A second Trump administration, a Republican-controlled Senate, and recent actions by Republican lawmakers are likely signs that implementing the OECD’s two-pillar global tax reform plan is about to become much more challenging, observers say.
News of President-elect Trump’s sweeping win in the November 5 election and the Republican Party’s Senate gains and potential control of the House of Representatives come as member jurisdictions of the OECD inclusive framework on base erosion and profit shifting work to finalize pillar 1 and legislate for pillar 2.
Most inclusive framework members — including the United States — agreed to the plan in principle in October 2021. However, the path to implementation has been long and fraught with questions about whether the United States would actually adopt the two pillars.
The Fate of Pillar 1
Pillar 1 consists of two parts. Amount A calls for revising profit allocation and nexus rules, the withdrawal of digital services taxes, and a ban on the future introduction of DSTs. Its implementation requires a multilateral convention (MLC), which must be signed and ratified by a critical mass of jurisdictions, including the United States, before it can take effect.
Tim Power, deputy director for business and international tax at HM Treasury and co-chair of the inclusive framework, confirmed October 30 that the MLC text is complete.
Amount B is a simplified and streamlined approach for applying the arm's-length principle to in-country baseline distribution transactions. Optional amount B rules were published in February. However, negotiations on a mandatory amount B — which U.S. officials have said is a requirement for the United States to join the MLC — are blocking the conclusion of pillar 1.
“The path forward for pillar 1 was always very challenging,” Pat Brown of PwC’s Washington office said, noting the requirements for tax treaty ratification in the Senate. It’s hard to say how much more difficult that path will be because it was always an unlikely proposition, Brown added.
Brown said that if the United States doesn't join the MLC, other countries will impose DSTs — something the United States opposes, saying they unfairly target U.S. companies. However, “it’s not hard to imagine a Trump administration, or Republicans in the Senate saying, ‘Well, those aren't the only two alternatives,’” Brown said. The United States could warn those countries that if they adopt DSTs, the government has options for a retaliatory response, he added.
The first Trump administration wasn’t shy about threatening punitive tariffs on U.S. imports of goods from countries with DSTs. Some countries, including Canada and Italy, have recently introduced new DSTs or proposed expanding their existing measures, prompting renewed calls from U.S. lawmakers and trade groups for the United States to respond.
The second Trump administration “is likely to go after any taxes levied against American companies that it perceives to be discriminatory,” Joseph Boddicker of Alston & Bird’s Washington office said.
“This increased risk of retaliation will force foreign lawmakers to revisit their political calculus, as making up for revenue shortfalls by increasing taxes on U.S. innovators — rather than their own companies — may no longer be expedient,” Boddicker said.
The results of the election have raised questions about whether the inclusive framework should abandon pillar 1. “Pillar 1 has been dead for a while now,” Boddicker said. “By staying the course, the inclusive framework may be setting the stage to deflect blame when pillar 1’s failure becomes more widely acknowledged.”
However, it may be premature to officially declare pillar 1’s demise, according to Brown. Inclusive framework delegates have insisted they are close to finalizing pillar 1 and have put a lot of work into ideas that could be valuable, like amount B, he added.
It’s understood that the MLC text is stabilized in a way that would lead a significant number of inclusive framework members to sign up if it were opened for signature, according to Rick Minor of the U.S. Council for International Business. “We would like to see this ‘stabilized’ text of the MLC released sooner rather than later and expect it can be done without prejudice to any amount B stalemate,” he said.
Certainly, it would be logical for the inclusive framework to finish and present the MLC text and let countries decide how to respond to it, knowing that the treaty is unlikely to get through the Senate, Brown said. That would put countries in a better position to discuss next steps, he said. “Getting it across the finish line can actually help to bring closure to the process, which I think could be helpful for everybody,” he added.
Pillar 2’s Future
The outlook for pillar 2 is different because countries have already started implementing its global minimum tax provisions. But pillar 2 could also run into difficulties under a second Trump presidency.
At the center of pillar 2 are the global anti-base-erosion (GLOBE) rules, which comprise the income inclusion rule and its backup, the undertaxed profits rule. Jurisdictions can also adopt qualified domestic minimum top-up taxes in line with the GLOBE rules.
Under the GLOBE rules, large multinational enterprise groups must identify the jurisdictions in which their operations have effective tax rates under 15 percent. Jurisdictions that enforce the rules can then impose top-up taxes on undertaxed group entities to increase their ETRs to 15 percent.
A qualified domestic minimum top-up tax applies first to undertaxed profits earned within a jurisdiction's borders. The IIR applies second, requiring the ultimate parent entity to pay top-up taxes to its home jurisdiction on any undertaxed profits its foreign subsidiaries earn. If the home jurisdiction doesn’t enforce an IIR, the UTPR would apply. A jurisdiction that enforces a UTPR can make an adjustment, such as the denial of deductions, to ensure a subsidiary operating within its borders pays enough tax if the subsidiary's ETR is below 15 percent.
The IIR and UTPR were inspired by the Tax Cuts and Jobs Act’s global intangible low-taxed income regime and the base erosion and antiabuse tax, respectively. However, both the GILTI regime and the BEAT need amendments to conform to the GLOBE rules. The Biden administration has proposed changes, including applying GILTI rules on a jurisdictional, rather than a global, basis and replacing the BEAT with a UTPR.
A second Trump presidency means that discussions in the inclusive framework about designing permanent safe harbors and protecting the benefits of tax credits like the research credit will become more urgent, according to Brown.
It’s unlikely that the United States will bring GILTI and BEAT in line with the GLOBE rules. However, the Trump administration is not going to accept other countries’ application of their UTPRs to U.S. companies or unfavorable treatment of the research credit, according to Brown. Significant changes will be necessary to accommodate the United States, he said.
Pillar 2 wasn’t intended to force countries to implement minimum taxes that are different from the reasonable measures they have adopted, according to Boddicker. “Accordingly, the Trump administration is unlikely to agree to make any reforms,” he said. “Because modification of the GLOBE rules to accommodate the United States is also unlikely, we’re at a stalemate and retaliation, if necessary, is possible.”
Pushing Back
Republicans on the House Ways and Means Committee have already proposed that the United States flex its tax policy muscles in response to extraterritorial taxes.
In May 2023 Ways and Means Committee Chair Jason Smith, R-Mo., introduced the Defending American Jobs and Investment Act (H.R. 3665), which was cosponsored by all Republican Ways and Means members. The bill targets companies and investors in countries that impose “extraterritorial taxes and discriminatory taxes.” Although the bill does not specifically identify any tax, it is clear that the addition of new section 899 is designed to retaliate against a country collecting the UTPR. The bill would increase rates on investors and corporations in targeted foreign countries by 5 percent each year, up to 20 percent, until the foreign country repeals the extraterritorial and discriminatory tax. Treasury is required to identify targeted taxes.
In July 2023 Ways and Means Committee member Ron Estes, R-Kan., introduced the Unfair Tax Prevention Act (H.R. 4695), which would strengthen the BEAT on foreign-owned entities affiliated with extraterritorial tax regimes.
The bill, which also targets the UTPR, would eliminate the 3 percent base erosion percentage floor and $500 million gross receipts test under the BEAT for foreign-owned entities affiliated with extraterritorial tax regimes. It would also prevent those entities from disregarding some service payments and payments subject to withholding taxes, and would treat 50 percent of the cost of goods sold as a base erosion tax benefit. The bill would accelerate the BEAT rate increase as well.
Generally, the BEAT under section 59A applies to large corporate taxpayers when cross-border, related-party payments exceed 3 percent of total deductions.
Although neither bill moved beyond committee introduction, they have been touted since then by Republicans looking to push back against pillar 2.
Republican lawmakers have even called for withdrawing U.S. financial support for the OECD. In June House Republican appropriators introduced a bill to defund the OECD in fiscal 2025 over objections to the United States' participation in the global tax agreement. The United States provided 18.3 percent of the OECD’s total funding in 2024.
Although the Senate Appropriations Committee in July approved a bill that would fund the United States' OECD dues with bipartisan support, nine Republicans on the Senate Finance Committee lobbied for zeroing out OECD contributions in a letter to Senate Appropriations Committee Chair Patty Murray, D-Wash. The letter states that in originally agreeing to OECD negotiations in 2018, the United States’ main objective was to stop discriminatory and extraterritorial taxation on U.S. businesses, but U.S. interests haven’t been served.
Calls for retaliating against the UTPR could intensify under a second Trump administration, according to Ryan Bowen of Deloitte’s Washington office. However, some of that intensity could die down if the benefits of the research credit are protected under the GLOBE rules. “It certainly doesn't completely solve the problem, but it at least takes that political issue off the table,” he added.
Extending the transitional UTPR safe harbor could also buy some time for the OECD to engage with the incoming administration and find a way forward on the UTPR issue, Bowen said. Under the safe harbor, in-scope MNE groups with an ultimate parent entity based in a jurisdiction with a corporate tax rate of at least 20 percent will not be subject to the UTPR during a transitional period.
Next Steps
The incoming administration should consult with businesses about their positions on pillar 1 and pillar 2 and consider where to focus its efforts, according to Bowen. “There is value to getting feedback from the taxpaying community and getting a sense of how they want to move forward,” he said.
According to Minor, the United States will keep attracting foreign investment because of its resilient economy; political instability and economic weakness in the rest of the world, particularly in Europe; and the expectation that the incoming administration and congressional majorities will be pro business.
“The weakness in Europe may diminish that region’s ability to confront the U.S. on a tax and trade front,” Minor said. “In any case, on the international front, U.S. business continues to want growth-friendly policies across jurisdictions and a Treasury that understands business and will strategically and effectively represent U.S. business interests abroad.”
The incoming administration should prioritize designing a strategy to deal with DSTs, figure out how U.S. international tax rules will coexist with pillar 2, and consider ways to ensure stability in global corporate tax rules, Brown said. “If the administration is able to accomplish all three of those things from a tax perspective, that would be a huge win for the business community, and I think a huge win for the country,” he said.