Tsilly Dagan recently posted this new paper on the limitations of normative tax analysis that constrains itself to the state. Here is the abstract:
Inequality, as well as the scope of the duty of justice to reduce it, has always been a central concern of political justice. Income taxation has been seen as a key tool for redistribution and the state was the arena for discussions of justice. Globalization and the tax competition it fosters among states change the context for the discussion of distributive justice. Given the state’s fading coercive power in taxation and the decreasing power of its citizenry to co-author its collective will due to global competition, we can no longer assume that justice can be realized within the parameters of the state.
International tax policy in an effort to retain justice often opts for cooperation as a vehicle to support distributive justice. But cooperation among states is more than a way for them to promote their aims through bargaining. Rather, it is a way for states to regain legitimacy by sustaining their very ability to ensure the collective action of their citizens and to treat them with equal respect and concern. The traditional discussion in international taxation seems to endorse a statist position — implicitly assuming that when states bargain for a multilateral deal, justice is completely mediated by the agreement of the states.
In contrast, this Article argues that such a multilateral regime intended to provide the state with fundamental legitimacy requires independent justification. Contrary to the conventional statist position, I maintain that cooperating states have a duty to ensure that the constituents of all cooperating states are not treated unjustly because of the agreement. I argue that not only cosmopolitanism but political justice too requires that a justiciable cooperative regime must improve (or at least not worsen) the welfare of the least well-off citizens in all cooperating states. I explain that cooperation alone is no guarantee of improved welfare and that certain transfer payments between rich and poor countries might be required to ensure this.This is an important and provocative paper, highly recommended reading.
Tagged as: globalization governance institutions justice scholarship tax policy
Last fall I via twitter I shouted out two of my students who won the Tax Analysts Student Writing Competition, in the international category:
I posted about the first paper long ago but I inadvertently neglected to post the second. Correcting that oversight, here it is, available at Tax Analysts: A World Tax Court: The Solution to Tax Treaty Arbitration, by Jake Heyka. Here is the brief abstract by TA:Very proud that two of my students @LAWMcGill won this year: @montano_cabezas (2015) and @Heyka14 (2017) https://t.co/XjWV2A66Cj— Allison Christians (@taxpolblog) July 11, 2016
Jake Heyka examines tax treaty arbitration standards while demonstrating that as a matter of fundamental justice, arbitration should be revamped. He proposes the creation of a world tax court.Heyka begins by observing that "[t]he institution of international tax treaty arbitration (ITTA) is hotly debated in international business and tax law. While the process is helpful because it pressures governments to resolve contested tax decisions, opponents have called it 'secret and evil.'"
He then makes the provocative observation that "the use of ITTA ultimately frustrates the resolution of tax disputes and should be supplanted by a world tax court." In support of his proposal, Heyka lays out the history and critique of tax treaty arbitration (including by me) and concludes:
Standardizing ITTA will create some procedural certainty but does not guarantee consistent use of those procedures, allow the public to see whether the process is fair, or establish reliable precedent. As Lindencrona and Mattson suggested over 30 years ago, ITTA should be a stepping stone to what the world ultimately needs: a world tax court.
As radical as it may seem, the idea is not far-fetched. World courts exist in many commercial and noncommercial contexts, and those that deal with money rather than crime are followed by many countries and used quite often. Moreover, state authority is regularly ceded to resolve disputes between commercial parties in arbitration courts such as the Permanent Court of Arbitration in The Hague, the London Court of International Arbitration, and many other arbitration institutes. A world tax court would merely serve as a place to resolve tax disputes in a similar manner while sustaining the public nature of tax law.While I am late to post it, Heyka's article remains timely as the inclusion of arbitration in the recently released MLI is sure to keep the issue front and center in international tax discourse. Congrats Jake, and sorry for the delay in posting your accomplishment.
I'm in Oxford today for the Said Business School's annual summer conference, staying for the academic conference the remainder of the week. Here is today's program; see comments on twitter with #ct21
The need for reform, and current policy proposals
Michael Devereux, Oxford University Centre for Business Taxation
Welcome and introduction
Chair: John Vella, Oxford University Centre for Business Taxation
Michael Graetz, Columbia University and Yale University
The need for reform
Michael Devereux, Oxford University Centre for Business Taxation
Principles for reform
Wolfgang Schön, Max Planck Institute for Tax Law and Public Finance, Munich
Reforms on the current political agenda
Reuven Avi-Yonah, University of Michigan
Valeska Gronert, European Commission
Residual Profit Allocation Proposal
Chair: Wolfgang Schön, Max Planck Institute for Tax Law and Public Finance, Munich
Paul Oosterhuis, Skadden Arps LLP
Michael Keen, International Monetary Fund
Jennifer Blouin, Wharton Business School, University of Pennsylvania
Steve Edge, Slaughter and May
Destination Based Cash Flow Tax Proposal, and developing countries
Chair: Judith Freedman, University of Oxford
Michael Devereux, Oxford University Centre for Business Taxation
Rachel Griffith, Institute for Fiscal Studies and University of Manchester
Malcolm Gammie QC, One Essex Court
Chair: Michael Devereux, Oxford University Centre for Business Taxation (Chair)
Ian Brimicombe, AstraZeneca Plc
Alex Cobham, Tax Justice Network
Michael Graetz, Columbia University and Yale University
Rt Hon Dame Margaret Hodge MBE MP, House of Commons
Vanessa Houlder, Financial Times
John Kay, Financial Times
Tagged as: conference corporate tax tax policy
Next week, I will be participating in a workshop at Tilburg University in the Netherlands on the topic of International Tax Governance, a timely topic especially given the recent developments in the coordination of the international organizations, the expansion of the OECD's global forum idea to monitor BEPS, the impact of the state aid cases within and beyond Europe, and the increasing role of NGOs in shaping international tax policy. Here is the program:
|10:00- 10:30||Welcome and registration|
|Cees Peters (Tilburg University): International Tax Governance in Action|
|11:00- 12:30||Session 1 - Transparency|
|Edwin Visser (PwC): reaction of MNC's to transparency pressure: CbCR and CSR discussion (30 minutes + 15 minutes discussion)|
|Maaike van Diepen (Tax Justice Network): The perspective of an NGO (30 minutes + 15 minutes discussion)|
|12:30- 13:30||Lunch break|
|13:30- 15:00||Session 2 - EU State Aid|
|Allison Christians (McGill University): a US perspective - the reaction of the US government and US MNC's|
|Anna Gunn (Leiden University): an EU perspective - the reaction of the EU Member States and EU MNC's|
|15:30- 17:00||Session 3 - Compliance of states with new norms of international taxation|
|Carla De Pietro (Tilburg University and University of Bologna): Implementation of the OECD BEPS measures (Action 6) in the light of the relationship between international and EU law.|
Tagged as: conference governance institutions international law tax policy
I've talked to a few journalists and commented a bit on the Panama Papers (e.g. here at 6:09 and here) but I've refrained from writing much to date because I am uneasy about a couple of central themes in this story: first, the constant confluence of tax evasion and tax avoidance, which are two completely different phenomena that require two very different responses in my view, and second the bashing of Panama as if only bad things can be done there, so anyone who does anything there from anywhere else must be doing a bad thing.
I am uneasy about this bashing because, although I think there are bad guys doing bad things in Panama, I also think there are bad guys doing bad things all over the world and I don't like Panama being singled out; I am also wary of suggesting that in a world of global trade and investment flows, anything and everything done through or with Panama must eternally be tinged with a sense of wrongdoing. This sense seems to imbue the imagination in the campaigns to "shut down the tax havens." What, exactly, does that mean? Does it mean that some countries, because someone decides they are mostly bad actors, must be effectively cut off from the global financial system and no one must be allowed to transact with or in these countries from the outside? What if most of the world are actually bad actors, each scheming to use its tax system to undermine and undercut the others? That's essentially the vision drawn by the OECD in countering BEPS, so we will run into some problems if we take this reasoning to its logical conclusion. But if this is not the idea behind shutting down tax havens, then what is envisioned, exactly?
Tax justice advocates seem to envision an invasive global regulatory regime in which every person in the world will have all of their assets and financial information catalogued and tagged and made public to everyone else, in order to make sure no one can break any tax rules. If this is being done just for tax--that is, if this is what it takes to make the income tax "work," I am not sure that the income tax is worth all of that trouble and everything given up to achieve it. That includes privacy, which appears to itself have become a suspicious word in certain circles, as if only those doing bad things have a desire to keep anything about their lives private. Let us recall Glenn Greenwald's words on why privacy should not come to be seen as a sinister desire. It is possible to break the tax law like it is possible to break any other law. But is requiring everyone to show all of their assets to everyone else in order to prove no laws have been broken a valid response to this enduring problem? I cannot agree with this Orwellian vision of the world. I also do not think this view is sensible if the issue is really driven by tax. If it is, then surely we can find a less invasive way to fund public goods and services.
This brings me to the evasion/avoidance point, which I find being abused just as much by lawmakers and policy advocates as it is by journalists who don't know any better.
Tax evasion is a crime that involves hiding things from a legal authority. Tax avoidance is not a crime that involves hiding: it is achieved in full view of the legal authorities. The former is a very very difficult problem but is not primarily a tax policy problem. Instead it is primarily a global financial system problem that is created, like most global financial system problems, by virtue of the difficulty of regulating behaviours in a world in which technology has moved us far beyond the frontiers of the nation state.
On the other hand, 'aggressive" tax avoidance (loosely speaking; more analysis here)--that is, avoidance not intentionally allowed by rules such as those to defer tax on retirement savings--is a tax policy issue. Taxpayers and their advisers are always going to cook up new schemes to get around inconvenient tax rules. Knowing this, regulators must decide whether and how to react. They may react with any number of tools that create an infinite call and response loop among regulators, taxpayers, administrators, and judges. These include such things as general and specific anti-avoidance rules, uncertain tax position disclosure, and random audit strategies. None of these things has the first thing to say about how to deal with a corrupt government official who steals money from the public fisc and invests it in US and European stocks and bonds through a maze of trusts and companies formed in other jurisdictions. It's just a totally different problem.
I know and understand that bad guys are always lurking around to defeat the tax law, as they are in any regulatory field. I don't have any special insights about how to deal with corruption and criminality. But in my experience with tax, when a government moves to "crack down" on bad guys, the really serious criminals--including government officials themselves--all too often escape while everyone else finds themselves increasingly tracked, surveilled, and treated like criminals even as the resources to cope with fixable tax policy flaws diminish. I don't have any answers for these worries.
Tagged as: evasion governance offshore tax policy
As observers of global tax policy know, international tax issues are dealt with in bilateral treaties that more or less adhere to a 'model' tax treaty developed and periodically updated by the OECD (provisions in a rival UN Model are occasionally invoked, and the US has its own model with its own distinctions and idiosyncrasies). There are those who have long lamented the problem of having thousands of bilateral agreements that can't be easily or quickly updated when the OECD revises the model (thus curbing the impact of OECD soft law).
As part of the base erosion and profit shifting (BEPS) initiative, the OECD is currently developing a
"Multilateral instrument on tax treaty measures to tackle BEPS" which would be used to 'modify' all existing tax treaties in force among signatory countries. The OECD says this mechanism (which it calls an 'innovative approach') 'would preserve the bilateral nature of tax treaties' even as it modified all existing bilateral treaties 'in a synchronized way'. The OECD says there are "limited precedents" for modifying bilateral treaties with a multilateral instrument.
But are there really any precedents at all? I couldn't think of any off-hand. A quick check with a few international law colleagues yielded few comparators. Tim Meyer suggested the EU harmonizing efforts on Bilateral Investment Treaties (BITs) as a candidate, albeit noting that this does not contemplate directly overriding existing BITs but requires EU members to change their bilateral arrangements to conform with EU investment policy.
Tim also made the interesting observation that"treaties that reference customary international law standards, such as BITs’ reference to the minimum standard of treatment" could be overridden in a somewhat similar fashion. He explained that "[i]f custom changed, such as through the promulgation of soft law documents or multilateral treaties, it would change the BITs that incorporate the customary standard. That isn’t exactly the same thing [as the new OECD multilateral instrument], but similar."
The OECD's work in developing "global consensus" has in the past led some to describe OECD standards as "soft law" and others to suggest that the OECD may be understood to articulate customary international tax law; moreover the OECD has itself now taken to describing its model as soft law (including in its 2014 report on the multilateral instrument). I have urged caution in defining OECD proclamations as soft law or customary law given the OECD's exclusive membership of mainly rich countries, which excludes all of the BRICs and most of the rest of the world, as I think the nomenclature lends an imprimatur of legitimacy to OECD proclamations that may not be deserved. But it seems clear that the BEPS action items, and the new global forum to "monitor compliance" with them, are intended to overcome the exclusivity problem while endowing OECD norms with ever-greater law-like effect (without offending the unicorn that is "tax sovereignty").
It seems likely to me that a multilateral agreement that modifies existing tax treaties is actually intended to ultimately replace those treaties, making small and incremental modifications until the underlying bilateral treaties become superfluous or extinct. Accordingly I view the OECD's multilateral 'modification' function to be an exercise in creeping harmonization as well as "ossification" (or maybe transformation) of soft law into hard law.
Adding together the other elements of BEPS, including the new global forum to compel national compliance with 'minimum standards' as they develop, I recently suggested that the OECD's tax folks are giving birth to a new global tax order complete with rules, audits, and reform processes. This is perhaps not the order envisioned by those who have in the past called for global tax coordination in a supranational body for the sake of pursuing global tax justice. If the OECD-based regime is not fully supranational yet, it is close, and it looks increasingly inevitable once it sets a multilateral agreement in place.
There are many fascinating threads of soft law and public international law are at work in these developments. I recently came across an article by Jung-Hong Kim on the topic, entitled A New Age of Multilateralism in International Taxation?, abstract:
With the OECD/G20 BEPS project, the current international tax landscape is facing challenges and changes unprecedented for the past several decades. This paper looks at the development of bilateralism and multilateralism in the current international tax regime, takes stock of the BEPS works and analyzes the proposed Multilateral Instrument. Then, the paper discusses the emerging multilateral tax order in international taxation.
Historically, bilateralism has been the constant trend of tax treaties, and later multilateral tax treaties have emerged in some regional areas. There being some deficiencies with bilateral treaties such as dilapidation, delay in entry into force and vulnerability to treaty shopping, the experience of multilateral tax treaties can help build a foundation for future development of a multilateral tax treaty to complement the bilateral tax treaty network.
With a caveat that BEPS output is fluid at this stage, drawing on the various examples of existing non-tax multilateral treaties, the Multilateral Instrument will be a desirable and feasible tool to reflect the necessary changes resulting from BEPS project. For Korea whose tax treaties need a systematic upgrade after a noticeable growth in quantity, the negotiation on the Multilateral Instrument of the BEPS project will be a great opportunity to revisit the existing bilateral tax treaties and to make appropriate amendments with bilateral treaty partners in multilateral format.
Beyond BEPS, supposing that the work on the Multilateral Instrument results in a multilateral convention, the inevitable question is the emergence of a multilateral tax order. In terms of feasibility of such a multilateral tax order, there are both positive and negative sides. The positive side is that the relative success of Global Forum on Tax Transparency can be a guidance on the post-BEPS multilateral tax order. On the other hand, the phenomenon of diminishing multilateral trade regime and bilateral investment treaty regime seem to be a negative evidence. Another point to consider is the appropriate forum to manage the multilateral tax order. For this, there are two competing organizations, i.e., the OECD CFA and UN tax committee, each of which having some limit to be developed into an intergovernmental forum.
After all, the essential question will be how those major players such as the U.S., EU, China, India etc. could build a consensus by compromising on the institutional and substantive aspects of the multilateral tax order. For now, for the emerging multilateral tax order to proceed on a sound basis, the work of the BEPS project should bear substantive and meaningful fruits.
I have a few thoughts on this and I really look forward to seeing the results of the competition.Oxfam and the Tax Justice Network are joining together to launch a tax justice and human rights essay competition for legal students and professionals. With tax justice rising up the human rights agenda, we want to hear your ideas on how human rights law can be used in the fight against tax dodging.
Tax justice is a human rights issueInternational tax dodging by multinational corporations and wealthy elites costs countries both rich and poor billions of dollars a year in lost revenues. This is undermining vital public services where they are most needed and further driving inequality at a time when the richest 62 people in the world have as much wealth as half the world's population. Overall, substantial damage is done to human rights through the use of tax havens, the opacity of corporate accounting, the manipulation of trade prices and the disguising of beneficial ownership. But national and international fora may provide scope for redress.
What we wantWe're inviting 3,500-word complaints to identify the plaintiffs, defendants, remedies sought, and arguments that are considered enforceable in an existing legal forum. We seek complaints that could form the basis of effective advice to developing countries, or to groups of citizens in countries at any income level who have suffered, and want to know how they could best use law to protect their or their people's human rights in the face of tax injustice.
Tagged as: justice scholarship Tax law tax policy
The Spiegel Sohmer Tax Policy Colloquium at McGill University continues today with a presentation by Richard Murphy of Tax Research LLP and the Tax Justice Network, on the Fair Tax Mark. This event is presented in conjunction with a collaborative project between the Stikeman Chair in Taxation and the Centre for Intellectual Property Policy at McGill Law on the topic of how regulation impacts innovation.
The Fair Tax Mark is a self-regulation project that seeks to intervene in the ongoing relationship between corporations, society, and the state. Like other certifications such as Fair Trade, the Fair Tax Mark is a voluntary program intended to project an image of openness, honesty and trustworthiness in tax matters to consumers and investors. The Mark is about paying taxes, but it is also about dramatically increasing transparency about how multinationals undertake tax planning as a business strategy. This places the payment of tax and the attendant planning and scheming squarely within the realm of corporate social responsibility. The Mark suggests that demonstrating some level of compliance with NGO expectations about global tax justice is becoming a cost of doing business, thus comprising a (or contributing to an existing) social license to operate.
This year's colloquium focuses on the fundamentals of corporate tax policy by critically examining issues in national and international tax policy; more information about the colloquium here. Today's talk will take place from 14:30-17:30pm in Room 202 of New Chancellor Day Hall, 3644 Peel Ave, Montreal. Students, faculty and the McGill community in Montreal are welcome to attend.
Tagged as: activism colloquium corporate tax CSR governance McGill tax culture Tax law
The Global Justice Program at Yale University is currently hosting a conference exploring the post-2015 agenda for human rights and global justice. List of speakers and topics:
Day One: October 30
Panel 1: Global Tax Fairness: Allison Christians, Manuel Montes, Erika Siu; Chair: Zorka Milin)
Amartya Sen Prize Contest Ceremony
Panel 2: Illicit financial flows, human rights and the post-2015 agenda - Discussion of Independent Expert’s Report: Juan Pablo Bohoslavsky, Nicholas Lusiani, Léonce Ndikumana, Esther Shubert; Chair: Tom Cardamon
Panel 3: Addis, Post-2015, and future efforts against Illicit Financial Flows: Tom Cardamone, Steven Dean, Gail Hurley and Jakob Schwab; Chair: Laura Biron
Day Two: October 31
Statement of the Health Impact Fund (HIF) and mini-HIF, including discussion: Aidan Hollis, Thomas Pogge; Chair: Alex Sayegh
Panel 4: Mini-HIF: Piloting the Health Impact Fund: Laura Biron, Aidan Hollis, Peter Maybarduk, Thomas Pogge, Jeffrey Sachs, Richard Wilder; Chair: Tendayi Bloom
Concluding Session on the Health Impact Fund
Panel 5: Individual Deprivation Measure, Poverty Measurement: Sharon Bessell, Thomas Pogge, Scott Wisor; Chair: Yuan Yuan.
Day Three: November 1
Panel 6: Oslo Principles on Climate Change Obligations: Thomas Pogge, Jaap Spier, Kira Vinke; Chair: Shmulik Nili
Panel 7: Sustainable Development Goals (Daniel Esty, Thomas Pogge, Jeffrey Sachs; Chair: Corinna Mieth.I presented yesterday on the topic of "Global Tax Fairness." I discussed the connection between taxation and human rights, highlighting the challenges for the realization of rights and justice that are posed by tax competition and exploring whether and how systemic change is possible. I have a couple of works in progress on the topic and will post drafts when ready.
In the meantime, I'm experimenting with making my powerpoint presentations available online (along with other resources in the future). You can view a list here: see pull down menu entitled "resources". Comments and suggestions are welcome.
Tagged as: conference human rights justice tax policy
McGill Law's annual Speigel Sohmer Tax Policy Colloquium kicks off today with a presentation by Roseanne Altshuler on the viability of a switch from worldwide to territorial corporate taxation in the United States. This year's colloquium will focus on the fundamentals of corporate tax policy by critically examining issues in national and international tax policy. Today's talk will take place from 14:30-17:30pm in Room 202 of New Chancellor Day Hall, 3644 Peel Ave, Montreal. Students, faculty and the McGill community in Montreal are welcome to attend.
Here is the colloquium line-up for the fall:
Monday, September 28: Rosanne Altshuler
Monday, October 5: Steven Dean
Monday, November 2: Richard Murphy
Tuesday, November 10: Daniel N. Shaviro
Monday, November 23: Kim Brooks
Monday, November 30: Albert Baker
The Spiegel Sohmer Tax Policy Colloquium has been made possible by a generous grant from the law firm Spiegel Sohmer, Inc., Montreal, for the purpose of fostering an academic community in which learning and scholarship may flourish. I am delighted to welcome these distinguished guests and look forward to today's discussion.