions it is entering into with third parties; however, note that the responses deal with the organization’s own position rather than covering any intent to defend the counterparty’s position. In the same vein, of those tax departments who get involved in signing off front office transactions, only half claim to consider the counterparty’s risk, in addition to their own. Conflicts on sign-off? Many suppose that front office tax functions would always have to liaise with the tax department, either in terms of the design of the financial products they sell, or to obtain a risk sign-off. Sign-off is a good idea because the tax department is normally in a better position to judge the element of compliance risk that the transaction might originate. However, it appears (fig 8) that only 29 of the front office tax functions out of 41 ask Tax to sign-off – typically in the larger institutions. 19 of those 29 tax departments are put in the potentially invidious position of being involved in both the design of the transaction and the sign-off, which clearly gives rise to a potential conflict of interest. One hopes these organizations reduce this conflict by using different personnel for each of the two stages. Also with a view to avoiding conflicts of interest, it is comforting to note that nearly 90 percent of groups with front office functions do not reward their tax staff by reference to the success of their transactions. Figure 8: Involvement of the tax department in the design and sign-off of ‘front office’ transactions Boards should actively take an interest in setting out acceptable parameters for the adoption of tax risk, and should monitor compliance

It is a feature of front office tax functions that they operate largely outside the control of the mainstream tax Under Sarbanes-Oxley, internal controls, even management. Under the Sarbanes-Oxley Act 2002, many tax directors will be faced with the need to sign-of though a significant on tax internal controls so that their senior management can in turn give the required public assurances; proportion of the overall however,a significant part of the overall tax function will not be under their control. The survey suggests that tax function may not be the front office function is on average only slightly smaller than the ' mainstream'department(10 people in under their control the front office against 15 in the mainstream department ). Add to that another eight people who, on average. deal with tax issues such as personal taxes, sales taxes, and operational taxes from within the finance or Hr functions, and it is clear that the tax director only has direct control over a minority of the average financial Patchy adoption of risk procedures What procedures do financial institutions use to control their tax risks? The survey proposed a series of steps which might be taken to control risks and asked respondents to agree or disagree(fig 9). Typically a review of internal controls will take place in stages: firstly identifying all tax processes, then the risks arising within those processes, and finally the controls applied to manage those risks. The percentages of respondents who had taken the fundamental step of identify ing all their tax processes was relatively high at 67 percent, two in three of all respondents All tax processes have been identified Figure 9: To what extent do or sks arising as a result of those processe tax risks? have been identified 74% Appropriate controls to guard against those risks have been established A post-implementation review is carried out after each major planning exercise 42 Repeat transactions are only carried out after renewed tax opinions are obtained 46% Adequate procedures are in place to document all tax planning which is undertaken 58% The current portfolio of transactions undertaken is regularly reviewed for change of law The current portfolio of transactions undertaken is regularly reviewed for consistency of technical argument 54% he current portfolio of transactions undertaken is regularly eviewed for concentration of risk 56% 0%10%20%30%40%50%60% Base: All respondents (96) Percentage of respondents agreeing with statement An even greater number, 74 percent, claimed to have identified all the risks arising. This suggests that at least A thorough review requires some respondents do not take the view that risks arise from processes and a thorough review requires the the identification of rocesses before identification of processes before any examination of risk. examination of risk Rather fewer, 61 percent, believe that appropriate controls have been established to guard against the relevant risks, indicating that there is still work to be done. This is of course of particular relevance to those organizations which are subject to the provisions of the Sarbanes-Oxley Act, who will need to sign-off on the suitability of their intemal controls, some of them later this year 2004 KPMG International. KPMG International is a Swiss cooperative of which all KPMG firms are members. KPMG International provides no services to clients Each member firm is a separate and independent legal entity and each descnbes itself as such All rights reserved

8 © 2004 KPMG International. KPMG International is a Swiss cooperative of which all KPMG firms are members. KPMG International provides no services to clients. Each member firm is a separate and independent legal entity and each describes itself as such. All rights reserved. It is a feature of front office tax functions that they operate largely outside the control of the mainstream tax department. Only 12 percent fall under the control of the tax director. This is not a surprising finding, because it is largely consistent with observation of the industry, but it does raise interesting questions in terms of risk management. Under the Sarbanes-Oxley Act 2002, many tax directors will be faced with the need to sign-off on tax internal controls so that their senior management can in turn give the required public assurances; however, a significant part of the overall tax function will not be under their control. The survey suggests that the front office function is on average only slightly smaller than the ‘mainstream’ department (10 people in the front office against 15 in the mainstream department). Add to that another eight people who, on average, deal with tax issues such as personal taxes, sales taxes, and operational taxes from within the finance or HR functions, and it is clear that the tax director only has direct control over a minority of the average financial organization’s tax personnel. Patchy adoption of risk procedures What procedures do financial institutions use to control their tax risks? The survey proposed a series of steps which might be taken to control risks and asked respondents to agree or disagree (fig 9). Typically a review of internal controls will take place in stages: firstly identifying all tax processes, then the risks arising within those processes, and finally the controls applied to manage those risks. The percentages of respondents who had taken the fundamental step of identifying all their tax processes was relatively high at 67 percent, two in three of all respondents. An even greater number, 74 percent, claimed to have identified all the risks arising. This suggests that at least some respondents do not take the view that risks arise from processes and a thorough review requires the identification of processes before any examination of risk. Rather fewer, 61 percent, believe that appropriate controls have been established to guard against the relevant risks, indicating that there is still work to be done. This is of course of particular relevance to those organizations which are subject to the provisions of the Sarbanes-Oxley Act, who will need to sign-off on the suitability of their internal controls, some of them later this year. A thorough review requires the identification of processes before any examination of risk Figure 9: To what extent do organizations control tax risks? Under Sarbanes-Oxley, many tax directors will have to sign-off on tax internal controls, even though a significant proportion of the overall tax function may not be under their control