Papers & Reports

According to Mohan and Gupta, IP assets enjoy a unique advantage in tax planning because of their intangible nature and the lack of physical substance thus making them susceptible to transfer across tax jurisdictions. The authors review the decision of the New Delhi High Court in a dispute in which IP assets registered in India were transferred between the Australian and English company through their subsidiary in Mauritius, and where the court relied on the doctrine of mobilia sequuntur personam to fill the lacuna in the Indian Income Tax Act 1961 and thus held that if a foreign corporation owns an IP asset, regardless of its registration and use in India, it would be taxed by the jurisdiction of the owner’s residence.  Mohan and Gupta in this article examine the relevance of the doctrine in line with precedential guidelines and the international treaty framework and posit that either inadvertently or by design, the Indo–Mauritian Double Taxation Avoidance Agreement creates an instance of double tax exemption of Mauritian-owned, Indian-registered IP assets.

To Brauner, one cannot escape the data revolution; it is all around us. Advancements in information collection, collation, and analysis are fundamentally altering our world. They are transforming the economy, society, and even ourselves. In view of the debate that these dramatic, fast-paced changes has triggered from the legal perspective, Brauner argues that existing and universal income tax rules are inherently incompatible with an economy in which information plays a significant and growing role, and that income taxation is incapable of effectively taxing information. Brauner thus posits that this inability necessitates immediate reform, and offers three viable paths to such reform: consumption taxation, data taxes, and formulary taxation. According to Brauner, formulary taxation is currently the most desirable and plausible path to effective reform, owing to its promise to best stabilize and maintain the legitimacy of the international tax regime. He believes that formulary taxation can be incorporated into the existing regime most naturally, and its use of multi-factor formulae gives it the best chances of legitimacy because such reform does not pre-determine winners and losers.

Eden considers the UN Resolution 77/244, adopted by the General Assembly on 30 December 2022 which reaffirms earlier commitments by the United Nations to improve international tax cooperation, fight illicit financial flows, and combat aggressive tax avoidance and evasion. The resolution requires the Secretary General to prepare a report on the ways to strengthen the inclusiveness and effectiveness of international tax cooperation with consultation with member states and other states actors (civil society inclusive). It is in furtherance of this that Eden offers comments on different ways to frame the issue of international tax cooperation. This opinion piece provides a brief history of international tax cooperation, it analyzes the three streams of research that may inform UN policymaking, to wit: the literatures on wicked problems, prescriptive public finance, and international regimes and global governance; and concludes with some suggestions for the way forward.

“Zero-price” transactions—in which goods or services are provided at a cash price of zero—are an increasingly important feature of economic life. Consumers can search the web, use email, listen to music, and even trade stocks, all without paying anything out of pocket. But zero-price transactions are not free: for-profit businesses provide products at zero-price because they get something valuable from consumers in return. Consumers pay with their time, attention, or private information. Zero-price transactions are not giveaways; they are a form of barter exchange. Under federal income tax principals, barter exchanges are taxable: both parties to the transaction are taxed on the value they receive. This Article considers the treatment of zero-price transactions from an income tax perspective. Should zero-price transactions be taxed like barter exchanges? If so, how should the amount received in a zero-price transaction be valued? And how can the federal government practically collect tax owed on zero-price transactions?

This article analyses the testimony submitted to the US Senate Finance Committee on this very topic and explores the ways in which the 2017 Tax Act (TCJA) contributed to the ongoing offshoring of profits by major pharmaceutical companies that generate significant portions of their revenues from the US market. The Article’s analysis are in three broad perspectives: It reviews the pre-2018 US international tax and profit shifting; the impact of TCJA; and finally, the implications of the OECD pillar two for the US and the taxation of US multinational corporations. The article concludes that the combination of dramatic profit shifting by many US multinationals, the global adoption of pillar two and the US commitment to a minimum tax call for reforms of US international tax policy.

The authors revisit the classical question as to the optimal design for the international corporate tax system in a multi-country general equilibrium model that incorporates three key features of the modern globalized economy, to wit: multinational production; intangible capital; and international profit shifting. They argue that the Ramsey model’s competitive equilibrium is inefficient due to an externality that arises from international spillovers in intangible investment. In order to quantitatively investigate the properties of the Ramsey planner's optimal policy in a more realistic setting, the authors extend the Ramsey model to an environment with firm heterogeneity and selection into multinational production. In their view the optimal policy in this environment is to cut corporate income taxes in rich countries and raise taxes in poor countries, which would benefit the latter substantially and shut down profit shifting worldwide.

Osswald and Pierk in this study investigate to what extent U.S. multinational corporations’ (MNCs) executives affect the tax planning of their foreign subsidiaries. They opine based on their results that parent executives (CEOs and CFOs) do not affect foreign subsidiaries’ tax planning (profit shifting and effective tax rates), and instead, subsidiaries' tax planning is largely explained by time-invariant subsidiary characteristics, and partly by local subsidiary executives when subsidiary managers have more incentives and opportunities to engage in tax planning. They analyze the role of executives in international tax planning and note that tax planning in non-tax haven subsidiaries is shaped by features of subsidiaries’ as well as local management as opposed to their parent executives.

Pantazatou in this article critically assesses the recent Grand Chamber judgment of the Court of Justice of the European Union (CJEU) on Registers of Beneficial Ownership (RBOs) and the preceding Advocate General’s Opinion. The author highlights certain misconceptions and ponders on the open questions left and then focuses on the interaction between the transparency principle and the fundamental rights of privacy and data protection. It also considers the potential impact of the judgment on ‘tax-related’ data and on fighting money laundering and tax evasion altogether.

Avi-Yonah considers the new proposed Global corporate minimum tax (GLoBE) as embodied in Pillar 2 of the OECD/IF BEPS 2.0 proposal which provides a 15% of financial statement income of within scope MNEs as well as the adoption of a similar rate and base for the new US corporate alternative minimum tax. Avi- Yonah posits that the Single Tax Principle (STP) on which Pillar 2 is built suggests that the rate should be the average OECD corporate tax rate (about 23%) and on that basis queries the 15% rate as being a political solution. In his response, he opines that this is not that case because it represents a justifiable compromise between the three goals of the corporate tax.

Cui in this paper considers the Canadian draft Digital Services Tax Act (DSTA) and the status of the Act in Canada. Cui notes that there has been a dismissal of the Canadian efforts towards taxation of the digital economy both within and outside Canada, and highlights three ways in which this dismissal of Canada’s proposed DST is worthy of consideration. Cui opines that the Canadian DST is much broader in scope than its U.K. and French counterparts, which in his view displaces criticism as to narrow scope which was leveled against the UK and French digital services taxes. Secondly, the author argues that the DSTA raises important new questions about DST design, especially in connection with taxing business-to-business and social media platforms, that may not be just technical in nature, but requires debate on the DST’s purpose. Finally, Cui notes that, since the enactment of the DST in 2019, the world has been plagued by other larger, and seemingly intractable, trade disputes. Yet the global tax profession continues to be fixated on the pettier trade dispute that DSTs have generated.