This article aims to delineate the content and limits of the duty to protect the European Union’s financial interests regarding tax-based own resources, namely customs duties and VAT, which are key for financing the EU budget. It specifically addresses the duties of the EU Member States to make these resources available to the Union and to combat fraud and other illegal activities impacting their effective collection. Yet, these duties must be exercised in compliance with the protection of fundamental rights. The conflicts arising from the limits imposed by national rights and those enshrined in the EU Charter are also critically addressed.
{"title":"Protecting EU Financial Interests in the Collection of Tax-Based Own Resources","authors":"Aitor Navarro","doi":"10.54648/taxi2024055","DOIUrl":"https://doi.org/10.54648/taxi2024055","url":null,"abstract":"\u0000 This article aims to delineate the content and limits of the duty to protect the European Union’s financial interests regarding tax-based own resources, namely customs duties and VAT, which are key for financing the EU budget. It specifically addresses the duties of the EU Member States to make these resources available to the Union and to combat fraud and other illegal activities impacting their effective collection. Yet, these duties must be exercised in compliance with the protection of fundamental rights. The conflicts arising from the limits imposed by national rights and those enshrined in the EU Charter are also critically addressed.\u0000","PeriodicalId":45365,"journal":{"name":"Intertax","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2024-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141716918","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The free movement of persons and services, related secondary legislation, and the jurisprudence of the Court of Justice of the European Union (CJEU) have provided the basis for increased personal mobility within the European Union (EU). Notwithstanding the corresponding significant benefits for both EU citizens and Member States, this phenomenon has also led to an increasing disintegration between the jurisdiction in which an EU citizen may influence taxation and spending and the one in which they actually pay (most of their) taxes. This article explores the potential of an EU own resources system that is (increasingly) built on tax-based contributions in order to address the intensifying mismatch between taxation, spending, and representation. It is shown that such an assessment produces mixed results. The situation of taxpayers with transnational realities of life would be improved by a transfer of fundamental decision-making processes to the Union level. However, democratic legitimacy would simultaneously be reduced in relation to taxpayers who (mainly) pay their taxes in their respective Member State of citizenship. This article therefore contends that the ambiguous character of tax-based contributions from a democratic legitimacy perspective should be taken into consideration in negotiations on the (re)shaping of the EU’s own resources system.
{"title":"(In)congruence Between Taxation, Spending, and Representation: The Ambiguous Character of Tax-based Contributions","authors":"Stefanie Geringer","doi":"10.54648/taxi2024056","DOIUrl":"https://doi.org/10.54648/taxi2024056","url":null,"abstract":"\u0000 The free movement of persons and services, related secondary legislation, and the jurisprudence of the Court of Justice of the European Union (CJEU) have provided the basis for increased personal mobility within the European Union (EU). Notwithstanding the corresponding significant benefits for both EU citizens and Member States, this phenomenon has also led to an increasing disintegration between the jurisdiction in which an EU citizen may influence taxation and spending and the one in which they actually pay (most of their) taxes. This article explores the potential of an EU own resources system that is (increasingly) built on tax-based contributions in order to address the intensifying mismatch between taxation, spending, and representation. It is shown that such an assessment produces mixed results. The situation of taxpayers with transnational realities of life would be improved by a transfer of fundamental decision-making processes to the Union level. However, democratic legitimacy would simultaneously be reduced in relation to taxpayers who (mainly) pay their taxes in their respective Member State of citizenship. This article therefore contends that the ambiguous character of tax-based contributions from a democratic legitimacy perspective should be taken into consideration in negotiations on the (re)shaping of the EU’s own resources system.\u0000","PeriodicalId":45365,"journal":{"name":"Intertax","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2024-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141705707","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The European Union must finance the repayment of the debt it has contracted through Next Generation EU (NGEU). This has brought a new dynamic to the debate on the reform of its financial order. The ideas put forward in this context are diverse and sometimes unorthodox, thereby provoking questions on the legal limits set by the existing Treaty framework. The article complements this debate by focusing on the specific instrument that determines the resources available to the EU – the Own Resources Decision (ORD) pursuant to Article 311(3) TFEU. It seeks to answer one question: What is the correct legal framework the European Court of Justice (ECJ) would have to apply in a case in which it is asked to rule on the legality or validity of the ORD? To explore this question, it analyses the legal requirements contained in Article 311(3) TFEU, discusses the legal nature of the ORD, and examines what type of review the ECJ would be able to exercise regarding its different procedural and substantive aspects.
{"title":"Judicial Review of the EU Own Resources Decision by the ECJ","authors":"Jakob Dürr","doi":"10.54648/taxi2024057","DOIUrl":"https://doi.org/10.54648/taxi2024057","url":null,"abstract":"\u0000 The European Union must finance the repayment of the debt it has contracted through Next Generation EU (NGEU). This has brought a new dynamic to the debate on the reform of its financial order. The ideas put forward in this context are diverse and sometimes unorthodox, thereby provoking questions on the legal limits set by the existing Treaty framework. The article complements this debate by focusing on the specific instrument that determines the resources available to the EU – the Own Resources Decision (ORD) pursuant to Article 311(3) TFEU. It seeks to answer one question: What is the correct legal framework the European Court of Justice (ECJ) would have to apply in a case in which it is asked to rule on the legality or validity of the ORD? To explore this question, it analyses the legal requirements contained in Article 311(3) TFEU, discusses the legal nature of the ORD, and examines what type of review the ECJ would be able to exercise regarding its different procedural and substantive aspects.\u0000","PeriodicalId":45365,"journal":{"name":"Intertax","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2024-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141710970","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The European Union and its Member States are facing enormous financial challenges. To address them, the EU has not only incurred its own debt for the first time (NextGenerationEU (NGEU)) but has also obligated the Member States to introduce a new tax for the first time (known as the EU excess profits tax). This raises fundamental legal questions – particularly whether and to what extent the European Union has taxing powers, although proceeds of the excess profits tax are not part of the EU budget.
{"title":"Taxing Powers of the European Union","authors":"Till Valentin Meickmann","doi":"10.54648/taxi2024054","DOIUrl":"https://doi.org/10.54648/taxi2024054","url":null,"abstract":"\u0000 The European Union and its Member States are facing enormous financial challenges. To address them, the EU has not only incurred its own debt for the first time (NextGenerationEU (NGEU)) but has also obligated the Member States to introduce a new tax for the first time (known as the EU excess profits tax). This raises fundamental legal questions – particularly whether and to what extent the European Union has taxing powers, although proceeds of the excess profits tax are not part of the EU budget.\u0000","PeriodicalId":45365,"journal":{"name":"Intertax","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2024-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141705942","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Directives in the area of direct taxation can obligate EU Member States to tax income. This obligation can conflict with obligations under tax treaties to not tax income. With respect to such a conflict, the question arises as to how it should be resolved. In this article, this question is addressed from the perspective of EU law, more specifically the primacy of EU law’s conflict rule. Pursuant to this conflict rule, tax treaty provisions whose application within a legal order of an EU Member State is incompatible with a provision of a directive, must be set aside by an EU Member State court. Whereas this conflict might seem to provide an effective tool for resolving conflicts between directives requiring taxation and tax treaties requiring non-taxation, the prohibition of reverse vertical direct effect, in addition to Article 351 TFEU (for pre-accession tax treaties with third states), entails that it is, in fact, an ineffective tool for resolving such conflicts. This is because it follows from this prohibition that a directive cannot set aside a tax treaty on the basis of the primacy-based conflict rule if this results in an obligation for a taxpayer such as a higher tax burden. Primacy, prohibition of reverse vertical direct effect, Article 351 TFEU, C-435/22 PPU, directives, tax treaties, conflicts, conflicts between directives and tax treaties.
{"title":"Article: Conflicts between Directives that Require Taxation of Income and Tax Treaties: The Effectiveness of the EU Primacy-based Conflict Rule","authors":"","doi":"10.54648/taxi2024032","DOIUrl":"https://doi.org/10.54648/taxi2024032","url":null,"abstract":"Directives in the area of direct taxation can obligate EU Member States to tax income. This obligation can conflict with obligations under tax treaties to not tax income. With respect to such a conflict, the question arises as to how it should be resolved. In this article, this question is addressed from the perspective of EU law, more specifically the primacy of EU law’s conflict rule. Pursuant to this conflict rule, tax treaty provisions whose application within a legal order of an EU Member State is incompatible with a provision of a directive, must be set aside by an EU Member State court. Whereas this conflict might seem to provide an effective tool for resolving conflicts between directives requiring taxation and tax treaties requiring non-taxation, the prohibition of reverse vertical direct effect, in addition to Article 351 TFEU (for pre-accession tax treaties with third states), entails that it is, in fact, an ineffective tool for resolving such conflicts. This is because it follows from this prohibition that a directive cannot set aside a tax treaty on the basis of the primacy-based conflict rule if this results in an obligation for a taxpayer such as a higher tax burden.\u0000Primacy, prohibition of reverse vertical direct effect, Article 351 TFEU, C-435/22 PPU, directives, tax treaties, conflicts, conflicts between directives and tax treaties.","PeriodicalId":45365,"journal":{"name":"Intertax","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2024-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140755925","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The rapid expansion of digital services is dramatically reshaping the panorama of global taxation. This transformation is notably impacting multinational enterprises (MNEs) that operate in countries where they lack a physical presence. In this study, the authors focus the attention on the implications of digital services offered by these non-resident MNEs operating in the Republic of Kenya and the United Kingdom and representing developing and developed economies, respectively. The article delves into how the burgeoning digital economy challenges international tax laws by scrutinizing the implementation of the digital service tax (24DST) and highlighting the weaknesses of the two-pillar plan in comprehensively addressing the digitalization of the economy. It also broadens the comprehension of the unique obstacles and potential opportunities inherent in the digital economy from an international taxation perspective. The significance of this research lies in its potential to inform tax policy in an increasingly digitalized global economy. Policymakers can develop strategies that are more effective in ensuring fair taxation practices by understanding the nuanced interactions between digital services and international tax regulations. Additionally, MNEs can use this research to better navigate the complex tax implications of their digital services in various economic contexts and thereby foster sustainable and ethical business practices. Digital economy, digital service tax (DST), Kenya, multinational enterprises (MNEs), organisation for economic co-operation and development (OECD), pillar one and pillar two, taxation, tax base, unilateral tax measure, United Kingdom (UK).
{"title":"Article: Digital Services Tax: Analytical View of Challenges and Successes in Kenya and the United Kingdom","authors":"Kgomotso Mponwana, Jane Ndlovu","doi":"10.54648/taxi2024034","DOIUrl":"https://doi.org/10.54648/taxi2024034","url":null,"abstract":"The rapid expansion of digital services is dramatically reshaping the panorama of global taxation. This transformation is notably impacting multinational enterprises (MNEs) that operate in countries where they lack a physical presence. In this study, the authors focus the attention on the implications of digital services offered by these non-resident MNEs operating in the Republic of Kenya and the United Kingdom and representing developing and developed economies, respectively.\u0000The article delves into how the burgeoning digital economy challenges international tax laws by scrutinizing the implementation of the digital service tax (24DST) and highlighting the weaknesses of the two-pillar plan in comprehensively addressing the digitalization of the economy. It also broadens the comprehension of the unique obstacles and potential opportunities inherent in the digital economy from an international taxation perspective.\u0000The significance of this research lies in its potential to inform tax policy in an increasingly digitalized global economy. Policymakers can develop strategies that are more effective in ensuring fair taxation practices by understanding the nuanced interactions between digital services and international tax regulations. Additionally, MNEs can use this research to better navigate the complex tax implications of their digital services in various economic contexts and thereby foster sustainable and ethical business practices.\u0000Digital economy, digital service tax (DST), Kenya, multinational enterprises (MNEs), organisation for economic co-operation and development (OECD), pillar one and pillar two, taxation, tax base, unilateral tax measure, United Kingdom (UK).","PeriodicalId":45365,"journal":{"name":"Intertax","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2024-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140782207","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Editorial: The Meaning of «Is»: Reflections on Nestle","authors":"","doi":"10.54648/taxi2024031","DOIUrl":"https://doi.org/10.54648/taxi2024031","url":null,"abstract":"","PeriodicalId":45365,"journal":{"name":"Intertax","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2024-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140796665","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Thierry Belt, Irene Burgers, Jan Darecki, N. Oomes, Joep Schenk
The Netherlands has long faced criticism for its role in facilitating tax avoidance through its network of double taxation treaties (DTTs), particularly regarding developing countries, e.g., recently in a report of the Tax Justice Network (TJN). A review of the general Dutch tax policy shows that the country has taken several steps to reform its DTTs, undertaken domestic reforms to address tax avoidance issues, and has been offering tax-related capacity development (CD) programmes to developing nations. The authors ascertain from the results of an analysis of the parliamentary debate in terms of the contents of DTTs with developing countries and changes in domestic law as well as interviews with several stakeholders in the Netherlands and in developing countries show that the Netherlands is still likely to play a prominent role in global tax avoidance. This applies despite the significant changes in policy and substantive and procedural law. Not all loopholes have been closed, and adopting anti-abuse clauses in DTTs with developing countries – a central part of the Dutch response – has been somewhat disappointing. Moreover, the process of providing tax-related CD is not optimal, and tensions remain regarding the goals that the Netherlands attempts to pursue in tandem, potentially leading to policy incoherence. Moreover, unilateral action is unlikely to result in a reduction of global tax avoidance as financial flows – and therewith tax avoidance – are likely to shift to other countries. The global minimum tax (GMT) and other parts of the two-pillar proposal are more likely to offer a breakthrough for certain types of tax avoidance.Hence, a continued international dialogue on tax matters is needed to address all types of tax avoidance. In the parliamentary discussion on this topic, the Dutch Secretary of State for Finance reconfirmed the policy to assist developing countries in strengthening their tax systems in respect of the GMT through being in favour of a broader scope of Amount B, providing technical assistance in the implementation process of Pillars 1 and 2, and through the OECD’s Tax Inspectors Without Borders (TIWB) project. The objective of this article is to add to the policy discussion on how to strengthen the tax systems of developing countries. Tax avoidance, double taxation treaties (DTTs), international tax policy, Tax avoidance, double taxation treaties (DTTs), international tax policy, capacity development (CD), anti-abuse clauses, policy coherence, developing countries, BEPS, Addis Tax Initiative (ATI), Foreign Direct Investment (FDI).
长期以来，荷兰一直因其通过双重征税条约（DTTs）网络为避税提供便利而受到批评，特别是针对发展中国家，例如最近税收正义网络（TJN）的一份报告。对荷兰总体税收政策的回顾表明，荷兰已采取多项措施改革其避免双重征税条约（DTTs），进行国内改革以解决避税问题，并一直在向发展中国家提供与税收相关的能力发展（CD）计划。作者通过分析议会辩论中与发展中国家签订的避免双重征税条约的内容、国内法律的变化以及与荷兰和发展中国家的一些利益相关者的访谈，确定荷兰仍有可能在全球避税中扮演重要角色。尽管政策、实体法和程序法发生了重大变化，但这种情况依然存在。并不是所有的漏洞都被堵住了，在与发展中国家签订的避免双重征税条约中采用反滥用条款--这是荷兰应对措施的核心部分--在某种程度上令人失望。此外，提供涉税 CD 的过程并不理想，荷兰试图同时追求的目标之间仍然存在紧张关系，可能导致政策不一致。此外，单边行动不太可能减少全球避税现象，因为资金流动--以及随之而来的避税--很可能转移到其他国家。全球最低税（GMT）和双支柱提案的其他部分更有可能为某些类型的避税提供突破口。在议会关于此议题的讨论中，荷兰财政国务秘书重申了协助发展中国家加强全球通用税收制度的政策，即赞成扩大 B 类金额的范围，在支柱 1 和 2 的实施过程中提供技术援助，以及通过经合组织的无国界税务检查员（TIWB）项目。本文旨在为关于如何加强发展中国家税收制度的政策讨论添砖加瓦。避税、双重征税条约 (DTTs)、国际税收政策、避税、双重征税条约 (DTTs)、国际税收政策、能力发展 (CD)、反滥用条款、政策一致性、发展中国家、BEPS、亚的斯亚贝巴税收倡议 (ATI)、外国直接投资 (FDI)。
{"title":"Policy Note: Strengthening Tax Systems in Developing Countries: The Dutch Contribution","authors":"Thierry Belt, Irene Burgers, Jan Darecki, N. Oomes, Joep Schenk","doi":"10.54648/taxi2024035","DOIUrl":"https://doi.org/10.54648/taxi2024035","url":null,"abstract":"The Netherlands has long faced criticism for its role in facilitating tax avoidance through its network of double taxation treaties (DTTs), particularly regarding developing countries, e.g., recently in a report of the Tax Justice Network (TJN). A review of the general Dutch tax policy shows that the country has taken several steps to reform its DTTs, undertaken domestic reforms to address tax avoidance issues, and has been offering tax-related capacity development (CD) programmes to developing nations. The authors ascertain from the results of an analysis of the parliamentary debate in terms of the contents of DTTs with developing countries and changes in domestic law as well as interviews with several stakeholders in the Netherlands and in developing countries show that the Netherlands is still likely to play a prominent role in global tax avoidance. This applies despite the significant changes in policy and substantive and procedural law. Not all loopholes have been closed, and adopting anti-abuse clauses in DTTs with developing countries – a central part of the Dutch response – has been somewhat disappointing. Moreover, the process of providing tax-related CD is not optimal, and tensions remain regarding the goals that the Netherlands attempts to pursue in tandem, potentially leading to policy incoherence. Moreover, unilateral action is unlikely to result in a reduction of global tax avoidance as financial flows – and therewith tax avoidance – are likely to shift to other countries. The global minimum tax (GMT) and other parts of the two-pillar proposal are more likely to offer a breakthrough for certain types of tax avoidance.Hence, a continued international dialogue on tax matters is needed to address all types of tax avoidance. In the parliamentary discussion on this topic, the Dutch Secretary of State for Finance reconfirmed the policy to assist developing countries in strengthening their tax systems in respect of the GMT through being in favour of a broader scope of Amount B, providing technical assistance in the implementation process of Pillars 1 and 2, and through the OECD’s Tax Inspectors Without Borders (TIWB) project. The objective of this article is to add to the policy discussion on how to strengthen the tax systems of developing countries.\u0000Tax avoidance, double taxation treaties (DTTs), international tax policy, Tax avoidance, double taxation treaties (DTTs), international tax policy, capacity development (CD), anti-abuse clauses, policy coherence, developing countries, BEPS, Addis Tax Initiative (ATI), Foreign Direct Investment (FDI).","PeriodicalId":45365,"journal":{"name":"Intertax","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2024-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140796494","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article is the outcome of the call for papers on the topic ‘Democratic Legitimacy Of Decision Making Process in Tax’ The OECD/G20 IF and the WTO have increasingly been subject to calls for reform in recent years. Imbalanced power asymmetries in agenda setting and deficiencies in decision making mechanisms have contributed to the existential crisis under the WTO and to legitimacy challenges under the international tax rulemaking body by developing countries. This article examines similarities and differences in structural and procedural legal frameworks and political considerations that facilitate the rulemaking processes and compares the lessons that have been learned. The article finds that both institutions have [historically] fallen short of incorporate agenda items of interest aligned to national needs in developing countries, resulting in gradually declining perceptions of legitimacy and exclusionary processes dominated by closed groups of developed countries. As a result, developing countries under the WTO have used decision-making processes to ‘opt-out’ as an exercise of country preferences thereby resulting in gridlocks caused by the exclusionary nature of the agenda. The informal fluid structure of the OECD/G20 IF has facilitated critical global breakthroughs in Base Erosion and Profit Shifting (BEPS) related issues, its exigent nature, however, has conversely resulted in challenges. These have been charachterized by opaque arbitrary procedures on the acceptance and rejection of proposals creates input-legitimacy concerns; timelines that impinge on democratic consultative processes; and the absence of alternative approaches to ‘opt-out’, limiting policy options for developing countries. The article further finds that special and differential treatment (S&DT) provides developing countries with much needed policy discretion to address international trade and tax related issues of interest. This may potentially counteract agenda-setting and decision-making deficiencies in both institutions and offset pre-existing onerous commitments imposed by the single-undertaking principle and BEPS minimum standards. S&DT is not without its challenges and controversies, though deficiencies in the relevancy of measures, lack of enforceability, and disagreements over eligibility highlight current weaknesses. The article explores a number of reforms and proposals. Inclusive-Framework, WTO, agenda-setting, decision-making, rulemaking, S&DT, preferential-treatment, developing, UN, consensus.
{"title":"Article: Agenda Setting and Decision Making under the OECD/G20 IF and the WTO – Developing Countries and Reform","authors":"Mbakiso Magwape","doi":"10.54648/taxi2024033","DOIUrl":"https://doi.org/10.54648/taxi2024033","url":null,"abstract":"This article is the outcome of the call for papers on the topic ‘Democratic Legitimacy Of Decision Making Process in Tax’\u0000The OECD/G20 IF and the WTO have increasingly been subject to calls for reform in recent years. Imbalanced power asymmetries in agenda setting and deficiencies in decision making mechanisms have contributed to the existential crisis under the WTO and to legitimacy challenges under the international tax rulemaking body by developing countries. This article examines similarities and differences in structural and procedural legal frameworks and political considerations that facilitate the rulemaking processes and compares the lessons that have been learned.\u0000The article finds that both institutions have [historically] fallen short of incorporate agenda items of interest aligned to national needs in developing countries, resulting in gradually declining perceptions of legitimacy and exclusionary processes dominated by closed groups of developed countries. As a result, developing countries under the WTO have used decision-making processes to ‘opt-out’ as an exercise of country preferences thereby resulting in gridlocks caused by the exclusionary nature of the agenda. The informal fluid structure of the OECD/G20 IF has facilitated critical global breakthroughs in Base Erosion and Profit Shifting (BEPS) related issues, its exigent nature, however, has conversely resulted in challenges. These have been charachterized by opaque arbitrary procedures on the acceptance and rejection of proposals creates input-legitimacy concerns; timelines that impinge on democratic consultative processes; and the absence of alternative approaches to ‘opt-out’, limiting policy options for developing countries.\u0000The article further finds that special and differential treatment (S&DT) provides developing countries with much needed policy discretion to address international trade and tax related issues of interest. This may potentially counteract agenda-setting and decision-making deficiencies in both institutions and offset pre-existing onerous commitments imposed by the single-undertaking principle and BEPS minimum standards. S&DT is not without its challenges and controversies, though deficiencies in the relevancy of measures, lack of enforceability, and disagreements over eligibility highlight current weaknesses. The article explores a number of reforms and proposals.\u0000Inclusive-Framework, WTO, agenda-setting, decision-making, rulemaking, S&DT, preferential-treatment, developing, UN, consensus.","PeriodicalId":45365,"journal":{"name":"Intertax","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2024-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140789982","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Editorial: A UN Dawn For The International Tax Regime","authors":"Y. Brauner","doi":"10.54648/taxi2024018","DOIUrl":"https://doi.org/10.54648/taxi2024018","url":null,"abstract":"","PeriodicalId":45365,"journal":{"name":"Intertax","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2024-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140465685","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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