The Rights of Multinationals in the Global Transparency Framework: McCarthyism?

The overall aim of this article is to analyse the rights of corporations (mainly multinationals) when dealing with tax authorities in this new era of transparency and “fair share”. The article addresses two questions: First, what are the rights and obligations of corporations as taxpayers in these developments? Second, what should countries (including the tax authorities and judiciary thereof) do (i) to guarantee that the rules to implement exchange of information protect the confidentiality, privacy and participation of the taxpayer in the exchange and (ii) to guarantee that the rules to implement the BEPS Actions, as well as domestic and treaty anti-avoidance rules to tackle abusive and aggressive tax planning, are clear, easy to apply and reliable?This article will address the international instruments and domestic measures introduced to tackle tax evasion, harmful tax practices and abusive and aggressive tax planning (section 2.), and some problems in the application of these instruments and rules will be presented. Section 3. will first analyse the rights of a corporation to confidentiality and privacy, and the right to be notified, to be heard and to appeal against the exchange of information; the second part will analyse the rights of a corporation to certainty and transparency in terms of the availability, clarity, simplicity and reliability of tax rules. Finally, section. will provide some conclusions and recommendations. FdR – Publicaties zonder aanstelling Universiteit Leide

Consensus en Legitimiteit bij het maken van Internationale Belastingregels

Het maken van internationale belastingregels is in het verleden bediscussieerd in het kader van debeginselen voor de verdeling van de heffingsrechten tussen ontwikkelde en ontwikkelingslanden. Sindsde wereldwijde financiële crisis in 2007-2008 is de discussie veranderd. De focus ligt bij het maken vaninternationale belastingregels thans meer op internationale samenwerking en op het zoeken vanconsensus tussen ontwikkelde landen en ontwikkelingslanden. Echter, er zijn tekortkomingen in dezesamenwerking die gevolgen hebben voor de legitimiteit van de initiatieven, aangezienontwikkelingslanden onvoldoende zijn vertegenwoordigd in de besluitvorming over internationalebelastingregels.Deze bijdrage bespreekt deze tekortkomingen vanuit het perspectief van “verschuivendemachtsverhoudingen in de fiscaliteit” en de rol van ontwikkelde landen, ontwikkelingslanden en ookinternationale organisaties, zoals de OESO, en politieke fora, zoals de G20. De belangrijkste vraag is indezen wat ‘consensus’ betekent voor de legitimiteit,  en goed bestuur van landen, internationale organisaties en politieke fora in het maken van internationale belastingregels?Seventh Framework Programme (FP7)758671Grenzen van fiscale soevereinitei

Processing personal and business data and the rule of law in the era of digital trade

This article addresses data protection including the automatic processing of personal and business data as a result of the flows of information and the digital trade. Nowadays, data is being collected, exchanged and used in small or large amounts by governments, international organizations and companies for medical, educational, social, industrial and tax purposes amongst others. The increasingly collection, exchange and use of data by companies and governments, calls for attention to the legal protection in the collection, exchange, use, monitoring and processing of this data. Furthermore, the use of big data also raises questions regarding the protection of privacy and also the safeguards in place for the data controllers among others. The main question of this article is are the instruments in the era of digital trade, internet governance and taxation sufficient to guarantee the privacy and data protection of individuals and business? In order to answer this question, this article will address the challenges and the instruments for the protection of the use of data and big data in three areas: trade and internet governance and taxation.Seventh Framework Programme (FP7)758671Grenzen van fiscale soevereinitei

Global tax governance: legitimacy and inclusiveness: why it matters

Inaugural lecture given by Prof. dr. Irma Mosquera Valderrama on the acceptance of her position as professor Tax Governance at Leiden University on Friday June 30, 2023Inaugural lecture given by Prof. dr. Irma Mosquera Valderrama on the acceptance of her position as professor Tax Governance at Leiden University on Friday June 30, 2023Grenzen van fiscale soevereinitei

Global tax governance

This chapter examines global tax governance. By assuming that the term global tax governance is used to impose outcomes on people, the question that should be asked would be, if this is true, and countries still follow these outcomes by the Organization for Economic Development and Co-operation (OECD), under what conditions can the model of global tax governance be feasible and legitimate for both developed and developing countries? The chapter begins by looking at the recent international tax standards, mainly exchange of information and BEPS as developed by the OECD with the political mandate of the G20. It then addresses the use of soft law vs. hard law to introduce international tax standards, before considering the role of developing countries in the BEPS Inclusive Framework and the peer review of the BEPS Minimum Standards. Finally, the chapter studies the validity of the outcome of these international tax standards and discusses the role of the actors in global tax governance.Seventh Framework Programme (FP7)758671Grenzen van fiscale soevereinitei

BEPS Action 12: mandatory disclosure in the EU

Seventh Framework Programme (FP7)758671Grenzen van fiscale soevereinitei

An ASEM Model of cooperation in digital economy taxation: digitalisation and new technologies

The overall aim of this chapter is to address the challenges that Asia and Europe face in digital connectivity in the field of taxation and to facilitate the exchange of best practices in the framework of Asia–Europe Meeting (ASEM) connectivity and cooperation.Horizon 2020(H2020)758671Grenzen van fiscale soevereinitei

Policy Note – The Study of the BEPS 4 Minimum Standards as A Legal Transplant: A Methodological Framework

This policy note aims at setting a methodological framework for the study of legal transplants in taxation and more specifically to the use of the comparative legal theories of legal transplants, legal (tax) systems and legal (tax) culture to study the implementation of the Base Erosion and Profit Shifting (BEPS) 4 Minimum Standards. Attention will be given to the following questions who is participating as donor or recipient andwhy? how the tax systems and tax culture (actors) influence the process? and what are the rules that will be implemented?By using comparative legal theories, this policy note allows to explain the reasons why countries decided to implement the BEPS 4 Minimum Standards. These reasons are for instance, prestige, political incentives, and chance and necessity. Furthermore, the study of the differences in tax systems and tax culture can allow policy makers in international organizations and countries to understand the transplantation process and thedevelopment of tax rules implementing the BEPS 4 Minimum Standards. The theory of tax systems will take into account the differences between civil law, common law and mixed legal systems. The theory of tax culture will take into account the behaviour, values and attitudes of the relevant actors (the courts with tax competence, tax law-makers, taxpayers, tax administration, business associations, tax advisors, scholars, and civil society Non-Governmental Organization (NGOs.). In order to illustrate these differences, this policy note has addressed the implementation of the Principal Purpose Test in the countries participating in the BEPS Inclusive Framework.Seventh Framework Programme (FP7)758671Grenzen van fiscale soevereinitei

Regulatory Framework for Tax Incentives in Developing Countries After BEPS Action 5

The aim of this article is to assess the regulatory framework of Base Erosion Profit Shifting Project (BEPS) Action 5 in order to evaluate tax incentives in the form of preferential tax regimes that provide benefits to geographically mobile business income in developing countries. To conduct this assessment, this article first addresses the use of preferential tax regimes considering BEPS Action 5. Thereafter, and taking into account the concerns expressed by international organizations, regional tax organizations and scholars, the author contends that the evaluation of tax incentives in light of BEPS Action 5 results in additional burden for developing countries. Countries will need to assess their tax incentives considering the factors provided by the 1998 OECD report and BEPS Action 5. Since there are no terms of reference for the application of these factors, the country will have to assess its own tax incentives, which brings increased uncertainty and compliance burden for developing countries. In order to provide some guidance in this evaluation, the author provides a list of the factors used by the 1998 OECD report and BEPS Action 5 and their application to tax incentives. Subsequently, this article will assess the legitimacy of the application of BEPS Action 5 to developing countries and will demonstrate that its assessment framework is ambiguous and prevents developing countries from enacting legitimate tax incentives. Finally, this article will conclude and provide some recommendations for further research.Seventh Framework Programme (FP7)758671Grenzen van fiscale soevereinitei

The EU Standard of Good Governance in Tax Matters for Third (Non-EU) Countries

This article analyzes the standard of good governance in tax matters introduced by the ECOFIN Council in 2008, with a view to tackle tax fraud and tax evasion. At that time, the standard included transparency, exchange of information and fair tax competition. Later on, several OECD and EU developments have changed the content of this standard. As of April 2018, the standard of good governance includes also the 4 Minimum Standards of the Project to tackle base erosion and profit shifting practices by multinationals (BEPS).  This standard has been introduced by the EU as a pre-condition for third (non-EU) countries that receive EU development aid, conclude strategic partnership agreements, free trade and economic partnership agreements and more recently as a standard that determines whether the third (non-EU) country should be included in a single EU common list of non-cooperative jurisdictions. This article aims answers two questions (i) whether the standard of good governance in tax matters is an import and/or export of EU norms? and (ii) what is the legal status of this standard vis-á-vis third (non-EU) countries?  Finally, this article provides conclusions and recommendations for further research.  Seventh Framework Programme (FP7)758671Grenzen van fiscale soevereinitei