Normativity in international tax law : a legal theoretical inquiry into contemporary international tax discourse / Daniel W. Blum.
2023
K4464 .B58 2023 (Mapit)
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Details
Author
Title
Normativity in international tax law : a legal theoretical inquiry into contemporary international tax discourse / Daniel W. Blum.
Added Corporate Author
Imprint
Amsterdam : IBFD, [2023]
Description
xvi, 634 pages ; 23 cm.
Series
European and international tax law and policy series ; 25.
Formatted Contents Note
Chapter 1. Normativity in International Tax Law: Setting the Scene
1.1. The importance of legal theory in the field of international tax law
1.1.1. Starting point, or the question "why"
1.1.2. The substantive aspect, the methodological aspect and the link between them
1.1.2.1. International tax law between positivism, realism and naturalism
1.1.2.2. Legal theory, legal doctrine and the role of law in tax policy
1.2. Existing scholarship and identified research gap
1.3. Applied methodology and limitations of the inquiry
1.4. Objective, hypotheses and structure
1.4.1. Objective
1.4.2. Key hypotheses
1.4.3. Structure
Chapter 2. The Debate on How to Reform the International Tax System in Light of Digitalization
2.1. Starting point: Tax policy debate on how to reform the rules of international taxation
2.2. Proposals for reform: International tax rules in a digital era
2.2.1. Origin of the debate
2.2.2. Development of the debate
2.2.3. Extensions of the right to tax of market/source states
2.2.3.1. Treaty/consensus-based proposals
2.2.3.1.1. Significant economic presence
2.2.3.1.2. User participation and marketing intangibles proposal
2.2.3.1.3. The OECD's Unified Approach, or Pillar One
2.2.3.1.4. Article 12A of the UN Model: Fees for technical services
2.2.3.1.5. Article 12B of the UN Model: Automated digital services
2.2.3.1.6. Withholding tax on digital transactions
2.2.3.2. Unilateral proposals
2.2.3.2.1. Turnover taxes/equalization levies
2.2.3.2.2. The GAAR solution: Diverted profits tax
2.2.4. Extension of residence-based taxation: Pillar Two, or the global minimum tax (GloBE proposal)
2.2.5. Destination-based corporate taxation
2.3. Assumptions underlying the debate on how to address the tax challenges of the digitized economy
2.3.1. Relevance of identifying the proposals' underlying assumptions
2.3.1.1. Necessity of reform and superiority to current law
2.3.1.2. The circular effect of the use of assumptions in international tax discourse
2.3.1.3. Two clarifications
2.3.2. Necessity of reform
2.3.2.1. Fairness, efficiency and adequacy
2.3.2.2. Reform necessary to promote fairness
2.3.2.2.1. "Fairness" undefined
2.3.2.2.2. The allocational fairness argument
2.3.2.2.3. The fair competition argument
2.3.2.3. Reform necessary to promote economic efficiency and neutrality
2.3.2.3.1. Abstract policy benchmark or legal necessity?
2.3.2.3.2. Efficiency arguments raised in favour of taxation at destination
2.3.2.3.2.1. Manipulability and competitive race to the bottom
2.3.2.3.2.2. Cash-flow taxation and marginal tax rate on investment
2.3.2.3.3. Efficiency arguments raised in favour of global minimum taxation
2.3.2.3.4. Efficiency and neutrality, or the functioning of the internal market
2.3.2.4. The technical case for reform: The search for "adequacy"
1.1. The importance of legal theory in the field of international tax law
1.1.1. Starting point, or the question "why"
1.1.2. The substantive aspect, the methodological aspect and the link between them
1.1.2.1. International tax law between positivism, realism and naturalism
1.1.2.2. Legal theory, legal doctrine and the role of law in tax policy
1.2. Existing scholarship and identified research gap
1.3. Applied methodology and limitations of the inquiry
1.4. Objective, hypotheses and structure
1.4.1. Objective
1.4.2. Key hypotheses
1.4.3. Structure
Chapter 2. The Debate on How to Reform the International Tax System in Light of Digitalization
2.1. Starting point: Tax policy debate on how to reform the rules of international taxation
2.2. Proposals for reform: International tax rules in a digital era
2.2.1. Origin of the debate
2.2.2. Development of the debate
2.2.3. Extensions of the right to tax of market/source states
2.2.3.1. Treaty/consensus-based proposals
2.2.3.1.1. Significant economic presence
2.2.3.1.2. User participation and marketing intangibles proposal
2.2.3.1.3. The OECD's Unified Approach, or Pillar One
2.2.3.1.4. Article 12A of the UN Model: Fees for technical services
2.2.3.1.5. Article 12B of the UN Model: Automated digital services
2.2.3.1.6. Withholding tax on digital transactions
2.2.3.2. Unilateral proposals
2.2.3.2.1. Turnover taxes/equalization levies
2.2.3.2.2. The GAAR solution: Diverted profits tax
2.2.4. Extension of residence-based taxation: Pillar Two, or the global minimum tax (GloBE proposal)
2.2.5. Destination-based corporate taxation
2.3. Assumptions underlying the debate on how to address the tax challenges of the digitized economy
2.3.1. Relevance of identifying the proposals' underlying assumptions
2.3.1.1. Necessity of reform and superiority to current law
2.3.1.2. The circular effect of the use of assumptions in international tax discourse
2.3.1.3. Two clarifications
2.3.2. Necessity of reform
2.3.2.1. Fairness, efficiency and adequacy
2.3.2.2. Reform necessary to promote fairness
2.3.2.2.1. "Fairness" undefined
2.3.2.2.2. The allocational fairness argument
2.3.2.2.3. The fair competition argument
2.3.2.3. Reform necessary to promote economic efficiency and neutrality
2.3.2.3.1. Abstract policy benchmark or legal necessity?
2.3.2.3.2. Efficiency arguments raised in favour of taxation at destination
2.3.2.3.2.1. Manipulability and competitive race to the bottom
2.3.2.3.2.2. Cash-flow taxation and marginal tax rate on investment
2.3.2.3.3. Efficiency arguments raised in favour of global minimum taxation
2.3.2.3.4. Efficiency and neutrality, or the functioning of the internal market
2.3.2.4. The technical case for reform: The search for "adequacy"
Summary
The set of rules applicable to cross-border situations found in both tax treaties and domestic tax law has, in recent years - and in an unprecedented manner - been the object of political, academic and legislative scrutiny. At the core of this global tax policy debate lies the ubiquitous claim that the current allocation of taxing rights between jurisdictions is "outdated", "inappropriate" and "conceptually flawed". Originally designed to be applied to a "brick and mortar" economy, digitalization - according to the dominant narrative - has rendered the system's reliance on physical criteria for allocating taxing rights meaningless. In response, the ongoing debate has produced a variety of reform proposals intended to overcome the shortcomings of the status quo. Although the real-life changes accorded with digitalization are undisputed, the question remains as to why such change requires reforming the rules of international tax law. Looking at why reform is seen as inevitable, the book identifies three lines of argumentation on which essentially all reform proposals are based. Accordingly, substantial change is found to be a demand of fairness and economic efficiency. Moreover, the discourse is characterized by the recurring assumption that taxation requires justification. Why, however, these claims carry any normative weight, i.e. why international tax law should be fair and efficient and why taxation requires justification, remains unanswered. Instead, their normative value and, hence, potential legal relevance is assumed, leading to the core hypothesis of this book, according to which the international tax discourse is characterized by a lack of consensus and transparency concerning the understanding of normativity employed in formulating arguments therein. By revisiting the key claims made in the debate from a legal theory perspective, the book situates them within the legal theoretical spectrum ranging from Kelsian/Hartian positivism to Dworkinian interpretivism and analyses the explanatory value of legal theory in establishing their legal validity.
Bibliography, etc. Note
Includes bibliographical (pages 557-634) references.
Call Number
K4464 .B58 2023
Language
English
ISBN
9789087228057 q (paperback)
9087228058
9087228058
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