Monday at McGill: Mason on the Illegality of EU Digital Services Taxes

Ruth Mason, Class of 1957 Research Professor of Law, University of Virginia, will visit McGill next Monday to give a talk on her forthcoming work with Leopolda Parada on the compatibility of digital services taxes with EU law. In brief Mason and Parada posit that the focus of proposed EU digital services taxes on very large multinationals is intended to target US-based giants (Google, Amazon, etc) but in fact implicate EU treaty-based anti-discrimination provisions applicable to their EU-based subsidiaries. Here is the abstract:

This Article uses the example of company-size classifications to explore the role of disproportionate impact and legislative intent in judicial review of Member State laws for nationality discrimination. Our discussion of disproportionate impact is mostly descriptive—we explore how the Court has resolved questions of quantum and proof in the cases. Our discussion of intent is mostly normative—we argue, contrary to current doctrine, that courts should consider the legislature’s intentions as probative, but not dispositive, of discrimination. 

We chose company size for two reasons. First, discussion of company size as covert nationality discrimination is new to the literature. Second, Member States increasingly use company-size classifications in tax laws; Poland and Hungary recently used turnover (as opposed to net income) to determine tax rates; and Spain proposes to use turnover to establish liability for its new digital services tax. 

To illustrate how the Court of Justice might apply our approach to size discrimination, we consider whether the company-size thresholds in Spain’s and the EU’s recent proposals for a digital services tax constitute covert nationality discrimination. More generally, cooperative negotiations at the OECD towards reform that would appropriately tax the modern, digital economy must account for limitations imposed by EU law, and in particular its prohibition on nationality discrimination.

The tax policy colloquium at McGill is supported by a grant made by the law firm Spiegel Sohmer, Inc., 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 explores a range of contemporary tax topics across three disciplines--law, economics, and philosophy. The complete colloquium schedule is below and more information is available here. The Colloquium is convened by Allison Christians, H. Heward Stikeman Chair in Taxation Law.

As always, the colloquium is free and open to all. Prof Mason will speak on Monday December 3 at 4-5:30pm, New Chancellor Day Hall, Room 102.

Today at McGill: Brooks on Comparative Tax Law: Development of the Discipline

Today at McGill, Professor Kim Brooks will present her current work in progress as the final speaker of the 2017 tax policy colloquium at McGill Law. Here is the abstract:

The new millennium has inspired renewed interest in comparative law generally and comparative tax law in particular, with practitioners and scholars rapidly building the literature that defines the modern field. Despite the increase in authors undertaking comparative tax work, however, the contours of the theoretical and methodological debates lack definition; despite several leading articles that call on scholars to actively engage with each other on matters of approach, most scholars continue to “write alone”; and despite the increasing availability of thoughtful comparative law textbooks and monographs, tax scholars do not connect their work with debates in comparative law generally.

In this paper, I provide a foundation for future comparative tax law research. Part 1 reviews the major debates and theoretical directions in comparative law scholarship, focusing on the recent work in the field. Part 2 offers an intellectual history of comparative tax law scholarship, identifying the major contributors to the discipline of comparative tax law and conceptualizing the field’s development in five stages. Finally, Part 3 generates a taxonomy of modern comparative tax law research based on its
underlying purpose, explores how that work connects to the comparative law field, and identifies approaches to comparative tax law method, in the light of the work to date, that best advance tax knowledge.

The tax policy colloquium at McGill is supported by a grant made by the law firm Spiegel Sohmer, Inc., 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, in celebration of the centennial anniversary of the introduction of federal income taxation in Canada, the Colloquium focuses on the historical significance and development, as well as the most recent challenges, of the modern tax system in Canada and around the world. 

The Colloquium is convened by Allison Christians, H. Heward Stikeman Chair in Taxation Law. 

Prof. Brooks' talk will take place from 2:35-5:35pm in the newly renovated Chancellor Day Hall Room 101, 3644 Peel Ave, Montreal. All are welcome to attend.

Spiro on Citizenship Overreach

The always excellent Peter Spiro has recently posted this new article on SSRN, of interest. Abstract:

This Article examines international law limitations on the ascription of citizenship in the context of U.S. taxation of non-resident citizens. U.S. citizenship practice is exceptionally generous, extending citizenship to almost all persons in its territory at the moment of birth. At the same time that it is generous at the front end, U.S. citizenship is sticky at the back. Termination of citizenship on the individual’s part involves substantial fees and tax compliance. It is difficult to shed a citizenship one may never have wanted in the first place. 

This stickiness would be inconsequential if few costs were associated with the status. But the United States taxes its citizens on a worldwide basis. The 2010 enactment of the Foreign Account Tax Compliance Act has ramped up historically lax enforcement and imposes substantial administrative burdens on even middle-earner citizens abroad. 

In this frame, U.S. birthright citizenship and expatriation regimes may violate international norms, especially with respect to those "accidental Americans" who departed the United States as children. Even in the context of extremely relaxed historical constraints on state nationality practice, there were acknowledged nineteenth century limitations on the extension of citizenship to individuals with insufficient connection to a state -- citizenship over-claiming, as it were. The article also describes the historical requirement that naturalization be volitional, a norm now appropriately applied in some cases in the context of birthright citizenship.  

To the extent the ascription of U.S. citizenship compromises individual rights, there are tax fixes and there are citizenship fixes. Citizenship fixes include opt-in and opt-out mechanisms for birthright citizenship. The better solution may lie in frictionless exit for those with nominal ties to the national community. Though reform is more likely to be accomplished through the tax regime, the moment highlights the over-inclusiveness of U.S. citizenship and the growing salience of international law to citizenship practices.

I'm less confident than Peter that reform will ever be delivered through the tax regime, but I am very glad to see this important contribution to the growing literature focusing on the citizenship/taxation link.

Heyka on Tax Treaty Arbitration and A World Tax Court

Last fall I via twitter I shouted out two of my students who won the Tax Analysts Student Writing Competition, in the international category:

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

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:

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.

The Seven Rules for Tax Research, Now Ten

The OECD released the multilateral instrument (MLI) on tax, so (assuming that at least five countries ratify it), we have to revise the old rules for doing tax research. The MLI means that any given tax situation will be impacted by relevant statutes, relevant tax treaties, and the portions of the MLI that are in effect as to those treaties. So here they are, the revised rules for tax research:

You can find the text of the MLI here. The Explanatory Statement, also at that link, is so far only in English.

Three months after five countries ratify, the MLI will be in effect; subsequent accessions will take effect one month after ratification. However, as to optional provisions, no substantive changes take effect until both parties notify which provisions they intend to apply to which of their treaties. 

The OECD has designed three types of provisions and explains how they relate to existing tax treaties. Here are my notes to self:

Much more analysis to do obviously, but my first cut at this is to try to understand the process of integrating the MLI into the existing tax law order. 

Fleming Peroni & Shay on Corporate Tax, Credits, and even Customary International Law

Fleming Peroni & Shay recently posted a new article, of interest as it renews the authors' case, in the wake of BEPS, for both worldwide corporate taxation without deferral (a controversial proposal to say the least) and the foreign tax credit as an appropriate mechanism to allocate tax among home and host countries. As the abstract below indicates, the argument in favour of tax creditability is contra Dan Shaviro, who has argued for foreign taxes to be deductible rather than creditable. The FP&S argument in favour of full current taxation without deferral is contra almost everyone, so it's fun to see FP&S make it, especially in the face of what appears to be a rapidly rising tide of sentiment going in the opposite direction. 

My own view is that a switch to deductibility would increases pressure on capital importing countries to reduce their source-based taxes (a deduction does not fully offset the foreign tax, so it would make such taxes more costly to US firms as compared to fully creditable foreign taxes), and therefore transfer revenues from poor to rich countries. Deferral already places tremendous tax competition pressure on host countries, while ending it might enable some countries (to which US capital is a major source of inbound investment) to increase their source-based taxation (as explained in this paper). Therefore I was happy to see this FP&S paper give additional support to the beleaguered tax credit while still recognizing that there is such a thing as giving too much credit.

I was also intrigued to see FP&S begin their paper by picking up Reuven Avi-Yonah's premise that taxation on the basis of residence and source is customary international law. That is not only a relatively unusual argument to find in a US-authorized tax paper, but it is a potentially controversial perspective, which I am exploring in a paper of my own (making the international law case against citizenship based taxation). So, thank you Fleming, Peroni and Shay, for the additional citation support for my arguments.

It is also worth noting that FP&S include in this paper a defense of the corporate income tax in the form of footnote 200, which spans more than a page in tiny but useful print. It summarizes the main points regarding why corporate tax is necessary as a backstop to individual income taxation, citing to the main arguments for and against, thus serving as a valuable micro treatise on the subject.  

Finally, I note that FP&S only give the FTC two cheers instead of three because they feel that it conflicts with the principle of ability to pay, an argument I have not seen before and that gives me pause. Their argument is that foreign taxes are a cost to individuals attendant to investing abroad, and that crediting these taxes is too generous from the perspective of fairness, that a deduction would sufficiently account for the cost in terms of measuring ability to pay. I can understand that argument where the FTC is itself too generous, allowing cross-crediting and not restricting its application to double taxation. But I do not understand that argument applied to an FTC that restricts itself to a dollar for dollar credit of actual taxes paid, which I believe is the argument being advanced here. That's something to think about a little more.

In any event, abstract below and paper at the link above. Well worth a read.

 Reform of the U.S. international income  taxation system has been a hotly debated topic for many  years. The  principal competing alternatives are a territorial or  exemption system and a worldwide  system.   For reasons  summarized  in  this  Article, we favor worldwide taxation if it is real worldwide  taxation; that  is, a nondeferred U.S. tax is imposed  on all foreign income  of U.S.  residents at  the  time the  income is earned.  However,  this approach  is not  acceptable unless  the resulting double  taxation  is alleviated.    The longstanding U.S. approach for  handling the international  double taxation  problem is a foreign tax credit limited to the U.S. levy  on the taxpayer’s  foreign  income.   Indeed,  the foreign tax credit  is an essential element of the case  for worldwide taxation.  Moreover, territorial systems often apply worldwide taxation with a foreign tax credit to all income of resident individuals as well as the passive income and tax haven income of resident corporations.  Thus, the foreign tax credit also is an important feature of many territorial systems. The foreign tax credit has been subjected to sharp criticisms though, and Professor Daniel Shaviro has recently proposed replacing the credit with a combination of a deduction for foreign taxes and a reduced U.S. tax rate on foreign income.  

In this Article, we respond to the criticisms and argue that the foreign tax credit is a robust and effective device.  Furthermore, we respectfully explain why Professor Shaviro’s proposal is not an adequate substitute.  We also explore an overlooked aspect of the foreign tax credit—its role as an allocator of the international tax base between residence and source countries—and we explain the credit’s effectiveness in carrying out this role.  Nevertheless, we point out that the credit merits only two cheers because it goes beyond the requirements of the ability-to-pay principle that underlies use of an income base for imposing tax (instead of a consumption base). Ultimately, the credit is the preferred approach for mitigating international double taxation of income.

 

OECD seeking "technical" input from the public on "multilateral instrument" to modify tax treaties

The OECD recently released what it calls a "public discussion draft" in connection with its work on the multilateral instrument (MLI), and seeks public input until June 30. As I explained in a post a  few months ago, the MLI is be used to 'modify' all existing tax treaties in force among signatory countries to conform to BEPS standards and recommendations. However, the released document is not actually a discussion draft of the MLI--there are no terms to be reviewed. The drafting committee, which currently includes 96 members (OECD members and "BEPS Associates"), only met for the first time two weeks ago so this is decidedly not a draft of substantive provisions to be debated in the public discourse. No, that would be chaos and contrary to the plan:

"the draft text of the multilateral instrument is the subject of intergovernmental discussions in a confidential setting."

Instead it is in effect a crowdsourced, and very carefully framed, issue-spotting exercise. The document consists of three pages: page one is the BEPS narrative (why the OECD undertook this project and what has happened so far). Page two describes what BEPS changes will be covered in the MLI once drafted. Page three lays out three "technical issues" the OECD faces in drafting the MLI, and finally gives the call for input. The discussion is very brief and in OECD-passive-speak so it's almost comical to summarize but here are the three issues, as I understand them:

1. the MLI must be able to modify existing treaties, and this will be done with "compatibility clauses."
2. the MLI will be broadly worded so will require commentary and maybe explanatory notes for consistent interpretation
3. the MLI will be in French and English but will interpret thousands of treaties written in different languages.

These are all very interesting international law issues and not technical tax law issues at all. They are also clear expressions of intent to cement the OECD's role as the principal curator of international tax norms. This is especially clear in respect of point 2, because consistent interpretation means that the OECD commentary and "guidance" must harden ("ossify") into more persuasive and ultimately binding legal authority. For a discussion of what that implies for the rule of law, see this old thing I wrote a long time ago.

Point 1 raises the issue that seems to me most difficult in terms of the transition to complete OECD domination of global tax policy: I am still not sure how the MLI is supposed to work on top of a network of individualized and distinct bilateral agreements among sovereign nations. The OECD says "If undertaken on a treaty-by-treaty basis, the sheer number of treaties in effect would make such a process very lengthy." Indeed it would but as a matter of law in many countries, revising an existing international agreement requires another international agreement that is ratified in the same manner as the original, which appears to require the signatories to come to a meeting of the minds as to the terms that govern their unique relationship. The OECD says that distinguished experts have carefully considered the public international law questions at hand. But I haven't seen any study and I don't quite understand how you get a coherent international tax law regime in anything like a "quick" process. The OECD's implied answer in point 1 only raises another question for me: what is a compatibility clause? Is this a well-understood mechanism in play in other areas of international law? Can I get a precedent somewhere to anticipate where we are going with this?

Further, is the MLI going to be a matchmaking exercise in practice? If country A agrees to revisions 1 through 6 as to countries B and C, but only revision 5 as to country D, and country B agrees to revisions 1-3 for countries A and D but only 5 and 6 for C, and countries C and D agree in principle but never ratify anything, then what, exactly, are the agreements between and among these countries?

I am also not sure what the agreement matrix looks like when there are multiple standards for several of the BEPS items.  Notably the "prevent treaty shopping" minimum standard provides multiple choices for defending treaties against "abuse": a principal purpose test, a limitation on benefits provision, an anti-conduit provision, or some combination. May each of countries A, B, C, and D choose a different combination vis a vis each of the others? It is difficult to see convergence. At the panel I attended in Montreal a couple of weeks ago this was a topic of vigorous discussion. The more I think about this, the increasingly uncertain I become regarding how this is going to work out in practice.

Any thoughts on these observations are welcome as I develop my thinking on these issues. And if you are submitting comments, please note:

 Comments and input should be submitted by 30 June 2016 at the latest, and should be sent by email to multilateralinstrument@oecd.org in Word format (in order to facilitate their distribution to government officials). Please note that all comments received will be made publicly available. ... Persons and organisations who submit comments on this document are invited to indicate whether they wish to speak in support of their comments at a public consultation meeting that is scheduled to be held in Paris at the OECD Conference Centre on 7 July 2016 beginning at 10.00 am.

What does it mean to implement BEPS?

Today I took part in a panel discussing the topic of "Life After BEPS," at which I laid out the three categories of BEPS commitments in three slides. These categories are "minimum standards" (there are four), "recommendations" (there are several) and "best practices" (there are many). These are defined terms in BEPS world but it is already fascinating that there is some category blurring going on in the discourse surrounding implementation. I'm interested in that blurring because of course we are in the midst of a major cycle of law- and norm-making in international tax, and "what countries actually agreed upon" is really going to matter pretty soon, as the difference between convergence and divergence depends on a meeting of the minds at the level of rulemaking. This will play out through conflict and resolution at the domestic and international level in the form of both hard law (multilateral and bilateral agreements and domestic law changes) and soft law (OECD models, guidelines, and peer monitoring). In case they are of interest, I thought I would post my three slides here.

Kill Switches in the New US Model Tax Treaty

I posted previously on the new US Model, which was released in February of this year; I've now posted my article, co-written with McGill PhD student Alex Ezenagu, on the "kill switch" provisions in the new model. These provisions are found in the new articles and definitions involving special tax regimes and subsequent law changes, which would allow countries to switch on and off specified treaty benefits if their treaty partners get too aggressive in the ongoing race to the bottom on tax.

Here is the abstract:

The new US model income tax treaty contains an unusual addition: mechanisms for the parties to unilaterally override the negotiated treaty rates in specified circumstances. Previewed last year in proposed form—a first for Treasury—these new mechanisms work as kill-switches, partially terminating the treaty as to one or both treaty partners. The idea is to forestall a more problematic outcome, such as an enduring breach of one of the parties’ expectations, or the opposite, a complete termination of all the treaty terms in the face of such a breach. Yet embedding a kill-switch in a treaty creates distinct legal, procedural, and political pressures in the tax-treaty relationship that implicate treaty negotiation, ratification, interpretation, and dispute resolution. Kill-switches also communicate a defensive tenor in the tax treaty relationships among many countries. This Article analyzes the new kill-switch provisions and concludes that their introduction in the U.S. Model reflects the steady deterioration of tax treaties from essentially diplomatic documents premised on the good faith of the parties to detailed contracts drafted in anticipation of the opposite.

It has long been assumed that tax treaties are uncontroversially technical agreements that no one outside of tax circles cares about or pays attention to--including, it seems, all too many lawmakers tasked with adopting these agreements into law. But with the US Treasury and the EU competition commissioner trading barbs over the fence about what seems right or fair when it comes to global tax competition and coordination, this assumption might be changing. The consensus built up over decades by OECD nations is under stress as the pressure for coherence in the international tax realm increases. Treasury released these provisions in draft from last fall, expressly in order to influence the OECD's work on BEPS. Now that the provisions are in the model, it remains to be seen how they will play out as BEPS, currently at a mid-cycle of norm making, moves from the articulation of principles to the implementation phase. This article doesn't provide answers or predictions about the future but it examines one aspect of the ongoing contestation and tries to situate it in historical and contemporary terms.

May 4: International Tax Governance in Action at Tilburg University

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
10:30- 11:00	Opening
	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
15:00- 15:30	Break
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.

More details and registration information are here.

Soft Tax Law & Multilateralism: Modifying treaties with anti-BEPS measures

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. 

This is a useful contribution to the discussion and I would like to see more analysis on the OECD's developments, especially from the perspective of nonOECD countries that are being drawn in as BEPS Associates. I would be interested to hear from readers with thoughts on the public international law foundations and precedents, particularly any comparator regimes that I should be thinking about.

New US Model Income Tax Treaty: Now With Kill-Switches!

Treasury issued the new US Model Tax Treaty, via press release: 

​WASHINGTON - Today, the Treasury Department issued a newly revised U.S. Model Income Tax Convention (the “2016 Model”), which is the baseline text the Treasury Department uses when it negotiates tax treaties.  The U.S. Model Income Tax Convention was last updated in 2006.   

“The 2016 Model is the result of a concerted effort by the Treasury Department to further our policy commitment to provide relief from double taxation and ensure certainty and stability in the tax treatment of treaty residents,” said Deputy Assistant Secretary for International Tax Affairs Robert B. Stack.  “The 2016 Model includes a number of provisions intended to eliminate double taxation without creating opportunities for non-taxation or reduced taxation through tax evasion or avoidance,” he added. 

Many of the 2016 Model updates reflect technical improvements developed in the context of bilateral tax treaty negotiations and do not represent substantive changes to the prior model.  The 2016 Model also includes a number of new provisions intended to more effectively implement the Treasury Department’s longstanding policy that tax treaties should eliminate double taxation without creating opportunities for non-taxation or reduced taxation through tax evasion or avoidance.  For example, the 2016 Model does not reduce withholding taxes on payments of highly mobile income—income that taxpayers can easily shift around the globe through deductible payments such as royalties and interest—that are made to related persons that enjoy low or no taxation with respect to that income under a preferential tax regime.  In addition, a new article obligates the treaty partners to consult with a view to amending the treaty as necessary when changes in the domestic law of a treaty partner draw into question the treaty’s original balance of negotiated benefits and the need for the treaty to reduce double taxation.  The 2016 Model also includes measures to reduce the tax benefits of corporate inversions.  Specifically, it denies reduced withholding taxes on U.S. source payments made by companies that engage in inversions to related foreign persons.   

The Treasury Department has been a strong proponent of facilitating the resolution of disputes between tax authorities regarding the application of tax treaties.  Accordingly, the 2016 Model contains rules requiring that such disputes be resolved through mandatory binding arbitration.  The “last best offer” approach to arbitration in the 2016 Model is substantively the same as the arbitration provision in four U.S. tax treaties in force and three U.S. tax treaties that are awaiting the advice and consent of the Senate.  

The 2016 Model reflects comments that the Treasury Department received in response to the proposed model treaty provisions it released on May 20, 2015.  The Treasury Department carefully considered all the comments it received and made a number of modifications to the proposed model treaty provisions in response to those comments.
The Treasury Department is preparing a detailed technical explanation of the 2016 Model, which it plans to release this spring.  The preamble to the 2016 Model invites comments regarding certain situations that should be addressed in the technical explanation for the so-called “active trade or business” test of Article 22 (Limitation on Benefits).  See the preamble page 5.  The deadline for public comments on this subject is April 18, 2016.

Highlights mine. There is much to be discussed in this of course and I will make no attempt to be comprehensive here, but I made a quick comparison doc that might be useful; download here. Just at first glance: can you spot the BEPS? Action 6 is plainly at work, and probably others.

My current interest is in what I am calling the new "kill-switch" provisions, the special tax regime (art 3, 11, 12, 21, 22) and subsequent law changes (art 28) provisions alluded to in the bold highlighted text above. I'm working on a paper on this subject and will have more analysis soon.

Parada: Legal Questions Surrounding FATCA-based Agreements in Europe

Leopoldo Parada has recently posted on SSRN an article published last summer in the World Tax Journal, entitled Intergovernmental Agreements and the Implementation of FATCA in Europe, of interest. Here is the abstract:

FATCA is a US domestic tax policy that requires Foreign Financial Institutions around the world to provide the IRS information regarding their US clients. Recognizing this extraterritorial characteristic and the troubles associated with it, the US Treasury Department developed the Intergovernmental Agreements (IGAs), which have served the double purpose of coordinating FATCA at an international level and influencing the new international standards on automatic exchange of information. Nevertheless, the IGAs are instruments that still need to be improved, at least in order to guarantee their successful implementation in Europe. The first part of this article explores the legal nature and the characteristic of the IGAs, concluding that they possess an asymmetriclegal nature that can lead to conflicts of interpretation. Likewise, it concludes that their contribution toward international transparency is incompatible with the existence of other instruments in Europe that seek the opposite goal of protecting bank secrecy, although it recognizes the importance of the most recent achievements at the European level in order to ensure a coherent and consistent system of automatic exchange of information. The second part of this article analyses three grey areas in the IGAs implementation process in Europe (i.e., “quoted Eurobonds” in the United Kingdom; group requests under the Switzerland-United States IGA, and the “coordination timing” provision of the IGA Model 1A), concluding that there is still work to be done in order for the IGAs to grant an acceptable level of reciprocity in practice.

I was not aware of this article when I wrote on a column last fall on this very same topic, in which I called the IGAs "Hybrid Tax Agreements" and pointed out the mess created by their unprecedented legal form as treaties to the rest of the world but administrative guidance in the United States. Parada's article goes further in the analysis and lays out a number of enduring difficulties. It seems to me that governments are simply ignoring these difficult issues as inconvenient barriers to desired outcomes and courts will face the same temptation. But I don't think these issues go away with time and gradual acceptance of FATCA as an institution. Instead, I think the issue will cause systemic problems going forward, both in terms of raising endless conflicts of law, and in terms of the precedent set for international tax relations by the failure of states to challenge US exceptionalism even as it tramples on law and legal process throughout the world.

Apple's private meeting to lobby the European commissioner in state aid investigation

The FT reports that Tim Cook took it upon himself to go and visit the European commissioner Margrethe Vestager, "to lobby the EU’s antitrust chief weeks before she is set to rule on a landmark case that could force the California-based technology company to pay billions in underpaid taxes to Ireland." Really? Let's see, this is a private meeting with a person who is in charge of deciding whether your company benefited from a scheme to violate an agreement among EU members on trade practices within the internal market.

Pretty clearly the Commissioner should have flatly refused such access. I don't know what the rules are for private parties to attempt to influence a sitting Commissioner in the midst of a procedure laid out in an international treaty that directly impacts one's pecuniary interests. Apple is not a party to a case; rather it is a beneficiary of something Ireland did, and that it the action being investigated. But Apple has had a chance to make its statements and explanations according to a process. According to the EC, the formal investigation procedure accords an opportunity for input from all those that may be affected by its investigation:

The Commission is obliged to open a formal investigation under Article 108(2) TFEU where it has serious doubts about the aid's compatibility with EU State aid rules, or where it faces procedural difficulties in obtaining the necessary information. 

The decision to initiate this procedure is sent to the relevant Member State. It summarises the factual and legal bases for the investigation and includes the Commission's preliminary assessment, outlining any doubts as to the measure's compatibility with EU state aid rules. The decision is published in the EU's Official Journal, and Member States and interested third parties have one month from the date of publication to submit comments. The Member State concerned is in turn invited to comment on observations submitted by interested parties.

I have not seen comments submitted by Apple according to this procedure. It seems to me that the private meeting has an appearance of impropriety. First, it was private so it does not form part of a record of information reviewed in the course of the investigation. Neither party has given any public comment regarding what was discussed. Having a private meeting deprived Ireland of its role in responding to observations submitted by interested parties, as described above. The conversation took place for the specific purpose of influencing a decision. The conversation raises the question of whether others have also private meetings, also trying to influence the commissioner beyond the procedures laid out for investigations.

I note that "All decisions and procedural conduct of the Commission are subject to review by the General Court and ultimately by the ECJ." The Commissioner will not likely seek review of its own decision. I do not know whether other member states could seek such a review. It seems most likely that Ireland could seek a review, which it would only do if the decision was unfavorable. If that were to happen, would Tim Cook also have private meetings with the judges of the ECJ?

I should hope not.

Uncle Sam Wants...Who? At UBC Law This Week

This week I will be in Vancouver to present a paper at the UBC Allard School of Law. The paper, "Uncle Sam Wants...Who? A Global Perspective on Citizenship Taxation," is now available in draft form on SSRN. Here is the abstract:

Across the globe, banks are flagging accounts with indicia indicating their owners may be “US Persons,” making it possible for the United States to enforce its taxation of nonresident citizens extraterritorially for the first time in history. The indicia method constitutes a mining expedition for US citizens carried out by foreign banks and governments. Establishing a tax jurisdiction in this manner is unprecedented and has significant practical and normative consequences. In the case of so-called “accidental Americans,” it violates one of the most fundamental and universally- acknowledged tenets of taxpayer rights, namely, the right to be informed about what the law requires. Third party indicia-searching should be universally rejected as a means of identifying a taxpayer population. Instead, the United States itself is responsible for cataloguing, informing, and educating its global population of taxpayers. Those who don’t belong in the system should be allowed to opt out without cost.

I welcome comments on this work in progress.

Brunson on Enforcing Foreign Tax Judgements: Kill the Revenue Rule

The revenue rule is a common law rule that holds that one country will not enforce the tax debts imposed on its people by a foreign sovereign. The revenue rule prevents US courts from enforcing foreign country tax liens, which prevents assistance in collecting taxes for other governments under tax treaties. Samuel Brunson has posted a paper on this topic entitled Accept this as a Gift: Unilaterally Enforcing Foreign Tax Judgments, of interest. Abstract:

Current U.S. law treats foreign tax judgments differently than other foreign civil judgments, prohibiting U.S. courts from recognizing and enforcing the former, even though they recognize and enforce the latter. In this article, Brunson argues that there is no compelling reason for this different treatment and that it is ultimately detrimental to the government’s revenue collection. As long as the revenue rule continues to prevent the United States from enforcing foreign tax judgments, the nation cannot enlist foreign help in reducing the foreign tax gap; other countries will only collect U.S. tax judgments if the United States reciprocally collects their tax judgments. The revenue rule also allows foreign persons to hide their assets in the United States, effectively turning the United States into a tax haven. For the sake of reducing the international tax gap and for the sake of international tax justice, the United States must revoke the revenue rule.

Filed Today: Lawsuit challenging constitutionality of FATCA in Canada

Noted Canadian constitutional lawyer Joseph Arvay filed suit today to challenge the constitutionality of Canada's implementation of FATCA. The statement of the claim is laid against the Attorney General of Canada in the Federal Court of Canada. It seeks a declaration by the Court that the relevant parts of recently enacted Bill C-31, referred to as the "Impugned Provisions," are beyond Parliament's authority and of no force and effect under the Constitution. The claim makes four claims about Canada's attempt to implement FATCA:

(1) it violates the Constitution by creating federal power over a provincial domain;
(2) it violates s. 7 of the Charter, guaranteeing individual rights to life, liberty & property;
(3) it violates s. 8 of the Charter, preventing unreasonable search & seizure; and
(4) it violates s. 15 of the Charter, prohibiting discrimination based on national origin etc.

The complaint concludes that none of these infringements can be justified by section 1 of the Charter, which provides for only "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

The lawsuit is the product of efforts by a small, grassroots group formed for this purpose, calling themselves the Alliance for the Defence of Canadian Sovereignty. They have issued a press release, here. The two named plaintiffs are taking a major risk in being exposed as "non-compliant US Persons" in this lawsuit. On the other hand the IRS may not wish to get in the middle of this fight and prove the plaintiff's case, which is succinctly stated here.

I look forward to following the case, which I expect to wind its way toward the Supreme Court. As I've said many times, there are massive problems with FATCA that have nothing to do with tax evasion and everything to do with the basic injustice that is citizenship taxation and all global efforts to enforce it for the US. The US Congress is reluctant to act on this antiquated and unjust regime and the IRS must plow ahead, as I explained recently. But that certainly does not mean that other countries must do the job of the IRS, most especially when doing so is inconsistent with their own laws.

Rosenzweig: An Antigua Gambling Model for the International Tax Regime

Adam Rosenzweig recently posted An Antigua Gambling Model for the International Tax Regime. Here is the abstract:

The international tax world is facing a defining moment. While there is little agreement on anything within the field, there appears to be a growing consensus that the modern international tax regime — the so-called flawed miracle emerging from World War II — is irrevocably broken. As the countries of the world confront the challenges facing the international tax regime in the next century, new models for an institutional framework for international tax become increasingly crucial to its success. While significant progress has been made in developing underlying norms to serve as the basis for a modern international tax regime, less focus has been paid to building the institutions and structures necessary to implement these norms. To this end, this Essay proposes looking to the recent experience of the WTO in the Antigua Gambling case as a model for a new institutional framework for the new international tax regime. The Essay then proposes three potential ways to do so: (1) the creditable gross-withholding tax method, (2) the extraterritorial excise tax method, and (3) the WTO cross-retaliation method. 

By serving as an example of how to balance the needs of larger, wealthier countries and smaller, poorer ones, the Antigua Gambling model could help overcome one of the largest obstacles confronting the development of a modern international tax regime. Perhaps an Antigua Gambling model could serve as the basis for a new institutional framework for international tax.

Ambitious, and on my to-read list.

Bruce Zagaris on US Perspectives on Information Exchange

Bruca Zagaris has a two-part article on U.S. policies on the exchange of information in tax matters, published  by Tax Analysts on June 9 and  June 17, of great interest (but gated, unfortunately). He provides an overview of the applicable treaties (bilateral and MAATM), TIEAs and IGAs, and discusses the various forms of information exchange. He gives a nice level of detail on how information exchange requests are processed in the US and how the US achieves its information goals vis a vis other countries. He goes through the legal structures and the developments at the OECD and EU. He then provides a series of detailed hypotheticals focusing in on US information exchange policy with respect to Latin America. Bruce is very clear about the lack of reciprocity that characterizes the US position toward information exchange and notes, rightly, I believe, that this position is sure to lead to conflict going forward.

His conclusion is rather bleak but I don't disagree with anything he is saying. Here are a few excerpts:

The U.S. budgetary problems, the pay-as-you-go system, the revenue estimates obtained for the anti-tax-haven bills, and the proclivity of some members of Congress to focus on tax enforcement and compliance directed at U.S. taxpayers concealing money abroad ensures that the anti-tax-haven bills will constantly be appended to appropriations legislation in this session of Congress and in future sessions. There are so many anti-tax-haven initiatives and the lack of actual reciprocity by the U.S. government, as opposed to the rhetoric, may well lead to dispute resolution proceedings soon and to disagreements within the international initiatives of the OECD and FATF, as a result of the perceived lack of a level playing field. 

A global trend toward criminalization of tax compliance and enforcement will continue.... Governments will continue to try to privatize tax enforcement by deputizing FIs and service providers regarding reporting, ethics, and a range of other requirements. Criminal investigations and prosecutions of noncompliant institutions and service providers will continue. 

... Disagreements are likely to continue among the OECD and developing countries about the proper financial architecture, not only in tax policy, but also financial regulation. If possible, the G-8 countries will try to continue to centralize decision-making in elite informal groups, such as the G-20, the Financial Stability Forum, and the OECD and the groups it controls, such as the Global Forum on Taxation. 

... OECD and Latin American governments, including the United States, Argentina, Mexico, and Brazil, will continue to impose sanctions through blacklists and countermeasures against small financial center jurisdictions, both unilaterally and through international organizations (for example, the OECD and IMF) and informal groups (for example, G-20, FATF, and Financial Stability Board), even though small-state offshore financial centers do a much better job of enforcing the prohibition on anonymous companies and bank accounts than do large OECD countries, and the United States is the main offender in failing to enforce the international standards prohibiting anonymous companies 

The biggest potential impediment to the United States achieving its global tax priorities is the political gridlock, especially regarding the budget, spending, raising taxes, and raising the debt limit. ... 

The upshot of globalization and increased penalization of international tax and money movement flows is increased pressure on financial intermediaries, including lawyers, trust companies, banks, accountants, and other wealth management professionals who must advise clients. Increasingly, tax authorities, law enforcement, and regulators will be acting to obtain information and bring administrative and criminal cases for reporting violations, nonpayment, nonfiling, and allegedly fraudulent activities, or conspiracy to do the same.

All in all this is a tremendous resource for anyone wanting to understand information exchange from the US perspective. I hope that others will undertake similar analyses for other countries, so that we can start to understand what tax information exchange actually looks like now, and what it will likely look like going forward. The combination of non-reciprocity, a starved administration, and political gridlock in the US with a continued policy jealousy on the part of the US and its close "elite" allies that Bruce describes portends deep trouble ahead for the rest of the world, especially as these countries continue to reserve their own rights to act as tax havens.

The World According to FATCA, In 3 Maps

As of 8 June 2014, this is the world according to FATCA:

Countries that have actually signed an intergovernmental agreement.

Countries treated as having signed an intergovernmental agreement.

Countries with no agreement, actual or implied; FATCA applies unilaterally.

There really isn't any doubt that some of the poorest countries in the world will be most unfairly treated in any multilateral regime for global information exchange which excludes the United States because it acts unilaterally to attain solely its own goals, with no regard for the price others must pay or the appropriateness of imposing that cost where no wrong has ever been accused much less proven.

Prof. Karen Brown wrote an important and influential article in 2002 called Missing Africa on the topic of US tax and trade policy toward developing countries in general, Sub-Saharan Africa in particular. Her article starts with a quote: "We're the... United States. Do we need Africa?"' (from a former World Health Organization official who resigned over the lack of commitment to control AIDS in Africa).

Here the pattern repeats itself: even if they wanted to, many of the countries in the third map cannot forestall the present threat of economic sanctions. The United States simply doesn't need them. Yet many, many of these countries suffer far more from bank secrecy provided by the US and elsewhere than the other way around.

The unjustified and virtually-ignored perfection of US citizenship taxation is one part of FATCA's unexamined legacy, the dismantling of comity in international taxation another; so, too, the repeated exclusion of the developing world from an institutional order that is becoming increasingly unjust.