Modern Day Robin Hood? Taxpayers as Facilitators of State Level Tax Games

In an interesting twist on contemporary debates about tax planning by multinational companies, Prof. Leandra Lederman recently posted a very interesting column about how one government seems to have benefited from some clever tax planning at the expense of its own national government, with the help of a multinational company that appears to have received nothing for its trouble.

This is the strange case of Volkswagen's tax structuring involving the Spanish provinces of Navarre and Catalonia. What is strange is that, in this particular instance, Volkswagen's structure appears to have created no tax benefit for itself, but resulted in the province of Navarre effectively transferring itself a large pot of revenue from the national coffers.

Prof. Lederman's post explains that Navarre is an "autonomous community", which, unlike Catalonia, independently administers the VAT, and therefore only issues VAT refunds when products are exported from Navarre to a buyer located outside of Spain. (Most of Spain's other provinces have a harmonized VAT system administered at the national level). If products are sold to a buyer outside of Navarre but still in Spain, such as Catalonia, Navarre does not issue a refund because there has been no export. But if the purchasing company in that other province then sells to a subsequent buyer outside of Spain, the Spanish Treasury issues a refund to the company and voilà, Navarre has transferred itself a windfall in the amount of tax it collected and Spain paid back.

Over a period of several years, Navarre reportedly collected approximately 1.5 billion Euros from the Spanish government using Volkswagen in this manner. By routing its export sales through an intermediary in Catalonia rather than directly from Navarre, Volkswagen acted as a conduit to route revenues from the state to the province. Given its own indifference to who, as between Navarre and Spain, refunds the VAT on its exports, using an intermediary in Catalonia appears like an act of pure generosity to the province of Navarre. Prof. Lederman goes through the case that brought this issue to attention and queries: what's in it for Volkswagen? She notes that nothing in the public record suggests that VW received anything in return—"it simply did Navarre a favor." That seems unlikely; certainly, as Lederman points out, Navarre would be capable of having made some other concessions. These would not necessarily be made public.

Absent concessions, is this a modern day Robin Hood story, with VW effectively taking from the state to give to the province? Navarre is not quite at the bottom of Spain's provinces economically (at least according to wikipedia) but neither is it near the top spot in terms of gross regional product (it is, however, near the top in terms of purchasing power parity, as well as in other factors such as employment rates). Should we cheer or disparage the tax trickery that resulted in an ongoing transfer of wealth from Spain to Navarre?

Also curious is why Spain wouldn't have anticipated this problem far in advance of this situation arising. It seems that the government proposes to resolve the issue by renegotiating the Convenio Económico Navarra-Estado (Navarra-State Economic Agreement), which governs the VAT administration among other matters. I am no VAT expert but it seems to me that having designed a destination based VAT system and having agreed to independent administration of that system by one or more of its provinces, the state might have immediately recognized that revenue transfers from itself to the non-harmonized province(s) would be likely unless there was some mechanism requiring the VAT-collecting province to be the VAT-refunding province in the case of ultimate exports.

Like Prof. Lederman, I would be curious to know whether this sort of situation has arisen in other contexts--do sub-national governments routinely look for ways to transfer state revenues to themselves using taxpayers as conduits? Should we liken the province's passively benefiting from a system not solely of its own making as acceptable tax planning or harmful tax competition? Likewise, should we view the taxpayer's willingness to facilitate the transfer (for apparently no reason but its good nature and general willingness to cooperate) as a victory or a failing in the taxpayer-state relationship?

Gribnau & Vording on The Birth of Tax Law as an Academic Discipline

Hans Gribnau and Henk Vording recently posted an interesting paper on SSRN. Here is the introduction:

The academic discipline of tax law as we know it today has its roots in the late nineteenth century. In the Netherlands, it emerged out of a confrontation between (predominantly British) classical political economy and German Staatslehre (theory of the state). This contribution analyses the impact of the relevant ideas on Dutch theorizing about taxes. It is argued that tax law as a legal discipline is heavily indebted to the German tradition. This may help to explain why it has proven difficult to develop meaningful communication between tax lawyers and tax economists.  

The paper focuses on the development of tax doctrine in the Netherlands over the nineteenth century, but the paper's thoughtful analysis of the evolution of tax goals and priorities, the conceptualization of the taxpayer-state relationship, the complex interaction on tax policy of political and economic theory, and the impact of rule of law theory on tax policy are of general interest.

Rocha on Balancing Rights and Power between State and Taxpayer

Sergio André Rocha recently posted a discussion on information, transparency, and the rights of taxpayer versus those of states, of interest. He argues that hard-fought rights needed to balance the unequal power between state and individual are being abandoned in the populist rush to protect the state against multinational tax dodging. Central to this argument is the claim that states are not hapless victims of ruthless tax managers and CEOs, rather they are the very architects of the system. He worries, I think, that suspending taxpayer rights to get at the big bad corporations will ultimately result in suspending rights for individuals, setting up the conditions for states to abuse their power. Here are a few excerpts (footnotes omitted):

There is no doubt that taxation is one of the areas where the balance between the legitimate exercise of Government power and the illegitimate violation of citizens’ rights is most challenging. 

...The transformation of the majority of modern States into Fiscal States – i.e., States that depend on tax collection to obtain the resources to fund all its activities – has changed the nature of the obligation to pay taxes. Some authors have begun to argue that there is a fundamental or constitutional obligation to pay taxes.

However, this line of thought, to which we subscribe, has been used to support an inversion of the whole structure of tax systems. Legal principles that are, at their core, protections of taxpayers against the State have been transformed into protections for the State against taxpayers. 

Let’s consider, for instance, the principle of transparency, which is at the center of modern constitutional, administrative, financial, and tax law. It is, first and foremost, a protection for the citizens against the State, establishing as a goal a state of affairs that guarantees full disclosure of a government’s actions to its citizens. 

The principle of transparency is not a one-way street. It also applies to citizens, requiring disclosure and combating opaque situations that prevent the due application of laws in general. Nevertheless, one should not forget: State and Government transparency come first. 

This maxim seems to have been forgotten by those now in charge of reshaping the international tax regime. 

...[OECD Director Pascal Saint-Amans recently] stated that, "Transparency, from my perspective, is transparency from the taxpayer to the Tax Administration, and maybe the other way around as well. ..."  

We should make no mistake: once legal principles have been mutilated and taxpayers’ rights overturned, effects will be felt by all taxpayers – individuals and legal entities alike. 

...Both the Global Forum’s and BEPS’ work share a common feature: they are aimed at optimizing States’ tax collection. The taxpayer – the citizen – is not in their focus. This is unacceptable. There is nothing more urgent than recovering the protagonist role of the taxpayer in taxation, where he rightfully belongs. This does not mean that their focus is completely misguided. It means that they need to find a way to achieve their rightful objectives without leaving taxpayers’ rights behind.

More at the link above; worth the read.

Tax Cooperation and Competition Conference tomorrow in Montreal

Tax Coop Montreal will be taking place tomorrow at the Musee des Beaux Arts in Montreal. It promises to be an action-packed day. Here is the conference program:

8:30-9:00 Welcome and Registration
9:00 - 09:10 Opening Remarks
9:10 - 10:15 COMPETITION AND TAXATION: A LOOK AT THE LANDSCAPE: Katharina Becker,  Allison Christians,  Peter Dietsch and Lyne Latulippe
10:15 - 10:40 TAX COMPETITION AMID ASYMMETRICAL INFORMATION: Elise J. Bean
10:40 Break11:00 - 11:40 COMPETING WHEN YOUR COMPETITORS DON’T PAY TAX. INSIDERS’ VIEW: Steven Adams,  Tasso Lagios and Natalie St-Pierre
11:40 - 12:30 FROM GLOBAL TO LOCAL TAX COMPETITION: WHEN TAX COMPETITION HITS CLOSE TO HOME: Governor Sam Brownback,  Blanca Moreno-Dodson and Paul Waldie
12:30 Lunch14:00 - 14:35 THE OECD’S BEPS PROJECT UPDATE: Pascal Saint-Amans
14:35 - 15:10  IT’S LEGAL, BUT IS IT MORAL? TAX MORALITY AND ITS LIMITS: Brian J. Arnold,  Alison Holder and Jean-Pierre Vidal
15:10 - 16:00 OPINION LEADERS WHO HAVE MADE A DIFFERENCE: Brigitte Alepin,  Margaret Hodge and Lee Sheppard
16:00 Break16:30 - 17:45 CORPORATE TAX ON TRIAL: Dan Mitchell and Richard Murphy go head to head: Moderated by  Louise Otis and Jay K. Rosengard.
17:45 - 20:00 Closing Cocktail: Toward Tax Coop 2016

Today at McGill Law: Richard Murphy on the Fair Tax Mark

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.

New government in Canada; new fiscal policy

Canada's federal election unfolded last night with a decisive victory for the Liberal Party under the leadership of Justin Trudeau. Campaign promises include a much needed commitment to transparency, including budgetary "honesty" as outlined in the party's Fiscal Plan. Here are the main promises:

• cancel child benefit cheques for millionaires, increase child benefits for the middle class & below 
• increase the marginal tax rate on Canada’s 1%, cut taxes for the middle class
• review tax expenditures, target tax loopholes that particularly benefit Canada’s 1%. 
• be honest about the government of Canada’s fiscal position, base projections on Parliamentary Budget Officer report. 
• run modest deficits for three years, invest in growth for the middle class.
• offer a plan to balance the budget in 2019.

Here's the revenue picture: 

 

Hmm, I am not seeing any revenue from legalizing & taxing marjuana, suggest Canada take a page from Colorado on this point. I predict the revenue impact will be more than zero.

Will be fascinating to watch how the promises play out IRL.

How does the Uber economy work?

The San Franscisco Chronicle ran a story yesterday entitled Here’s why Uber and Lyft send drivers such confusing tax forms in which they discuss the tax-related oddities surrounding Uber-type arrangements. In brief, these companies send drivers various forms, showing various unexpected amounts, and many drivers are terribly confused about what is going on. What's going on is that Uber and Lyft and so on are probably engaged in an elaborate dodge of both tax and labour/employment regimes.

I think it is fascinating that new economy firms are actually returning us to an old economy model, in which everyone is an artisan hunting for a daily paycheck. Planet Money had a story on the first employee recently that draws the picture, worth a listen.

If Uber drivers are employees, then a whole host of tax and other regulations apply. If they are independent contractors, then some different rules apply. But what if they are neither, and Uber is simply a rider/driver matchmaker and payment facilitator? This is a service that can be provided from anywhere in the world, and perhaps even makes the most sense from an international finance center. The international tax implications are intriguing.  More to come on this subject.

SCC says the Income Tax Act is not so bad that it's void for vagueness; your results may vary

I write on occasion about tax protestors and their persistent tilting at windmills to defeat the income tax. I find them fascinating and a reminder that income taxation is a really difficult tax to administer. Taxpayers will do everything they can to avoid it, justifying their actions in myriad ways. A major difference between the tax protestors (who usually represent themselves) and tax planners (whose business it is to represent others) is that the latter are well-trained and sophisticated. When tax planners make ridiculous arguments about the applicability of income tax, they typically do so in highly technical and targeted ways, and they can sometimes confuse administrators and courts into believing them. Not generally so with protestors. My student Marc Roy points me to a recently decided Canadian Federal Court of Appeal decision of interest: Brown v. Canada.  Marc describes the case as follows:

The Federal Court of Appeal decided against a novel argument presented by self-represented taxpayer whose business losses the CRA had denied. In his appeal, Ian Brown raised, along with a more technical argument, an argument that the entire Income Tax Act is void as a constitutional matter “due to vague and convoluted interpretations in the [Act].”

His argument was essentially that the definitions in s. 248(1) of “business,” “employee,” “employment,” “person,” and “taxpayer,” are incomplete and render the Act unconstitutionally vague. These are inclusive definitions, a non-exhaustive style frequently used to define terms in the Act, which leaves room for the defined words to encompass things not explicitly contemplated in the statutory definition.

Unsurprisingly, the Court rejected Mr. Brown’s challenge to these terms and to the act as a whole, walking quickly through the approach to vagueness — a law is only unconstitutionally vague if it is so imprecise that it fails to provide sufficient guidance to legal debate. The court indicated that even if these terms were entirely undefined, there is sufficient meaning that their precise definitions could be, and beyond their inclusive definitions are, judicially determined according to their ordinary meanings in accordance with standard approaches to statutory interpretation.

This case nonetheless raises the question of access to justice for individual taxpayers. It is not unfair to note that the Income Tax Act and its interpretations are at times incredibly convoluted, and it may be impossible for an individual without legal training to accurately and confidently determine her tax liability without costly advice from tax professionals. As in criminal law, in tax ignorance of the law is no excuse — but ordinary persons’ meaningful access to this knowledge is increasingly illusory.

Thanks to Marc, for this succinct summary.

In Slovakia, Real Lottery Prize Goes to Tax Man

This is a novel idea, at least, new to me:

Over the last 10 years, Slovakia’s revenue from value-added taxes, a type of sales tax, has declined. But hiring auditors and pursuing individual merchants and service providers in court is expensive and slow. So last fall, the government decided to put a lottery in the mix.

The idea is to enlist average citizens to collect receipts from their purchases and register them with the government, creating a paper trail for transactions and forcing restaurant and shop owners to pay the sales taxes they owe. As Slovakians register their receipts for the lottery, a computer will also tell them if a merchant has issued a receipt with a fake tax identification number, so they can report suspected fraud. 

For any purchase worth more than 1 euro, or about $1.38, Slovakians can enter their receipts in a monthly lottery to win €10,000, a car or a chance to be a contestant on the Slovakian version of “The Price Is Right.” 

Tax officials say the lottery is already having a big impact, and other European countries that are also struggling with the collection of value-added taxes have considered it — including Portugal, which started its own tax lottery on Thursday. In Slovakia, about 450,000 people have taken part, registering about 60 million receipts, officials said. 

As we well know, third party reporting is an excellent way to induce honesty in taxpayers. Winning a lottery is a long shot but its very existence promotes a certain culture to develop around the reporting of taxable sales. And the winners make for good tv.

From the NYT: Lessons for International Tax from Oregon's Role as Sales/Use Tax Haven

Today's NYT has an article entitled "Buyers Find Tax Break on Art: Let it Hang Awhile in Oregon." The artful dodge is accomplished via simple arbitrage between a source, an intermediary, and a residence jurisdiction, so the story gives a nice illustration of a phenomenon we see play out on the international stage every day, only we have generally been taught to associate tax avoidance arbitrage with the likes of GE, Google, Apple, etc. Here is the simple pattern:

1. The collector lives in state A (the residence state)--in this example, California. 
2. The collector buys an expensive work of art in state B (the source state), in this case, New York. As the source state, state B could extract a tax purely on the occurrence of the sale, but chooses not to, rather basing its sales tax on place of use. 
3. State A generally imposes use taxes on items purchased from outside the state and brought into the state (this is to treat external sales the same as internal ones, which would be subject to sales taxes). But there is an exception: if an item is "used" in another state first, it is not subject to the use tax when it finally makes its way to state A.
4. To avoid the use tax, the collector can't keep the item in state B because then state B's sales tax will apply.
5. In comes state C, with no sales or use tax, in this case, Oregon. State C is a safe haven. Collector parks the asset in state C long enough to satisfy the residence state's exemption. 
6. Hey presto, neither sales nor use tax. 

Nothing illegal has occurred, as the NYT is very quick to point out. But it is also clear that this is a story for a reason, and the reason suggested by the headline is this outcome produces unfairness. 

After all, these are rich people dodging around helpless tax states with the help of sophisticated tax planners. This seems worth examining further given the parallels to corporate social responsibility and international tax planning à la Caterpillar as we have seen recently in the news, and in light of the actions of some states to try to curb international tax planning ... and please do not let it escape notice that this list includes Oregon. 

Let's identify a few problems and a few solutions in the overall tax regime created by the conflicting rules in the three independent states as suggested above. The problems seem to be:

1. residents of state A will likely object that it is not fair for state A to tax sales occurring in the state and not sales occurring outside the state (violates horizontal equity).
2. some residents of state A will likely object that it is not smart to tax sales occurring in the state and not sales occurring outside the state (people will react accordingly and the sales tax base will disappear). 
3. on the other hand, some residents of state A will argue it is smart to do this because it means more people will buy nice things and ultimately bring them into the state C, causing other spillover benefits in the long run. (If so we should question why state A has a use tax at all.)
4. state A cannot control either state B or state C but unless strict capital or other regulatory controls are applied against state A's population, state A's rules necessarily interact with B and C.
5. residents of state B might object that it is not fair for state B to tax sales only if the assets purchased stay in the state and not if they leave the state (violates horizontal equity)
6. on the other hand residents of state B will likely view it as smart for state B to tax sales only if the assets purchased stay in the state and not if they leave the state, because then more sales will occur in state B and with those sales come jobs and other spillover benefits.
7. state C just doesn't tax these things and so would seem to be neutral, acting without fault in the arbitrage.
8. state C residents likely view this neutrality as smart because the state benefits by facilitating the arbitrage between states A and B, and it can be expected to defend this benefit.
9. but what is smart for either states B or C or both creates an unqualifiedly unfair situation in state A.

So much for the problems. Are there solutions?  Again the illustration is enlightening.

1. A, B, and C could get together and demand a federal regulation to stop the arbitrage amongst the states. They could, but they won't (cooperation fails).
2. State A could threaten states B and C to stop facilitating the arbitrage or else (coercion). But what, exactly, does state A want? Does it want to force state B to tax on the basis of source? Does it want state C to tax as the conduit? Either of those would produce fairness in that the individuals would pay tax somewhere, but in neither case would it be state A collecting the tax. Also, depending on state C's political, economic, and social power relative to state A, the strategy could yield results, or not; certainly if harsh tactics are used, state A will be resented by its neighbors, and for what? No revenue, but a globally fairer system that neither B nor C wanted.
3. State A could change its own law to repeal the first use rule, which would eliminate the benefit of the arbitrage. No more icing on the cake per the collector routing through Oregon. (when people say tax planning is icing on the cake as the person did in this article, I picture a tiny cake with a tower of icing. So much icing that by the time you eat it all, there isn't any room for cake. But I digress.)

Now does it not seem that state A has the most power to fix the situation if it chooses to change its own law to nullify the arbitrage? Is this not what Oregon and other states are doing vis à vis the foreign earnings of state-registered companies?

This is what I am talking about when I say that tax avoidance is as much a supply side as a demand side problem. We can blame states B and C all day long for facilitating tax avoidance. But State A often holds the power to solve the problem itself. If state A does not do that, then we should be looking at why state A does not do that rather than why state B or state C stand by and allow or encourage and benefit from the arbitrage. Are democratic decisions being made to ignore the fairness problem in order to achieve a solution some people in state A consider to be smart, and if they are doing so, who are those people who think this is smart and have the people in state A who do not think it is so smart been allowed access to lawmaking in the same manner and capacity of those who do think it is smart?

Note that in this case there is no discussion about the problem of information asymmetry--that is, we are not looking at state B or C hiding the fact of the sale from state A. That is a different problem which state A might not be able to solve on its own (actually I believe it could but that is another story). But in terms of legal tax avoidance, I think this story is a wonderful illustration of the argument I often make, for example here and here, about who we should be looking to when facilitating legal tax avoidance becomes the central defining characteristic of a tax regime created by the interaction of multiple jurisdictions.

Thanks, New York Times, for inadvertently covering international tax policy in a fun story with pictures and even a graphic.

Next Week at NYU: Tax and Corporate Social Responsibility Symposium

I'll be taking part in this symposium on corporate taxation next Tuesday at NYU. Here is the description:

Tuesday, March 25, 2014  |  9:00 AM - 12:00 PM
D'Agostino Hall, Lipton Hall 

This symposium will feature two panels, “Should Corporations Pay Tax?” and “Should Corporate Tax Returns Be Public?”   

Participants include Reuven Avi-Yonah (Michigan), Allison Christians (McGill), Peter Barnes (Duke), Michael Schler (Cravath), Joshua Blank (NYU), Helen Scott (NYU), David Kamin (NYU), and possibly others.   

The event will be co-hosted by the Graduate Tax Program and the NYU Journal of Law & Business.   

It will take place from 9:15 AM to 12:30 PM on March 25th in Lipton Hall, D’Agostino Hall at NYU Law School, located at 110 West Third Street.

Additional info here, including this description:

From the enactment of the corporate excise tax in 1909 to the present, the corporate tax in the United States has generated intense debate.  Topics at the center of this debate have ranged from the fundamental purpose of the tax to moral obligations of corporations to pay tax to tax transparency and accountability.  This half-day symposium will continue the discussion by addressing two questions:  Should corporations pay tax?  And should corporate tax returns be public?  Each panel will feature leading tax and corporate law scholars and distinguished practitioners.  Participation from the audience in the discussion will be encouraged.

My recent writing on these subject includes a short essay entitled "How Starbucks Lost its Social License — And Paid £20 Million to Get it Back" on Starbucks' tax-dodging related image problems in Europe, a book chapter entitled "Tax Activists and the Global Movement for Development Through Transparency," on the global corporate tax transparency movement, and an article article entitled "Drawing the Boundaries of Tax Justice" which analyzes the fundamental justice questions surrounding the taxation of corporations (as well as humans).

Razin on Tax and Migration Competition

Assaf Razin and Efraim Sadka have a new paper up on NBER called Migration into the Welfare State, in which they survey the literature on the tax burden of migration and work with available migration and tax policy data to make some assertions about how taxation impacts inward and outward migration.  From the abstract in the paper:

We develop a stylised EU-type model of rich capital-abundant (and productive) countries and poor capital-scarce countries in order to explain a key feature of tax policies and inter- and intra-migration flows. We examine how this model can explain the differences in the tax rates and the generosity of the welfare state, on the one hand, and migration flows, on the other hand, between rich and poor countries, within a union and from the rest of the world. An upward-slopping supply of migrants from outside the union and the relatively low endowment of capital of these migrants gives rise to a fiscal externality.

The jargon-heavy style of this abstract continues through the paper and I cannot say that I really understand some of the arguments. Razin and Sadka seem to conclude that under conditions of tax competition (for example, involving migration from countries outside of the EU), rich countries let in too many immigrants, offer them too many social benefits, and levy too high a tax on capital (which immigrants don't typically pay) to pay for it all, while coordination fixes things (although confusingly the papers seems to suggest that coordination brings down capital gains taxes but intensifies migration flows, so I am not sure). Unfortunately this paper requires too much deciphering and parsing work by the reader (an all-too-common phenomenon with academic papers) and at this time of year there is little hope for that.

A plea to academic authors who write papers on tax topics especially (and a reminder to myself when I look at my own writing): readers need a clear and succinct summary, written in plain, jargon-free language, to help them summon the desire and the mental energy to work through a paper. The more complex and data-filled the paper, the more a return to Zinsser is to be recommended.

New Taxpayer Right in Canada: No Reprisals for "Service" Complaints

From the Canada Revenue Agency website: Harper Government launches new right to ensure Canadian taxpayers are treated fairly [french version here]
The new right says:

16. You have the right to lodge a service complaint and request a formal review without fear of reprisal.   

We know that to be trusted, effective, and efficient, we must conduct ourselves ethically and honestly, and the CRA strives to do so every day. Our employees are expected to act in accordance with the CRA Code of Ethics and Conduct and the Values and Ethics Code for the Public Sector. These codes are terms and conditions of employment and they reinforce our commitment to serve the public with integrity, professionalism, respect, and cooperation. This right means that if you lodge a service complaint and request a formal review of a CRA decision, you can be confident that the CRA will treat you impartially, and that you will receive the benefits, credits, and refunds to which you are entitled, and pay no more and no less than what is required by law. You should not fear reprisal. We are required to apply the law and relevant CRA guidelines and policies, which may include the charging of penalties, or requiring the payment of your debt. When CRA employees act in accordance with the law, these do not constitute acts of reprisal. If you feel that you have been subject to acts of reprisal, the CRA wants to hear from you. We take your concerns seriously. Tell us about them by completing section 3 – Reprisal Complaint on Form RC193, Service‑Related Complaint. We can assure you that we will address your complaint, and that we will send it directly to an investigation office located at CRA Headquarters. This will ensure that the investigation is conducted independently of the office associated with the complaint.

At a meeting with members of Certified General Accountants (CGA) Canada to discuss taxpayer fairness, Minister Gail Shea stated:

“Our Government is committed to ensuring that all Canadians are treated with fairness and respect by the Canada Revenue Agency. In our system of voluntary compliance, taxpayers must have confidence in the objectivity and fairness of CRA’s actions as a tax administrator. This new addition to the Taxpayer Bill of Rights will help reinforce public confidence in Canada’s tax system, and ensure that Canadians taxpayers feel free to speak up if they have a disagreement with the CRA.”

 Curiously, the CRA website adds the following:

Although there is no evidence that Canadians have been subject to reprisal by the CRA, in his work across the country, the Taxpayers’ Ombudsman heard that taxpayers would sometimes hesitate to lodge a complaint for fear of being treated differently afterward. To address this unwarranted fear and encourage Canadians to speak up if they have a disagreement with the CRA, the Ombudsman recommended that a new right be added to ensure Canadians are confident they will be treated fairly. 

The Taxpayer Bill of Rights is an agency statement that lacks the force of law, but many of its rights are legislated (via the Charter or otherwise). This new right aligns with observed attempts by tax agencies to present themselves as "service-oriented," that is, as if taxpayers were customers. It remains to be seen if and how taxpayers will avail themselves of this newly articulated right.

Apple's simple design interface most certainly does not extend to its tax department.

Lee Sheppard has an article today on Apple's tax tricks [gated] where she works through Apple's multinational structure & planning detailes as outlined in the Senate Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations (PSI) report. You should read the whole article, but here are some of its key concepts:

We're ... not easily shocked by transfer pricing practices that the U.S. government accepts, for better or worse. ...But Apple's planning ... is a special case . We're talking gross worldwide revenues the size of the California state budget, and no tax being paid anywhere on a huge chunk of profits. What is truly surprising about the Apple case is its brazenness. PSI concluded that Apple's self-serving intercompany contracts had no effect on its business practices.

...Nearly two-thirds of Apple's revenue comes from foreign sales. According to the PSI report, this foreign income is routed through Ireland and may be taxed nowhere, not even in Ireland. ... 

Apple Operations International (AOI), Apple's Irish-registered holding company, acts as an internal finance company. ... AOI claims tax residence nowhere.

Apple Sales International (ASI), an Irish principal company that manages Apple's supply chain and sales to Europe and Asia, is a subsidiary of Apple Operations Europe (AOE), which is a subsidiary of AOI and has employees and operations. ASI has 250 employees and deals with Apple's third-party Chinese manufacturers. 

ASI claims no tax residence anywhere ... [emphases added].

When I heard these statements--more than once--in the hearings, I wondered why on earth the Senator who was asking at the questions at the time didn't stop right there and say hold on, are you telling us that these companies exist, we are supposed to treat each as a separate taxpayer and respect its independence from the parent company for tax purposes, and accept at the same time that each resides for tax purposes in no country anywhere?

Let's be clear: humans never get away with these kinds of arguments. You might be resident in many places but I think it is very hard to claim that you are resident nowhere--governments always seem to find some reason and some way to claim you. But somehow the Senator didn't challenge this troubling statement.

If the challenge had come, we might have heard a not-so-simple design explanation from Apple, such as that the subsidiaries are incorporated in Ireland, which would make them Irish residents for US tax purposes, but for Irish tax purposes each is resident in Bermuda, while for Bermuda purposes each is resident in Ireland or at least not resident in Bermuda; either way, certainly neither is resident in the United States even though both are clearly controlled from California.

Simple, clean, one button design interface Apple's corporate structure is not.  Funny how Steve Jobs' vision was, and now Tim Cook's vision is, so different for the tax department. Yet this basic structure is, I must hasten to repeat, perfectly, unequivocally legal, understood and accepted and in many ways even facilitated by governments all over the world including and perhaps especially the United States with its deferral regime.  But that doesn't mean the whole structure is similarly straightforward from a legal compliance perspective. More from Lee:

Apple conducts all of its research and development in the United States. Apple Inc., the U.S. parent, has a cost-sharing agreement with AOE and ASI, which pay 60 percent of the cost of this research. Apple's intellectual property is in the United States with the U.S. parent, Apple Inc. Apple told PSI that it divides R&D costs according to worldwide sales revenues.

This arrangement, Lee tells us, dates back to a more permissive time in cost sharing regulatory history and would probably be protected from today's more stringent requirements. Lee observes:

...AOI has no employees; its American board members, who are Apple executives, hold their meetings in California, often without the participation of the lone Irish director. Apple's tax director told PSI that he believed AOI is not managed and controlled in Ireland. Apple told PSI that AOI has not paid income tax to any government for the past five years.

...Ireland takes the position that it is a legitimate low-tax country that only permits the 12.5 percent rate for income from trade, an ancient English concept that appears to require a ruling. Yet Apple told PSI that Ireland permitted an income calculation that enabled Apple subsidiaries to pay Irish corporate income tax at a rate of 2 percent or less. 

Lee wonders if this puts Ireland in a troublesome place vis a vis EU law which prohibits burying state aid within generally applicable tax laws, especially since Ireland is already getting some heat for changing its laws "to accommodate the numerous U.S. multinationals that use it to shelter European sales income." She then works through US domestic tax law and the US-Ireland treaty to show that AOI could very well be viewed as being taxable in the US, yet its income probably wouldn't be subject to tax in any event given the rather complex, internally inconsistent, but overall taxpayer friendly rules of subpart F and its ancillaries.

All in all Lee runs through of some of the more arcane complexities of the US international tax rules in this article, and makes a pretty persuasive case for viewing the system as hopelessly absurd in the extreme.  Tim Cook says he wants to change that, that he's all for a simpler, cleaner interface for the tax code. But remember that very often when someone says they want simplicity, what they really just want is to be able to pay (even) less tax.

What tax lawyers mean when they opine on the likelihood of success on the merits

I posted this on Twitter yesterday but for those not of the twitterverse, you may enjoy this guide to tax opinion standards, posted recently at Canadian Tax Litigation blog:

Percentage chance of success...Standard of Opinion 100% Will
99% Will, at the Ivory Soap level
98% Will, almost certainly
97% Will, almost all the time
96% I would be astounded if we lost
95% I would be very surprised if we lost
94% We will not lose this one
93% It had better be right
92% I would tell my mother-in-law to do this
91% I would tell my mother to do this
90% I would tell your mother to do this
89% Like crossing the street
88% It's in the bag
87% They don't get much better
86% You don't need an opinion
85% Why are you asking the question?
84% It’s almost in the bag
83% One could imagine a "will"
82% Stronger than a strong should
80% Strong should
79% Essentially, a strong should
78% Better view is a strong should
77% Not without hesitation, a strong should
76% Better than a good should
75% Good should
74% Odds are high
73% Remarkably likely
72% Very likely
71% Better than a weak should
70% Weak should
69% We expect to win
68% In all probability
67% In all likelihood
66% Looking good
65% Should probably
64% Most likely
63% Likely
62% Favourable prospect
61% Not without hesitation, should
60% Not a bad prospect
59% Reasonable prospect
58% Fair prospect
57% Well-grounded hope
56% There is reason to expect
55% Better view
54% Ought to be right
53% Not without hesitation, the better view
52% More likely than more likely than not
51% More likely than not
50% Your guess is as good as mine
49% Less likely than not
48% Less likely than less likely than not
47% Almost there
46% I hesitate to predict
45% Depends on the day of the week
44% If we get the right judge
43% A very good shot
42% A good shot Percentage chance of success Standard of Opinion
41% It arguably could work
40% It arguably might work
39% G-d willing
38% Depending on the facts
37% There are good arguments
36% Could be in the cards
35% Stranger things have happened
34% Throw of the dice
33% As taxpayer's counsel, I would not be ashamed to argue this in court
32% Not without considerable doubt
31% With some good fortune
30% Might
29% Might be argued that
28% Stands a chance
27% Might stand a chance
26% It could be that it might work
25% I might be that it could work
24% Not very likely
23% Conceivably
22% Conceivably, but not hopeful
21% I've seen worse
20% Perhaps arguable
19% Within the bounds of possibility
18% Maybe
17% Maybe, but not likely
16% Not likely enough
15% Possible, but not likely
14% Maybe Enron would do this
13% As a DOJ lawyer, I would not be ashamed to argue this in court
12% It should work, but it won't
11% It could work, but it won't
10% It might work, but it won't
9% Tell them you didn't know
8% Perhaps if nobody finds it
7% You have got to be joking
6% Anything can happen, but this won't
5% You must not understand the legislation
4% Canadian jails aren't bad
3% I wouldn't wish it on my enemies
2% Not bloody likely
1% Not in a month of Sundays
0% Not 

The Boundaries of Tax Justice

I posted a draft of this paper on SSRN some time ago but neglected to post it here, so here it is. I argue that because governments chase wage-earners and consumers doggedly while selectively overlooking or ignoring other taxpayers, the imposition of income taxation as it is practised by states today is fundamentally unjust. Abstract:

The story of our time may be the awakening of society to an epidemic of global tax dodging by the world’s elites. Citizens, watchdog groups, and even government officials are puzzled, frustrated, and sometimes outraged by the phenomenon, wondering where the nation-state lost its way in regulating its people and its resources, and why it is standing by, apparently helplessly, as its tax base erodes while austerity measures undermine the welfare state. This paper demonstrates that the sequence of tax base erosion-austerity-welfare state erosion is a story about a crisis of tax justice. It does so by revisiting how Canada's historic Royal Commission on Taxation, in its search for guiding principles for tax reform, turned to tax justice as the central component for any tax system. It shows why nations have consistently failed to meet these guiding principles, instead taxing the easy-to-tax more or less comprehensively, the hard-to-tax more or less randomly, and the impossible-to-tax not at all. It demonstrates that the result is that no state today imposes taxation justly: instead, taxation as exercised around the world today is overwhelmingly characterized by arbitrariness and injustice. The paper concludes that if governments cannot or will not pursue justice in taxation, they have at minimum a duty to explain to society why this goal is no longer worthy of pursuit.

This paper includes a discussion of who should be considered a "taxpayer" by a state. I argue that citizenship-based taxation is unjust from both a human and statist perspective, and I therefore make the case for residence-based taxation. As always, comments are welcome.

Upcoming conference on tax & philanthropy

Over at Philanthropy blog Lucy Bernholz alerts us to an upcoming conference in DC  (to be webcast) on "The Charitable Deduction in American Political Thought," in which participants will discuss the charitable deduction's "deepest dimensions as an expression of fundamental American political principles." And there is required reading:

• Alex Reid, "Renegotiating the Charitable Deduction," and
• Rob Reich's "Toward a Political Theory of Philanthropy"

Neither of which I've read so I had better get going. 

France ups the ante for EU tax evasion

Cahuzac's denials and ultimate admission about hiding money offshore while serving as the anti-evasion officer-in-chief is very embarrassing for France, and so it should be no surprise to see the rhetoric heat up as new allegations surface about his attempts to move the money around in an ultimately futile attempt at subterfuge. From AFP:

J'ai dit quoi?

France said Sunday [ed: France is a country and cannot speak. It is not so difficult to write "French leaders said", and it is ever so much less distracting.]  it was looking to tighten Europe-wide measures against tax evasion as it scrambles to contain a fraud scandal that has rocked President Francois Hollande's government.

...Finance Minister Pierre Moscovici announced that France would seek to reinforce the exchange of banking information throughout Europe, based on a US ruling in place since 2010 that seeks to fight offshore tax evasion.

Well, the "rule" may have been in place but let us recall that it is not in fact yet in force...three years later, we're still working out the kinks over here, and there are many, many kinks.

More:

"I propose that there be an automatic exchange of information, a European FATCA," Moscovici said on Europe 1 radio.

Hollande's government has been shaken by the scandal, which erupted Tuesday after Cahuzac -- once in charge of tackling tax evasion -- admitted to investigators that he had a foreign account containing some 600,000 euros ($770,000). 

...Critics have been quick to round on Hollande and his ministers, accusing them of either trying to cover up the scandal or of mismanagement for having believed Cahuzac's denials.

...Hollande has tried to contain the fall-out from the scandal, saying he was unaware of the account and announcing Wednesday that a new law would be submitted within weeks that will establish greater control over ministers' wealth. 

The law would also ban any elected representative found guilty of tax fraud or corruption from holding any form of public office.

Query whether there would be enough people left to run the world if every country made this same pledge.

To understand why citizenship-based taxation is objectionable, consider the STEM Jobs Act of 2012

Victoria Ferauge explains in as clear a way as may be possible why it is important to understand what people mean when they talk about citizenship-based taxation, and why the US effort to impose it with the big stick of FATCA is so objectionable to Americans living in other countries (also known as "immigrants" in those countries). She makes a number of points but I wanted to highlight one here:

In the [dialectic on Americans living abroad, which equates expatriation with tax evasion] it seems not to have occurred to the American public or its lawmakers that the people they are trying to attract [through immigration policies aimed at high-skilled workers] are the product of other countries' investments in producing a well-educated populace. 

In light of that, consider what the Heritage Foundation says about the STEM Jobs Act of 2012:

American businesses are struggling to fill high-skilled employment opportunities. STEM jobs grew at over three times the pace of non-STEM jobs between 2000 and 2010 and are expected to grow almost twice as fast by 2018. Business groups have spent years urging Congress to reform the visa system in order to fill these empty positions.

Enhancing the ability of high-skilled workers to enter the U.S. would be an asset to the nation’s economy as well as its indebted government. 

In case the instrumentalist nature of our interest in immigrants is not clear, the point is we're going to make these foreign-born, foreign-raised, foreign-educated, now high-skilled, highly-paid workers a permanent part of the American taxpaying public, which can increasingly be defined as the American wage-earning public. One may be forgiven, perhaps, for juxtaposing this deep thirst for foreign talent against America's ongoing disinvestment in its own social infrastructure, including public education (also helped along by the Heritage Foundation).

Victoria's post thus seems to me to contain the contours for constructing the normative case for taxing humans. There is much to be done on this topic, but it seems clear that the practice of admitting immigrants at all, let alone actively seeking highly-skilled ones, demonstrates that inbound human mobility is a social good that states support; that inbound human mobility (perhaps especially of the high-skilled kind) may be the product of rather intense social investment by some other country; and that conversely taxing on the basis of citizenship regardless of residence is a means of preventing outbound human mobility and so runs strictly counter to the overall good of human mobility while also being hostile to the aims of other countries also seeking inbound labour.

The US has long objected to onerous fiscal controls on the capital it sends across borders, so it seems particularly difficult to understand the ongoing support for placing onerous fiscal controls on its outbound labour supply. Contextualize that observation within the story of the shift of taxation from capital to labour over the past 50 years, however, and a pragmatic explanation is easily ascertained. But pragmatism does not make the normative case. In fact, it violates the conventionally-understood major normative factors for assessing taxation--efficiency, administrability, and fairness--because it introduces an insurmountable amount of arbitrariness. This topic deserves much more thinking than has been allocated to it by tax policy observers, including myself.

There is much more at the link, please do go and read Victoria's whole post.

How to Make America a Global Tax Haven

Isn't it astonishing that at the very moment the USA is twisting arms the world over ostensibly to crack down on tax havens and the erosion of the tax base they help perpetuate, Bloomberg could run this headline without irony or shame, and we can get a brand new quote from yet another American lawmaker about the virtues of making the US a tax haven. This time it's not Paul Ryan who wants to "make America a tax shelter" but his friend Devin Nunes, who says the US ought to abandon corporate income tax, and substitute for it a cash flow consumption tax, in order to "make the U.S. the largest tax haven in human history."

You just cannot make these things up. You remember Nunes, I hope--yes, that's him, the co-chair of the international working group on tax reform convened by Camp & Levin. Yes, that Levin, the one that wrote FATCA, the legislation that is supposed to stop Americans from cheating on their taxes by using other countries as tax havens.

Of course you can say that in substance the two are very different--Levin's focus is to stop Americans hiding cash overseas in foreign bank accounts, while Nunes just wants to let corporations pay less tax on the income they earn in the US. And a cash flow consumption tax might not be evil. But using the tax haven and tax shelter rhetoric as a marketing strategy is objectionable. Either you think tax havens and tax shelters are an abuse of the rule of law, in which case you shouldn't try to turn your country into one, or you think they're just dandy in which case you shouldn't try to shut everyone other country down  to capture the market for yourself.