bluuebunny/crossref_metadata_2025_split huggingface dataset:
Administrative Capability Analysis of OECD Proposals from the Perspective of Developing Countries
Authors: Castro Adriana Sánchez 
Published: February 2022

On 13 February 2019, the OECD released the document ‘Addressing the Tax Challenges of the Digitalisation of the Economy Public Consultation Document’ and requested general and specific comments ranging from technical to policy aspects. Under the first pillar, the document revisited the profit allocation and nexus rules with primarily three different actions: the user participation proposal, the marketing intangibles proposal, and a proposal to update the standard of ‘physical presence’ with a ‘substantial economic presence’ concept. The second pillar, which is focused on the remaining base erosion and profit-shifting (BEPS) issues sets forth an income inclusion rule and rules for the taxation of tax eroding payments.
This article analyses these proposals from the perspective of developing countries including low income economies (LIEs), lower-middle income economies (LMIEs) and upper-middles income economies (UMIEs) as classified by the World Bank. Emphasis is given to the administrative capability issues that are present in all of them rather than fairness or efficiency parameters. The analysis suggests that both the value creation and the marketing intangibles proposals could not be easily administered in these developing countries nor are the proposals compatible with their legal systems.
The analysis developed in this article suggests that the preferable reform to tackle the remaining BEPS issues for developing countries is a tax on base eroding payments such as the global anti-base erosion proposal described in Pillar 2 of the consultation document that is similar to the base erosion anti-abuse tax (BEAT) recently enacted in the United States. However, this alternative minimum tax (AMT) should be paired with a significant economic presence (SEP) to tackle the challenges of the digitalization of the economy under Pillar 1.
Finally, a much simpler BEAT-like or AMT for developing countries is delineated further in the article if this option is to be administrable in jurisdictions with limited resources to enforce it.
international taxation, developing countries, global minimum tax, OECD, base erosion, profit shifting, digitalization, administrable, BEAT
Double Taxation Resulting from the ATAD: Is There Relief?
Authors: Soom Annika 
Published: February 2022

Pursuant to the preamble of the Anti-Tax Avoidance Directive (ATAD), its primary purpose is to combat abusive practices in the EU and ensure that tax is paid where profits are generated without undermining the functioning of the internal market through double taxation (ATAD, recitals 1 and 5). Regardless of the aim of avoiding the creation of a double tax burden on taxpayers, the ATAD does not obligate Member States to effectively eliminate the aforesaid burden. It is, therefore, a taxpayer’s responsibility to identify the correct source of law for providing relief from double taxation.
This article focuses on the double taxation that is caused by the implementation of the ATAD and identifies the correct source of law, if possible, to provide relief for such double taxation. As the potential sources of law, the OECD MC (OECD Model Tax Convention on Income and on Capital 2017 (Full Version) (OECD Publishing 2019)), and European Union legislation have been analysed. The scope of this article is limited to the rule on interest deduction limitation and controlled foreign company (CFC) rules as provided in the ATAD.
ATAD, anti-tax avoidance directive, interest deduction limitation rule, CFC rules, double taxation, European Union, OECD, economic double taxation, juridical double taxation
The Vagueness of Tax Fairness: A Discursive Analysis of the Commission’s ‘Fair Tax Agenda’
Authors: Pirlot Alice 
Published: February 2022

Unless treaties are read in very liberal terms, the European Union (EU) is not competent for defining the construct of a fair tax system and determining who should pay taxes and in which proportion within the EuropeanUnion.Yet, the European Commission has increasingly been using references to tax fairness in its tax policy discourse. This raises questions on the future of EU tax law, the commission’s role in responding to European citizens’ concerns, and achieving tax fairness.
By exploring six case studies, this contribution argues that the commission’s narrative on tax fairness remains vague and ambiguous which might indicate that it is not taking tax fairness – as a procedural and/or distributive issue – seriously. The commission uses fairness somewhat loosely to cover three main types of objectives including trade objectives that differ from what has traditionally been linked to tax fairness in the political philosophy literature. Building upon the work of legal scholars and economists, this article then concludes that the commission’s ‘fair tax’ agenda will, at best, achieve objectives in terms of procedural fairness.
International Corporate Tax Regime Post-BEPS: A Regulatory Perspective
Authors: Gadžo Stjepan , Jozipovic Šime 
Published: February 2022

Among the other rationales underlying the existence of corporate income tax (CIT) as a standalone tax on the profits derived by legal entities, some scholars have underlined its regulatory function, i.e. its potential to steer the behaviour of private sector actors. In this regard, it has to be noted that significant constraints on the use of CIT as a regulatory tool have emerged in the aftermath of the base erosion and profit shifting (BEPS) project. One example may be found in the new ‘modified nexus approach’ with regard to tax incentives for R&amp;D activities. This article takes a regulatory perspective regarding the recent attempts to overhaul the ‘international corporate tax regime’, resulting in the adoption of new hard- and soft-law rules. The regulatory perspective is understood here as the capacity of the rules of international tax law to affect the behaviour of both corporate taxpayers in arranging their cross-border activities and the States in designing their CIT systems. The BEPS initiative, being an unprecedented exercise in tax coordination aimed at widespread avoidance practices, serves as a prime example of how international tax law fulfils its regulatory function, by guiding the behaviour of both governments and taxpayers. Accordingly, the paper argues that the international corporate tax regime post-BEPS exhibits two sides of the same regulatory coin: on the one hand, taxpayers are disincentivized to resort to particular types of international tax planning; on the other, the incentives for individual States to engage in corporate tax competition are significantly reduced. It is further argued that the most far-reaching proposal in this area relates to ‘global minimum tax’, drawn under Pillar Two of the ‘BEPS 2.0’ initiative.
international tax law, tax competition, regulatory taxation, tax incentives, tax avoidance, BEPS, global minimum tax.
VAT Treatment of Cryptocurrency Intermediation Services
Authors: Ehrke-Rabel Tina , Zechner Lily 
Published: February 2022

The bitcoin blockchain was construed as a self-regulating system that would eliminate financial institutions serving as trusted third parties. Instead however, various new intermediaries emerged carrying out economic activities related to the blockchain. The most common 'gateways' are cryptocurrency exchange platforms and wallet providers. Moreover, bitcoin's main purpose has shifted from means of payment to speculation. In this article, the authors assess how the mentioned gateways are to be treated for value added tax purposes and challenge the Hedqvist-decision of the European Court of Justice against the backdrop of how bitcoins are being used today.
Bitcoin, Ethereum, blockchain, cryptocurrency, token, exchange platform, wallet provider, intermediation, agent, undisclosed agent
The Digital Consumption Tax
Authors: Avi-Yonah Reuven , Fishbien Nir 
Published: February 2022

Amid rising tension between the United States and France over the Digital Services Tax (DST), this article propositions the imposition of a Digital Consumption Tax, rather than the gross-receipts DST. The Digital Consumption Tax is not a new tax. It is a consumption tax (i.e. Value-Added Tax, or VAT, in Europe and sales tax in the United States) that is imposed on digital transactions. Such consumption tax would be applied on the seemingly free interaction between Facebook (and other companies alike) and its Users. This interaction, under which Users gain access to the Facebook platform for ‘free’ – should be treated as a barter exchange, where Users pay a deemed monthly subscription fee for the right to access the platform, and Facebook pays a deemed royalty-like payment to Users for the right to use data collected on them by such platform, and for the right to show targeted advisements on the platform. The main proposition of this article is that these deemed payments – the deemed subscription fee and the deemed royalty-like fee – are equal and offset each other, resulting in the current ‘free’ interactions that are taking place in the market. The immediate implications is that general principles of consumption tax that apply to barter exchanges should result in a ‘new’, uncollected, tax liability to Facebook, because the deemed subscription fee (as received by Facebook) should be subject to consumption tax (VAT or sales tax) in the country or state where service is consumed – where the individual User resides.
Consumption Tax, Value-Added Tax, Digital Service Tax, Facebook, France, United States, Sales Tax
The Use of Paragraphs 1.119 to 1.128 of the 2017 OECD Transfer Pricing Guidelines for the Application of Transfer Pricing Rules
Authors: Durán Rojo Luis , Nina Paul Nina 
Published: February 2022

This article aims to analyse the paragraphs 1.119 to 1.128 of the 2017 OECD Transfer Pricing Guidelines and their relation to the comparability analysis, sham transactions and domestic anti-avoidance rules. For this purpose, the authors discuss the nature of the transfer pricing rules, the limits of the OECD transfer pricing guidelines to the application of transfer pricing rules and the main features of the comparability analysis, sham transactions and the anti-avoidance rules. It is concluded that part of these paragraphs contains recommendations that exceed the purpose of the transfer pricing rules when they are structured over the arm’s length principle.
OECD Transfer Pricing Guidelines, arm’s length principle, transfer pricing rules, comparability analysis, sham transactions, anti-avoidance rules.
Case Law Note: CJEU: Developments on VAT Exemptions in 2019
Authors: Yiallourou Kyriaki 
Published: February 2022

This article presents a comprehensive overview of the recent case-law developments on value-added tax (hereinafter VAT) exemptions delivered by the Court of Justice in the European Union (hereinafter CJEU). During 2019, the CJEU was asked in a series of eight cases to interpret the exemptions established under Articles 132 and 135 of the VAT Directive. Three cases examine the VAT exemption on financial services whilst two cases address the immovable property exemption. The remaining cases inspect the VAT exemptions for the supply of medical care services, postal services, and the provision of services by autonomous groups of people to their members. This article summarizes the eight judgments rendered by the CJEU and analyses their potential impact on the European Union VAT framework.
VAT, VAT exemptions, CJEU, financial services, immovable property, merit exemptions, case-law.
COVID-19 and Fiscal Policies: Tax and Fiscal Policy in Response to the Coronavirus Crisis: Strengthening Confidence and Resilience
Authors: O’Reilly Pierce , Perret Sarah , Dender Kurt Van 
Published: February 2022

The outbreak of COVID-19 has resulted in a health crisis and a severe decline in economic activity that are without precedent in recent history. This article first provides an overview of the tax and fiscal policy responses adopted in response to the health and economic shock caused by the COVID-19 pandemic. Countries have responded firmly, focussing on liquidity and household income support. Next, adopting a forward-looking perspective, the article discusses how tax policy could evolve, as containment measures are maintained and start being phased out. It suggests a strong need for continued support, adapting to the changing nature of risks, and for stimulus to encourage economic recovery once the crisis abates. Lastly, some options to restore public finances post-crisis are explored.
COVID-19, taxation, fiscal policy, liquidity, solvency, stimulus, fiscal consolidation.
COVID-19 and Fiscal Policies: Solidarity in the European Union in the Time of COVID-19: Paving the Way for a Genuine EU Tax?
Authors: Traversa Edoardo , Bizioli Gianluigi 
Published: February 2022

A study of the European Union financing structure shows a disjunction between the EU taxing powers and the rules determining the resources funding the EU budget. Such a disconnection has deep historical roots, however, currently constitutes an obstacle towards the achievement of a sustainable Economic and Monetary Union. At the same time, the emergence of the solidarity principle in EU law is tangible proof that, in certain circumstances, the European Union also has as one of its objectives to grant financial assistance to Member States in distress. However, from a legal perspective, the current institutional framework needs reform in order to effectively serve this purpose, considering the magnitude of the economic consequences of the current pandemic. In this context, the debate on the adoption of truly European taxes must be relaunched.
EU budget, tax solidarity, EU taxes, EMU, fiscal policy, EU tax competences, COVID-19.
COVID-19 and Fiscal Policies: Unnecessary and Yet Harmful: Some Critical Remarks to the OECD Note on the Impact of the COVID-19 Crisis on Tax Treaties.
Authors: Moreno Andrés Báez 
Published: February 2022

The COVID-19 pandemic has restricted freedom of movement and imposed forced, or at least unplanned, displacement. Insofar as the International Tax Regime continues to be based on the physical presence of individuals, this has led to unexpected and often undesirable tax consequences. The reaction of the OECD Secretariat to this situation has been to issue a note claiming, in essence, that everything remains the same. This article critically approaches that note by exposing its general methodological flaws and analysing each of the four specific aspects to which it refers: Permanent Establishments (PEs), Place of Effective Management (POEM), Cross-Border Workers and Residence of Individuals.
Double taxation conventions, COVID-19, residence, permanent establishment, agents, services-permanent establishment, place of effective management, cross-border workers, tie-breaker rules.
New Taxing Right in the Unified Approach: Old Wine in a New Bottle
Authors: Cai Qiang , Cerioni Luca , Li Xiaorong (Sharron) 
Published: February 2022

The OECD’s ‘Unified Approach’ (UA) features new taxing rights allocated to market jurisdictions irrespective of the existence of physical presence. While this new taxing right is intended to address tax challenges of a new economic pattern, i.e. the digitalization of the economy, these authors note that similar challenges already existed even before the era of digitalization, particularly with respect to the attribution of profit to the dependent agent permanent establishment (DAPE). The authorized OECD approach (AOA), which hinges the profit attributable to a DAPE upon the significant people function performed by the dependent agent (DA), has been heavily criticized. In this regard, the UA provides a more reasonable and simplified solution: the source state is entitled to tax at least a portion of the residual profit made by the non-resident enterprise from the business undertaken in that state through the DAPE regardless of the extent of the functions performed by the DA enterprise. This approach has indeed already been implemented by certain countries in their domestic tax practice regarding the DAPE profit attribution, albeit couched in traditional transfer-pricing terms. At the same time, these domestic tax practice on the DAPE profit attribution may enlighten the improvement to the UA that has been criticized for its complexity and uncertainty.
Tax challenges of the digitalization of the economy, unified approach, new taxing right, dependent agent permanent establishment, profit attribution to a dependent agent permanent establishment, authorized OECD approach, benefit principle, destination-based transfer pricing methods
A General Income Inclusion Rule as a Tool for Improving the International Tax Regime – Challenges Arising from EU Primary Law
Authors: Schmidt Peter Koerver 
Published: February 2022

The overall concept of the OECD’s Global Anti-Base Erosion Proposal is to develop a coordinated set of rules to address ongoing risks from profit shifting and to curb international tax competition. Two important components of the proposal are the income inclusion rule and the switch-over rule and, in this article, these components are examined in consideration of EU primary law. Depending on the final design of the rules, it is concluded that the proposed income inclusion rule – however, probably not the switch-over rule – may end up restricting the fundamental freedoms by treating comparable situations differently. Against that background, a number of policy options for designing the income inclusion rule in accordance with primary EU law requirements are presented, and pros and cons of these design options are discussed.
Global anti-base erosion proposal (GloBE), EU tax law, fundamental freedoms, tax avoidance, tax competition, tax policy
Tax In History: The Italian Statute of Taxpayers’ Rights: State of the Art 20 Years after Its Enactment
Authors: Sartori Nicola 
Published: February 2022

The Italian Bill of Taxpayers’ Rights (so called Taxpayers Statute) is twenty years old. Even if it is formally a primary law, its provisions are deemed to be general principles of the Italian tax system that directly derive from the Constitution. This is why it is the most important set of Italian tax rules. The Statute not only recognizes the main taxpayers’ rights, but also provides guidance to both the legislature and tax authorities in tax matters. It dramatically changed the relationship between tax authorities and taxpayers.
During the twenty-year period since its enactment, the effectiveness of the statutory provisions has increased and changed. This is primarily because of the fundamental role of the Supreme Court, that has been a key player in the recognition of taxpayer rights and might also have a fundamental role in the future. The Taxpayers Statute and the literature encouraged the Supreme Court toward an innovative way of thinking and approaching tax cases by looking not only at taxpayer duties but also at their rights.
Italian Taxpayers Statute, constitutional tax principles, taxpayers’ rights, bona fide principle, ‘state of the reasons’ duty, provocatio ad opponendum doctrine, right to be heard, legitimate expectation doctrine, tax ruling, general anti avoidance rule.
What Should Be the Scope of the Beneficial Owner Concept?
Authors: Janssen Jeroen J.M. , Garibay Mónica Sada 
Published: February 2022

In this article, the authors present their considerations regarding the differences between the OECD beneficial owner concept and the interpretation and use that the European Court of Justice has given to it in the so-called Danish Cases, including the recent European tendency to use it as an anti-abuse instrument. The authors analyse the implications of both approaches for recipients that are, for example, parties to (secured) financial transactions, limited recourse loans, or prescheduled repayment schemes in private equity structures. The authors conclude that a recipient can both be and not be the beneficial owner of an item of income depending on whether the OECD beneficial owner concept or the interpretation and use of the European Court of Justice are followed. In the view of the authors, the more ‘economic’ approach of the European Court of Justice in respect of the beneficial owner concept leads to legal uncertainty in bona fide transactions.
Beneficial owner, OECD, Danish cases, abuse, financial transactions, private equity, tax treaties, EU law, limited recourse loan, anti-avoidance
Skandia America and VAT Grouping in Spain
Authors: Llopis Estefanía López 
Published: February 2022

For the first time since the publication of the Court of Justice of the European Union’s (CJEU’s) decision in Skandia America, a Spanish administrative authority has spoken out explicitly about the impact of such a judgment on Spain. With its resolution, the Spanish administrative authority reopened a closed debate when pointing out that it would be totally inadmissible to reject the application of the Skandia America case to the Spanish legal system only as a result of the particular manner that Article 11 of the VAT Directive has been implemented by the Spanish legislator. This article analyses the problems and doubts concerning the application of the Skandia America judgment to VAT groups constituted under the Spanish VAT Act. To do so, this article performs a three-step analysis. First, the arguments presented by the CJEU to justify its decision in such a judgment are reviewed. Secondly, the author provides a description of the VAT grouping scheme that is applicable in Spain. Finally, the attention is focused on the reasoning offered by the Spanish administrative authority in its resolution to support the fact that the Skandia America judgment is fully applicable to VAT groups located in Spain.
EU Law, VAT Directive, VAT grouping, branch, fixed establishment, head office, supply of services, single taxable person, intra-group transaction, principle of subsidiarity.
Revising the Fiscal and Social Security Landscape of International Teleworkers in the Digital Age
Authors: Niesten Hannelore 
Published: February 2022

The challenges of digitalization – exacerbated by the COVID-19 crisis – provide an excellent case study in which the fiscal and social security landscape of international teleworkers can be subjected to a critical evaluation. This contribution discusses whether and how policymakers should consider adapting the longstanding tax and social security rules and principles for tele-employment to new working practices created by digital developments in a globalized economy. Various elements make the traditional assimilation of the source state to the (performance of) activity state no longer suitable to tackle the challenges in the digital economy. The special focus lies on a critical comprehensive, in-depth evaluation of the interpretation and application problems with regard to (1) the place of exercise of employment of international teleworkers for the allocation of taxing rights for employment income, (2) the creation of a permanent establishment for the employer by teleworking from home (i.e. home office) or contract conclusion in the homes of employees/agents, (3) the loss of personal and family tax benefits, and (4) the affiliated (dis)coordination between the tax allocation rules (double tax treaties) and the social security law rules (Regulation (EC) No 883/2004). These issues matter even more considering the tax implications and potential new burdens arising due to the economic effects of the COVID-19 pandemic crisis under which teleworking is – at least temporarily – the new normal. Suggestions are made regarding the tax jurisdiction over employment income of international teleworkers and effective coordination between fiscal and social security law.
Telework, digitalization, physical presence, discoordination between taxation, social security.