International Taxation

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International Taxation

Munawar Zaman

The past decade has witnessed the creation of a new international tax regime. The trilemma of open borders, tax competition and satisfying voters’ demand for social insurance culminated in the financial crisis of 2008–09, where many countries were forced to implement austerity measures at the same time that parliamentary hearings, leaks and media reports revealed that rich individuals and large corporations were paying very little tax on cross-border income. The results over the past decade have been the creation of a new international tax regime designed to curb both tax evasion by the rich and tax competition among countries seeking to attract business activity within their borders by granting various preferential tax provisions to multinational enterprises.

The 21st-century world economy is not only more complicated and dynamic but also highly integrated. National economies have moved closer and become virtually borderless due to the rapid movement of resources from one country to another because no country is self-sufficient in all resources to produce all goods and services. There is simultaneous movement of goods and services across borders. It won’t be an exaggeration to call the world a “global village”. The concepts of cross-border transactions, Multinational Corporations (MNCs) and Non-Residents have gained popularity and practical relevance. This free movement of goods, services and capital has important implications for both direct and indirect taxation which led to the emergence of “International Taxation”.
Introduction
Globalization is the “increasing internationalization of markets for goods and services, the means of production, financial systems, competition, corporations, technology industries.” The economic changes associated with globalization tighten financial pressures on governments of high-income countries by increasing the demand for government spending while making it more costly to raise tax revenue. Greater international mobility of economic activity, and associated responsiveness of the tax base to tax rates, increase the economic distortions created by taxation.
Original international tax regime
The original international tax regime was created a century ago by the League of Nations. Until the 1980s, it functioned reasonably well and prevented most instances of double taxation and double non-taxation by allocating cross-border income between home and host jurisdictions based on a compromise reached in 1923. However, since the advent of globalization in the 1980s and digitalization in the 1990s, the original international tax regime ceased to function as intended. The main problems were the increased mobility of capital related to increased intangibility and digitalization, together with a relaxation of capital controls and increased tax competition. These developments posed a problem for countries that wished to leave their borders open to reap the benefits of globalization and to engage in tax competition to attract investment. The outcome was a significant fall in tax revenues that threatened the social safety net of the modern welfare state.
What is international taxation?
There is no definite concept of “international taxation”. However, attempts have been made to define the term. Kevin Holmes described International Taxation as “the body of legal provisions of different countries that covers the tax aspects of cross-border transactions.” It is concerned with Direct Taxes and Indirect Taxes. In other words, it is an area of knowledge pertaining to the International aspects of tax laws and global tax treaties.
At the onset, it is important to note that there is no codified international tax law. There are no generally accepted taxation laws by all countries. Further, there is no separate court to interpret international tax regime. There are provisions in domestic taxation laws of the countries to handle cross-border direct and indirect taxes. Nations make attempts to reconcile domestic taxation laws for cross-border transactions by way of taxation treaties.
International taxation principles
The maze of international taxation can often intimidate. Several guiding principles determine how income earned across borders gets taxed, each contributing to the intricate tapestry of international taxation. We’ll illuminate this complex subject by exploring four essential principles – residence and source-based taxation systems, tax treaties, transfer pricing, and the taxation of controlled foreign corporations.
Residence and source-based taxation systems
The residence-based system taxes residents on their worldwide income, regardless of where they earned that income. For example, a US citizen residing in Spain would still be obliged to pay US taxes on his global income.
Contrarily, the source-based system taxes income where it is earned. If a foreign corporation operates and makes a profit in Country A, those profits would be subject to tax in Country A, even if the corporation is based in Country B. These two principles create a need for mechanisms to prevent unfair double taxation.
Tax treaties to prevent double taxation
Tax treaties, also known as double taxation agreements (DTAs), play a vital role in preventing the same income from being taxed twice. DTAs are bilateral agreements between two countries that define which taxes are covered, who is a resident, and how taxing rights on different types of income get divided between the countries. They provide clarity, predictability and often contain provisions to resolve disputes, making cross-border trade and investments more feasible and less risky.
Transfer pricing and its importance
Transfer pricing refers to the rules and methods for pricing transactions within and between enterprises under common ownership or control. It’s a critical principle in international taxation because multinational enterprises (MNEs) often transfer goods, services or intangible property among their group entities.
The importance of transfer pricing lies in its potential for profit shifting. Without appropriate regulations, MNEs might manipulate their internal prices to shift profits to low-tax jurisdictions, thereby reducing their overall tax liability. To combat this, many countries have adopted the arm’s length principle, which requires transactions between related entities to be priced as if they were between independent entities.
Controlled foreign corporations and their taxation
Rules governing controlled foreign corporations (CFCs) emerged in response to the risk of businesses shifting income to low-tax jurisdictions. A CFC is a corporate entity that registers and conducts business in a jurisdiction other than the one where its controlling owners reside.
Most countries enforce rules that tax the controlling shareholders on specific types of income (usually passive income such as dividends, interest, royalties, etc.) that the CFC earns, even if the CFC has not distributed that income. These rules discourage base erosion and profit shifting (BEPS) strategies by making it less attractive to establish artificial structures in low-tax jurisdictions.
Globalization and its impact on taxation
Characterized by the free movement of goods, services and capital, globalization has significantly influenced global economic activities. It has ushered in new markets, increased competitiveness, and driven economic growth and development. One of the significant outcomes of this economic integration is the spike in cross-border transactions and international business activities.
The ebb and flow of cross-border transactions
As the barriers to international trade progressively dismantle, businesses expand their operations beyond domestic confines, leading to a substantial increase in cross-border transactions. Multinational corporations are now more rule than exception, and supply chains span across multiple countries. As a result, international business activities have seen an unprecedented surge.
While these developments offer new opportunities, they also complicate the tax landscape. The increase in cross-border transactions has birthed complex tax issues like transfer pricing, double taxation, and problems with tax evasion and avoidance.
Challenges to revenue collection from globalization
Traditional tax systems, designed in a pre-globalization era, often grapple with challenges posed by the global economy. For instance, the principle of physical presence, a cornerstone of traditional taxation, is becoming less relevant in a digital economy where businesses can generate substantial income from a country without a significant physical presence.
Moreover, transfer pricing – the pricing of transactions within and between enterprises under common ownership or control – has become a prickly issue. Globalization has enabled corporations to shift their profits to low-tax jurisdictions, reducing their overall tax liability, a practice known as Base Erosion and Profit Shifting (BEPS).
Additionally, the issue of double taxation – the same income being taxed in two different countries – can deter international trade and investment. While tax treaties and foreign tax credits are mechanisms to avoid such a scenario, discrepancies in national tax laws persist as a problem.
These factors collectively make revenue collection an uphill task for governments. They need to strike a delicate balance between attracting foreign investment (often through lower taxes) and ensuring adequate revenue collection for public expenditure.
Tax havens and base erosion and profit shifting (BEPS)
Both ‘tax havens’ and ‘base erosion and profit shifting (BEPS)’ significantly influence how MNCs manage their taxes and how governments strive to collect tax revenue.
Tax havens, or offshore financial centers, are jurisdictions offering minimal tax liability to foreign individuals and businesses in an economically and politically stable environment. Recognized tax havens, such as Bermuda, the Cayman Islands, and Switzerland, feature low or zero taxation, lack of transparency, absence of substantial activities, and laws promoting financial secrecy.
Role of tax havens in international tax avoidance
Tax havens serve a controversial role in international tax planning and avoidance. For corporations and individuals, tax havens can provide legitimate tax planning strategies and an effective means of managing tax liability. But they can also facilitate tax avoidance and evasion.
Businesses can significantly reduce their overall tax bills by moving profits to subsidiaries located in these low-tax jurisdictions, a practice often criticized for depleting the tax bases of high-tax jurisdictions and contributing to global income inequality.
BEPS and its impact on global taxation
MNCs use a tax planning strategy known as BEPS, which involves shifting profits from high-tax jurisdictions to low or no-tax jurisdictions (tax havens). While not illegal, BEPS practices are seen as exploiting gaps and mismatches in tax rules to evade taxes. BEPS significantly impacts global taxation by undermining the fairness and integrity of tax systems. Smaller-scale businesses and individuals end up shouldering a disproportionate share of the tax burden.
Countering BEPS
Given the implications of BEPS on national revenues and economic fairness, many countries and international organizations like the Organisation for Economic Co-operation and Development (OECD) and the G20 have taken countermeasures.
The OECD with G20 countries, developed a 15-point Action Plan on BEPS to offer governments a series of reforms to modernize their tax systems. It aims to address tax challenges by ensuring that profits get taxed where the economic activities producing the profits occur and where value gets created.
Taxation of MNCs
Taxing the MNCs has become an increasingly complex and contested issue in our globalized world. The cross-border operations of these entities, coupled with varying national tax laws, create numerous challenges and open up opportunities for creative tax planning.
Tax challenges posed by MNCs
Firstly, it can be difficult to determine where an MNC’s economic activities genuinely occur and where they create value due to the interaction of numerous related entities across different jurisdictions.
Secondly, many MNCs exploit gaps and mismatches in tax rules through aggressive tax planning strategies, leading to BEPS. These practices distort competition, erode national tax bases, and hinder fair tax burden sharing among taxpayers.
Finally, the digitalization of the economy exacerbates these issues. Businesses can engage with customers and generate profits in a jurisdiction without a physical presence, which challenges traditional tax principles based on physical nexus.
Tax planning and profit shifting by MNCs
MNCs employ various methods for tax planning and profit shifting. Transfer pricing enables them to shift profits to low-tax jurisdictions. MNCs might also use strategies like ‘treaty shopping’ to take advantage of bilateral tax agreements between countries or structure their investments through tax havens to minimize their overall tax liability.
Country-by-country reporting
To combat these challenges, international organizations and countries have introduced measures to improve transparency and ensure a fair allocation of taxing rights. Country-by-Country Reporting is one such initiative.
CbCR requires MNCs to provide annual aggregate information in each jurisdiction where they conduct business. This information relates to the global allocation of income, taxes paid, and certain indicators of the location of economic activity. This initiative promotes transparency by providing a clear overview of where profits, sales, employees and assets are located and where taxes are paid and accrued.
Role of information exchange
The globalized economy has heightened the risk of tax evasion and avoidance, with individuals and companies often exploiting international borders to conceal taxable assets and income. In this context, the exchange of tax-related information between countries and international cooperation become essential.
This information exchange allows tax authorities to gain a more accurate and comprehensive understanding of taxpayers’ offshore activities, thus facilitating fair and effective enforcement of tax laws. Meanwhile, international cooperation helps establish uniform standards and fosters collective action against tax evasion and avoidance, making it more challenging for wrongdoers to exploit gaps and discrepancies between different countries’ tax systems.
International Initiatives: The CRS and AEOI
Several international initiatives aim to enhance the exchange of information and promote cooperation. Two of the most significant are the Common Reporting Standard (CRS) and the Automatic Exchange of Information (AEOI).
Developed by the OECD, the CRS provides for the annual exchange of non-resident financial account information between jurisdictions, enhancing transparency and aiding in the detection and deterrence of tax evasion. Over 100 jurisdictions have committed to implementing the CRS.
Tied closely to the CRS is the concept of AEOI. The AEOI agreements allow for the systematic and periodic transmission of taxpayers’ information by the source country to the residence country. This initiative represents a step change in international efforts to increase transparency.
Conclusion
In the face of global tax challenges posed by MNCs and the exploitation of tax havens, nations and international organizations are stepping up their efforts. The implementation of Controlled Foreign Corporations rules, the fight against BEPS, and the execution of country-by-country reporting are strategies aimed at increasing transparency, fostering fairness and ensuring that profits are taxed where economic activities occur.
Further, the AEOI and the CRS initiatives strengthen global cooperation in closing gaps that enable tax evasion. Together, these measures signal a determined stride towards a more equitable global taxation landscape.

The writer is a taxation management expert.

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