Blog migration to www.allisonchristians.com

To the regular readers of this blog: you are relatively modest in number but have been enormously supportive in substance--thank you! I recently updated my website and I will be posting much more content and commentary there going forward. If you are a subscriber or regular reader of this blog and want to continue following my work, please visit the newly reorganized and updated website.

Preliminary Analysis of KPMG Transfer Pricing Study for OECD Digital Tax Proposal

A recent KPMG transfer pricing study posits fixed percentages for returns to marketing and distribution activities, a.k.a. Amounts B and C in OECD parlance. The study casts some light on the OECD's design for a new global tax allocation respecting the profits of certain digital economy firms. By extrapolating from Amounts B and C, the KPMG study helps draw a very rough estimate of what Amount A potentially looks like (granularity is impossible because, among other things, how much routine and non routine profit is attributable to factors other than Amounts A, B, and C cannot be determined in the abstract).

I've developed a formula (ppt available for download here) from the OECD Secretariat's Unified Approach, applying the fixed routine (10% and 20%) and market share (20%) numbers the OECD used by way of example in its Impact Analysis, and plugging in the KPMG percentages for Amounts B and C.

The KPMG Study provides a starting point to consider how firms are likely to approach Pillar One and how nations are likely to fare under the OECD Secretariat's approach, now endorsed by the Inclusive Framework. Briefly, the study is described as "a fact-based economic analysis using comparables data of the arm’s length returns to sales, marketing and distribution," prepared by KPMG under commission by Microsoft. It looks more like a standard transfer pricing report than an actual economic analysis, and it raises the usual pile of questions about assumptions and definitions but it is a starting point for understanding the scope of possible redistribution under Pillar One. Like the Study and the OECD Impact Analysis, I've made a bunch of simplifying assumptions and would benefit from comments and suggestions.

Designing Sustainable Tax Regimes: Workshop at McGill

We are concluding the fall tax policy colloquium at McGill next week with an interdisciplinary workshop to discuss ideas around the idea of sustainability in taxation. Here is the info:

Designing Sustainable Tax Systems

This workshop will bring together scholars and students in law, environmental management and engineering, political science, and economics to discuss what sustainability means and implies for taxation. Participants will discuss the broad idea of sustainability and its connection to consumer and investor behaviour; sustainability at the level of the firm, the society, the state, and the international community; the idea of triple bottom line accounting and the role of tax sustainability in CSR practices and ESG-certified investing; emerging ideas about sustainability in terms of taxpayer buy-in and administrability; and legal and institutional proposals to increase sustainability in taxation.

Agenda

11:00 Welcome

11:30 Richard Janda, Tracing and diminishing our environmental footprint 

12:15 Rita De la Feria, The Impact of Public Perceptions on VAT Rates Policy

13:00 Lunch

14:30 Benoit Timmermans & Wouter Achten, Using life cycle analysis to internalize environmental and social costs of production via VAT

15:15 Julien Tremblay-Gravel, Redistributing Taxing Rights Across Borders Under a DaVAT

16:00 Break

16:15 Allison Christians & Tarcisio Magalhaes, Blueprint for a Sustainable International Tax System

17:00 Closing remarks and reception

If you are in Montreal and would like to attend please contact me; space is limited but we will attempt to accommodate all those who are interested in attending.

Next Monday at McGill: Karie Davis-Nozemack, Applying Sustainability to Tax

Continuing the McGill tax policy colloquium next week will be Karie Davis-Nozemack, Associate Professor of Law & Ethics at Georgia Tech Scheller College of Business. Prof. Davis-Nozemack will discuss her forthcoming article with Kathryn Kisska-Schulze, which considers whether and how tax policy can support the quality of life, social justice and cohesion, diversity, democratic rights, broad participation, and social capital and individual capabilities that societies wish to sustain. The paper will be published in the Florida Tax Review and it follows Prof. Davis-Nozemack's earlier work with Robert Bird, Tax Avoidance as a Sustainability Problem, 151(4) J. Bus. Ethics 1009 (Sept. 2018), which examined tax avoidance in the context of corporate sustainability practices.

As always, the colloquium is supported by a grant made by the law firm Spiegel Sohmer, for the purpose of fostering an academic community in which learning and scholarship may flourish. The land on which we gather is the traditional territory of the Kanien’keha:ka (Mohawk), a place which has long served as a site of meeting and exchange amongst nations.

The talk and discussion will take place from 3-5 pm in New Chancellor Day Hall room 316; all are welcome to attend. The complete colloquium schedule is below and here.

Tomorrow at McGill: Karen Brown on Tax Policy for Sustainable Growth

Continuing the tax policy colloquium tomorrow will be Karen Brown, Theodore Rinehart Professor of Business Law at the George Washington University Law School, whose working paper is entitled Tax Policy: A Tool to Support Sustainable Growth. The paper examines the World Bank's "Human-Centered Business Model" which was developed by Marco Nicoli in a 2017 paper entitled
"The Human-Centered Business Model (HCBM): A Holistic Approach to a New Model for Doing Business." As Prof. Brown describes it, this project:

details a “common set of corporate goals covering economic, social, and environmental sustainability”  to create a coherent “business ecosystem.” Of a six-pronged approach , the fourth, known as the Fiscal Pillar, is designed to offer governments a menu of options allowing them to implement tax regimes that support efficiency and growth in their economies while providing incentives for enterprises to operate with attention to core principles as well as the considerable costs of doing business in a manner that disserves sustainable goals.

The paper examines the relevant goals and analyzes the prospects for achieving them using tax incentives (which the paper adjudges non-optimal) and varying tax burdens for sustainable and non sustainable business models (which the paper broadly endorses).

The paper notes that Marco Nicoli retired from the World Bank in 2018 but guides the HCBM project in his role as Advisor to the OECD’s Centre for Development in Paris. Surprising, then, that nowhere in the OECD's work on BEPS or its urgent progress on tax challenges arising from the digital economy is there any mention of coordination of these efforts with the sustainable development goals whether through the HCBM project or through the broader financing for development work on mobilizing domestic revenues. A missed opportunity since, as Prof. Brown notes:

Corporate taxes may be inappropriately low when measured by the value of operating in a vibrant and stable global economy sustained by adequate government expenditures.  Treating taxes as costs to shift onto others enables these companies to ignore the important role of taxation in the modern world. Yet a corporate goal of minimizing costs and maximizing profit above all else may operate to impair the effectiveness of governments in supplying the infrastructure and other goods and services necessary to support the basic needs of their residents. 

As editor and contributing author to "Taxation and Development - A Comparative Study", Prof. Brown is uniquely situated to talk about the incorporation (or lack thereof) of sustainability into taxation rubrics, and vice versa. It promises to be a good discussion.

As always, the colloquium is supported by a grant made by the law firm Spiegel Sohmer, for the purpose of fostering an academic community in which learning and scholarship may flourish. The land on which we gather is the traditional territory of the Kanien’keha:ka (Mohawk), a place which has long served as a site of meeting and exchange amongst nations.

The talk and discussion will take place from 3-5 pm in New Chancellor Day Hall room 316; all are welcome to attend. The complete colloquium schedule is below and here.

Tomorrow at McGill: Magalhaes on a New Global Tax Deal for the Digital Age

Tomorrow the McGill tax policy colloquium continues with a presentation by Tarcisio Magalhaes, who will discuss our co-authored paper, forthcoming in the Canadian Tax Journal. Here is the abstract:

The OECD is currently in the midst of a project intended to tackle the tax challenges arising from the digitalization of the economy. As laid out in Pillar 1 of its program of work released in May 2019, the goal seemed broadly to develop consensus on a new taxing right, to allow countries to tax multinationals even in the absence of traditional physical presence. Upon inspection, the plan seems to be about rebalancing taxing rights mostly among the relatively affluent OECD member states plus a few other key non-OECD states. Viewed from this perspective, the urgent effort to forge a new global tax deal for the digital age is destined to forestall a much-needed discussion on the broader distributive implications of the current global tax deal. This Article therefore critically examines the emerging tax bargain. Part I begins with a brief survey of some of the main factors that prompted the OECD to turn its attention to this topic. Part II considers the origins and development of nexus in the international tax regime, showing why this concept is amenable to broad expansion. Part III examines the range of reforms currently under consideration, arguing that the framing on digitalization misses a necessary connection to other pressing international policy programs that are also under development, most notably a global commitment to building institutions that support sustainable economic development. The Article concludes with a prediction that on its current trajectory, the program of work on digitalization is likely to produce a new global tax deal that looks much like the old global tax deal, with a relatively modest redistribution of taxing rights among a few key states, thus missing an opportunity for meaningful reform. 

The colloquium is supported by a grant made by the law firm Spiegel Sohmer, for the purpose of fostering an academic community in which learning and scholarship may flourish. The land on which we gather is the traditional territory of the Kanien’keha:ka (Mohawk), a place which has long served as a site of meeting and exchange amongst nations. The talk will take place in New Chancellor Day Hall room 316; all are welcome to attend. This fall the Colloquium theme is Designing Sustainable Tax Systems. The complete colloquium schedule is below and here.

[revised 4 Nov to include link to newly posted draft paper]

Today at McGill: Rebecca Kysar will Unravel Tax Treaties

The next instalment in this fall's tax policy colloquium at McGill will feature Rebecca Kysar, who will speak about her forthcoming paper, Unraveling the Tax Treaty, today at 3pm. Here is the abstract:

Coordination among nations over the taxation of international transactions rests on a network of some 2,000 bilateral double tax treaties. The double tax treaty is, in many ways, the roots of the international system of taxation. That system, however, is in upheaval in the face of globalization, technological advances, taxpayer abuse, and shifting political tides. In the academic literature, however, scrutiny of tax treaties is largely confined to the albeit important question of whether tax treaties are beneficial for developing countries. Surprisingly little consideration has been paid to whether developed countries, like the United States, should continue to sign tax treaties with one another, and no formal revenue or economic analyses of the treaties has been undertaken by the United States government. In fact, little evidence or theory exists to support entrance into tax treaties by the United States, and examination of investment flows indicates the treaties may even lose U.S. revenues. Problematically, the treaties also thwart reforms of the antiquated and broken international tax system. The trajectory of the recent U.S. tax legislation illustrates this phenomenon. 

Although tax treaties may have, at one time, served salutary purposes, modern circumstances call into question the relinquishment of taxing jurisdiction by source countries. I suggest that nations unravel the jurisdictional provisions from the treaties, abandoning or scaling them down, possibly through the new multilateral instrument. Rather than assessing antiquated notions of worldwide efficiency, the challenge for the international tax system going forward will be to attempt some degree of coordination while also imparting flexibility to advance national interests in setting revenue policy. This solution aims to thread that needle.  

The colloquium is supported by a grant made by the law firm Spiegel Sohmer, for the purpose of fostering an academic community in which learning and scholarship may flourish. The land on which we gather is the traditional territory of the Kanien’keha:ka (Mohawk), a place which has long served as a site of meeting and exchange amongst nations. The talk will take place in New Chancellor Day Hall room 316; all are welcome to attend.

This fall the Colloquium theme is Designing Sustainable Tax Systems. The complete colloquium schedule is below and here.

Law student tutorial: 8 minutes to construct a better term paper

Having given students one-on-one tutorials on how to organize their papers so many times that I have lost count, I finally made a tutorial. This is obviously aimed at my own students but as the fall semester gets into full swing and term paper writing projects take shape, others might find it helpful as well so here it is.

Enjoy: 8 minutes and only a few steps to constructing a better paper.

Monday at McGill: Eric Zolt presents "Tax Treaties and Developing Countries"

On Monday at McGill, Eric Zolt continues the fall tax policy colloquium with a presentation of his working paper entitled Tax Treaties and Developing Countries. Here is the intro:

Academics and others over the last 50 years have called for developing countries to hesitate or refrain from entering into bilateral tax treaties with developed countries. Tax treaties seek to facilitate cross-border transactions and investments by reducing tax barriers and providing greater certainty to foreign investors. But treaty provisions invariably result in countries yielding taxing rights. Since at least the 1920s, treaties have arguably provided greater taxing rights to the country where the investors reside (generally, capital-exporting developed countries) rather than the country where the economic activity takes place (often, capital-importing developing countries). Where capital flows are roughly equal between countries, rules that skew taxing rights towards residence-based taxation away from source-based taxation result in little or no revenue shifting. But where capital flows are less even, the tax revenue consequences may be substantial. 

Critics of tax treaties between developed and developing countries contend that developing countries give up tax revenue and receive little in return. But this common position rests on a questionable narrative. It assumes that tax treaties result in a transfer of revenue from developing to developed countries. For several reasons, tax revenue yielded by developing countries likely results in relatively little revenue gains by developed countries. In the current economic environment, tax treaties are less about distributive rules between countries and more about developed countries assisting their multinational entities in reducing their foreign tax liability and developing countries using tax treaties to attract foreign investment. 

Framed this way, tax treaties share much in common with traditional tax incentives (such as tax holidays and favorable depreciation provisions). Viewing tax treaties as tax incentives changes the focus from whether the treaty provisions are fair to developing countries to whether this type of incentive generates economic benefits that justify the revenue costs. 

For some, perhaps many, developing countries, tax treaties with developed countries make little economic sense. But for many other developing countries, this decision is more complex. It requires making country-specific and treaty-specific determinations of the revenue costs and economic benefits from entering into tax treaties with developed countries.

Viewing tax treaties as primarily incentive delivery mechanisms provides a reason for substantial scrutiny of their costs and benefits--a rarity given the often oblique if not thoroughly opaque nature of treaty adoption and ratification procedures across countries. The paper makes the case that evaluating the effectiveness of tax treaties involving developing countries is complex and specific to the particular countries and treaty terms, and that the main issue to be queried should not be the fair distribution of revenues between differently situated countries but rather the economic costs and benefits of reducing taxation as an incentive for inbound investment.

Zolt argues that "the stylized world where tax revenue yielded by source countries is picked up by residence countries is more fiction than fact," at least, in a world in which most primarily capital-exporting (rich) countries have primarily territorial rather than worldwide tax systems as is the case today. The examination of alternative approaches to cost benefit analysis in the latter part of the paper provides a useful reminder that isolating the economic impacts of any given tax policy position is difficult, no less so when the policy in question is packaged in the form of  tax treaty instead of a statute. Zolt nevertheless concludes that

Countries (both developed and developing) need to do the hard work of estimating the economic consequences of entering into tax treaties. This country-specific and treaty-specific cost-benefit exercise will be challenging and frustrating, given the many different assumptions that will influence the calculations. But these challenges are similar to those for estimating the costs and benefits of tax incentives and other types of tax expenditures. The exercise will also inform a country’s negotiating positions by highlighting those provisions (such as zero or low withholding taxes) that contribute to potential revenue losses. 

This paper is a timely contribution to the ongoing debate about how, and by which countries, cross-border income ought to be taxed, and I very much look forward to discussing it on Monday.

The colloquium is supported by a grant made by the law firm Spiegel Sohmer, for the purpose of fostering an academic community in which learning and scholarship may flourish. The land on which we gather is the traditional territory of the Kanien’keha:ka (Mohawk), a place which has long served as a site of meeting and exchange amongst nations.

This fall the Colloquium theme is Designing Sustainable Tax Systems. The complete colloquium schedule is below and here.

Monday at McGill: DeLaFeria presents Tax Fraud and Selective Enforcement

Tomorrow at McGill, Rita DeLaFeria will kick off the fall tax policy colloquium with a presentation of her work in progress entitled Tax Fraud and Selective Law Enforcement. Here is the abstract:

This article presents a new conceptual framework for research into tax fraud. Informed by research approaches from across tax law, public economics, criminology, criminal justice, economics of crime, and regulatory theory, it assesses the effectiveness, and the legitimacy, of current approaches to combating tax fraud, bringing new dimensions to previously identified trends in crime control. It argues that, whilst the last decade has witnessed significant intensification of measures that purportedly target tax fraud both within Europe and elsewhere, these measures display a fundamental misunderstanding of the phenomenon of tax fraud. 

Using VAT as a case study, it is argued that these measures concentrate upon combating the revenue costs of fraud rather than the fraud itself. Whilst measures deployed to combat revenue costs and those deployed to combat the tax fraud often coincide, this is not always the case. In cases where they do not coincide, prevalence is consistently given to enforcement measures that address revenue costs, rather than combatting the fraud itself, even where the effect is to aggravate other costs of tax fraud. It is argued that a concentration solely upon the revenue costs of fraud can no longer be regarded as either deterrent or punishment, but merely as a compensatory mechanism for the lost revenue. 

These developments in anti-tax fraud policy demonstrate a significant shift –one that appears to be motivated by a mixture of endogenous and exogenous factors– from tax fraud suppression to tax fraud management. The article concludes that this shift not only undermines tax equity and overall tax compliance, but may also lead to selective tax enforcement, thus representing a significant risk to the rule of law.

The colloquium is supported by a grant made by the law firm Spiegel Sohmer, for the purpose of fostering an academic community in which learning and scholarship may flourish. The land on which we gather is the traditional territory of the Kanien’keha:ka (Mohawk), a place which has long served as a site of meeting and exchange amongst nations.

This fall the Colloquium theme is Designing Sustainable Tax Systems. The complete colloquium schedule is below and here.