Abstract
One of the principle objections that can be raised against including tax under the WTO is the sovereignty objection. This chapter is an answer to the arguments that can be invoked by suggesting that taxes be governed by any international organization. It answers the claim first, by reviewing the concept itself. Second, it relies on practical current EU experience. Finally, in identifying the answer to the incompatibility, this chapter will provide an historical overview of tax and trade interrelations.
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Notes
- 1.
- 2.
Hobbes and Bodin “were both driven by a desire to provide an intellectual rationale for the legitimacy of some one final source of authority within the state.” Their goal was to provide a legitimate ground for the King, the notion being that “no final and absolute authority exists elsewhere.” See Krasner (1999, p. 11).
- 3.
See Thomson, p. 219; Hall, p. 17; Jackson and James, p. 13.
- 4.
Lack of definition is common in international law; for example, definitions of direct and indirect tax under the WTO consist of mere examples rather than statements identifying the concepts.
- 5.
The member agencies currently assembled together in the International Organization of Securities Commissions have resolved as follows: to cooperate together to promote high standards of regulation in order to maintain just, efficient and sound markets; to exchange information on their respective experiences in order to promote the development of domestic markets; to unite their efforts to establish standards and an effective surveillance of international securities transactions; and to provide mutual assistance to promote the integrity of the markets by a rigorous application of the standards and by effective enforcement against offenses. See http://www.iosco.org/about/ (April 26, 2007).
- 6.
Members are the central banks or monetary authorities of Algeria, Argentina, Australia, Austria, Belgium, Bosnia and Herzegovina, Brazil, Bulgaria, Canada, Chile, China, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong SAR, Hungary, Iceland, India, Indonesia, Ireland, Israel, Italy, Japan, Korea, Latvia, Lithuania, the Republic of Macedonia, Malaysia, Mexico, the Netherlands, New Zealand, Norway, the Philippines, Poland, Portugal, Romania, Russia, Saudi Arabia, Singapore, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Thailand, Turkey, the United Kingdom and the United States, plus the European Central Bank.
- 7.
History of the Basel Committee and its Membership, http://www.bis.org/bcbs/history.htm (April 4, 2006). See also Zaring (1998, pp. 281, 287–291).
- 8.
- 9.
Anne, p. 1050.
- 10.
This could trigger international reaction to the extent of waging war; the bombing of Serbia is an example of intervening militarily.
- 11.
The ongoing genocide in Darfur serves as an example.
- 12.
See also Rhoades and Langer (1985, § 1.11, 1–3), stating that no rule of international law limits the US power to tax.
- 13.
Meesen also cited another Turkish and US example, acknowledging the limitation on taxing non-citizens.
- 14.
See Treaty Establishing the European Economic Community (Rome, March 25, 1957), also known as the Treaty of Rome.
- 15.
Article 87 in part refers to “[a]ny aid granted by a Member State through State resources in any form whatsoever which distorts competition or threatens to distort competition by favoring certain undertakings or the production or certain good, insofar as it affects trade between Member States.” This provision can be used in answering Warren’s and Graetz’s argument against the involvement of the ECJ (Graetz and Warren 2006, p. 1186).
- 16.
- 17.
Demands continue to intensify for tax decisions within the EU to be made by a strong majority rather than unanimously, a more pressing concern as the EU continues to increase its membership. See Kaye (1996, pp. 109, 126).
- 18.
Case 26/62, Van Gend en Loos v. Nederlandse Administratie Der Belastingen, 1963 E.C.R. 1, 9–10.
- 19.
See Treaty Establishing the European Economic Community (Rome, March 25, 1957); also known as the Treaty of Rome. For a discussion of the role of the European Court of Justice, see Art. 7, 68, 220–245.
- 20.
Treaty of Rome, art. 228 (consolidated version), see also Kaye (1996, p. 126).
- 21.
Treaty of Rome, art. 39.
- 22.
Treaty of Rome, art. 43.
- 23.
Treaty of Rome, art. 49.
- 24.
Art. 56 of the Treaty of Rome states:
1. Within the framework of the provisions set out in this chapter, all restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited.
2. Within the framework of the provisions set out in this chapter, all restrictions on payments between Member States and between Member States and third countries shall be prohibited.
Article 58 then provides that taxing different people is not prohibited, saying:
1. The provisions of Article 56 shall be without prejudice to the right of Member States:
(a) to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested;
(b) to take all requisite measures to prevent infringements of national law and regulations, in particular in the field of taxation and the prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security.
3. The measures and procedures referred to in paragraphs 1 and 2 shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 56.
Note the language similarities between this article and the GATT or GATS versions, specifically with respect to “arbitrary” and “disguised restriction.” Another article is the fiscal State aid in Article 87.1 stating that: “Any aid granted by a Member State through State resources in any form whatsoever which distorts competition or threatens to distort competition by favoring certain undertakings or the production or certain good, insofar as it affects trade between Member States.”
- 25.
EC Commission v. French Republic, C-270/83 (1986).
- 26.
Schumaker, ECJ in ECR (1995), I-225, Para 21.
- 27.
GATT Panel Report, Italian Discrimination Against Imported Agricultural Machinery, L/833, adopted October 23, 1958, BISD 7S/60.
- 28.
GATT Panel Report, Italian Discrimination Against Imported Agricultural Machinery, L/833, p. 1254.
- 29.
GATT Panel Report, Italian Discrimination Against Imported Agricultural Machinery, L/833, p. 1255.
- 30.
Source unknown.
- 31.
It seems a logical combination. Other names are Treaty of Amity and Commerce, Treaty of Amity and Commerce, Treaty of Peace and Friendship, Treaty of Amity, Commerce and Navigation, for a general historical overview see, Vandevelde (2005, pp. 157, 159).
- 32.
Gardner, writing that international policies “must be made piece by piece – the pieces not always fitting very neatly together” (Gardner 1980, p. 423).
- 33.
The UN publication, 1946–2003, “contains the texts of over 158,000 records of bilateral and multilateral treaties and subsequent treaty actions in their authentic language (s), along with a translation into English and French, as appropriate.” http://untreaty.un.org.ezp2.harvard.edu/English/access.asp visited April 3, 2006.
- 34.
The issue during that time was whether a woman who was married to a man from a different village was liable for payment of property taxes in both locations (Seligman 1928, p. 33).
- 35.
See also a short story about this issue cited in Herndon (1932, p. 11).
- 36.
Herndon (1932, p. 16). See also, Carroll (1927, p. 2). Though Carroll claimed this to be the first early treaties, his claim can be disputed. Take for example the treaty between the USA and Nassau concluded in 1846, entitled: Convention for the Mutual Abolition of the Droit d’Aubaine and Taxes on Emigration Between the United States of America and his Royal Highness the Duke of Nassau; May 27, 1846. See Avalon project at Yale Law School. http://www.yale.edu/lawweb/avalon/diplomacy/germany/nas1846.htm last visited (1/12/2006).
- 37.
Also see, K. Julius, Forward in Carroll (1927, p. II), stating that the tax rates were “in general so low that having to pay taxes in two countries on the same income didn’t constitute a burden on trade. But rate mounted during and after the war.” Also see, Herndon (1932, p. 7). See also, Rosenbloom and Langbein (1981, pp. 359, 361).
- 38.
Cooperation could be seen from using similar concepts and asking for similar solutions. Take for example, the urgent request to define important concepts like residency. The report by the League of Nations stated that “in order to avoid double taxation, domicile or habitual residence must everywhere be interpreted alike for the purposes of taxation.” See League of Nations, Economic and Financial Commission, Report on Double Taxation, submitted to the Financial Committee of the League of Nations, prepared by Professors Bruins, Einaudi, Seligman and Sir Josiah Stamp, E.F.S. 73, F. 19 (Geneva, April 3, 1923), p. 26. The report by the ICC stated that “there must be a international agreement as to the meaning of domicile, applicable to individuals and corporations.” See Herndon (1932, p. 25).
- 39.
League of Nations, Economic and Financial Commission, Report on Double Taxation, submitted to the Financial Committee of the League of Nations, prepared by Professors Bruins, Einaudi, Seligman and Sir Josiah Stamp, E.F.S. 73, F. 19 (Geneva, April 3, 1923). See Graetz and O’Hear (1997, pp. 1066–1077).
- 40.
League of Nations, Economic and Financial Commission, Report on Double Taxation, submitted to the Financial Committee of the League of Nations prepared by Professors Bruins, Einaudi, Seligman and Sir Josiah Stamp, E.F.S. 73, F. 19 (Geneva, April 3, 1923), p. 2.
- 41.
League of Nations, Economic and Financial Commission, Report on Double Taxation, submitted to the Financial Committee of the League of Nations prepared by Professors Bruins, Einaudi, Seligman and Sir Josiah Stamp, E.F.S. 73, F. 19 (Geneva, April 3, 1923), p. 3.
- 42.
Mitchell, p. 697.
- 43.
Mitchell, p. 689.
- 44.
When “technical experts came together, their concern was to enter into some arrangements which would be politically agreeable to their respective countries.” (Seligman 1928, p. 143).
- 45.
Hancher and Moran, p. 23.
- 46.
For an excellent discussion of what occurred, see Graetz and O’Hear (1997, pp. 1083–1090).
- 47.
Bilateral Convention for the Prevention of Double Taxation in the Special Matter of Direct Taxes, dealing with income and property taxes; Bilateral Convention for the Prevention of Double Taxation in the Special Matter of Succession Duties; Bilateral Convention on Administrative Assistance in Matters of Taxation; and Bilateral Convention on [Judicial] Assistance in the Collection of Taxes.
- 48.
Mitchell, p. 699, see also Wang (1945, p. 90).
- 49.
Mitchell, p. 699.
- 50.
Report to the Council on the Work of the Third Session of the Committee, League of Nations Doc. C.415 M.171 1931 II A, pp. 3, 13–16 (1931). See also Hudson and Turner (1984, pp. 562, 571).
- 51.
The principle requires related countries to deal with each other, for tax purposes, as if unrelated. See Rosenbloom and Langbein (1981, pp. 359, 367).
- 52.
Mitchell, p. 708.
- 53.
Mitchell, p. 708.
- 54.
The OEEC’s main goal was to rebuild Europe by administering the Marshall Plan for the reconstruction of the continent following the war. See Salzman (2005, p. 189).
- 55.
OECD, Report by the Committee on Fiscal Affairs, Model Double Taxation Convention on Income and Capital (April 11, 1977), Introduction at par. 5.
- 56.
OECD, 2005 Model Convention, note 15.
- 57.
OECD, Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (1995).
- 58.
OECD, Draft Discussion on Transfer Pricing (OECD, Paris, 1994).
- 59.
Legislation designed to combat such manipulation originated in Regulation 41, articles 77 and 78, of the War Revenue Act of 1917, which gave the Commissioner authority to require related corporations to file consolidated returns “whenever necessary to more equitably determine the invested capital or taxable income.” T.D. 2694, 20 Treas. Dec. Int. Rev. 294, 321 (1918). Since 1921, the USA has been active in fighting the transfer pricing issue, and in 1968, section 482 authorized the United States Tax Commissioner to reallocate income among controlled enterprises using the arm’s length principle. I.R.C. § 482 (1988). See Fuller (1990, p. 421); Loengard (1991); Wickham (1991, p. 1).
- 60.
OECD, Transfer Pricing and Multinational Enterprises (1979).
- 61.
OECD, Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (1995).
- 62.
OECD, Harmful Tax Competition: An Emerging Global Issue (1998), available at http://www.oecd.org/dataoecd/33/0/1904176.pdf (visited Feb. 11, 2006). See also Littlewood (2004, p. 411), suggesting that “the OECD’s manner of operation has been opaque and in some respects arbitrary” and that its approach to the “identification of tax havens seems flawed.” Littlewood further argues that, “the OECD’s approach to the identification of preferential regimes seems unsatisfactory as does the distinction that the Organization draws between ‘harmful’ and ‘harmless’ preferential regimes.”
- 63.
A harmful preferential tax regime is essentially a targeted tax incentive; a country might operate a normal tax system, but exempt specified classes of income from tax (or subject them to tax at lower rates than apply to other forms of income). The report establishes four criteria that, if met, would indicate a nation is applying harmful tax practices: (1) no effective exchange of information; (2) lack of transparency; (3) no substantial activities or ring-fencing from domestic activities; and (4) simultaneously offering low, non-existent, or nominal tax rates.
- 64.
Harmful Tax Competition Report (1998), p. 37.
- 65.
- 66.
See E.S.L. Res. 1273,. 43 UN. ESCOR, Supp. (No. 1) 5, U.N. Doc. E/4429 (1967), in United Nations, Department of Economic and Social Affairs, Tax Treaties Between Developed and Developing Countries, Part I, Annex 1, U.N. Doc. E/4614, ST/ECA/110 (New York, 1969).
- 67.
The countries originally represented were Argentina, Chile, France, Federal Republic of Germany, Ghana, India, Israel, Japan, Netherlands, Pakistan, Philippines, Sudan, Sweden, Switzerland, Tunisia, Turkey, United Kingdom, and the United States. A Representative from Sri Lanka was added in 1972, and a representative from Brazil in 1973.
- 68.
Austria, Belgium, Finland, the Republic of Korea, Mexico, Nigeria, Spain, Swaziland, and Venezuela. See United Nations, Model Taxation Convention Between Developed and Developing Countries, 85 TNI 41-66 (December 1, 1979), Introduction, Part A, Origin of the United Nations Model Convention.
- 69.
International Monetary Fund, the International Fiscal Association, the Organization for Economic Co-operation and Development, the Organization of American States and the International Chamber of Commerce. See United Nations, Model Taxation Convention Between Developed and Developing Countries, 85 TNI 41-66 (December 1, 1979), Introduction, Part A, Origin of the United Nations Model Convention.
- 70.
United Nations, Model Taxation Convention Between Developed and Developing Countries.
- 71.
The Andean Group is also known as the Latin American Free Trade Association.
- 72.
The Model Convention for the Avoidance of Double Taxation Between Member Countries and Other Countries Outside the Subregion.
- 73.
The Most Favored Nation (MFN) principle is also very important in tax matters. Addressing just one of these central principles would be enough from a historical point of view. To take an example, the treaty between the USA and Prussia of 1785 stated in articles 2 and 3 that: “The subjects of his majesty the king of Prussia, (citizens of the United States of America) may frequent all the coasts and countries of the United States of America, and reside & trade there in all forts of produce, manufactures and merchandise; and shall pay within the said United States no other or greater duties, charges or fees whatsoever than the most favored nations are or shall be obliged to pay; and they shall enjoy all the rights, privileges and exemptions in navigation & commerce, which the most favored nation does or shall enjoy; submitting themselves, nevertheless to the laws and usages there established, and to which are submitted the citizens of the United States, and the citizens and subjects of the most favored nations.” Avalon Project Yale Law School, http://www.yale.edu/lawweb/avalon/diplomacy/germany/prus1785.htm.
- 74.
See also US Department of State, Office of Public Affairs, Commercial Treaties and US Economic Foreign Policy (1950), p. 3.
- 75.
US Dept. of State, Office of Public Affairs, Commercial Treaties and US Economic Foreign Policy (1950), p. 4.
- 76.
II Hertslet Treaties and Conventions 8, 10 (1840), cited in Bischel (1978, p. 421, footnote 8).
- 77.
US Department of State, Office of Public Affairs, Commercial Treaties and US Economic Foreign Policy (1950), p. 2.
- 78.
See also US Department of State, Office of Public Affairs, Commercial Treaties and US Economic Foreign Policy (1950), pp. 2–3.
- 79.
The USA and Argentina.
- 80.
Cairo, October 29, 1889; Entry Into Force [UK/Egypt] January 1, 1890.
- 81.
France–United States. Convention of Establishment, with Protocol and Joint Declaration. Paris, November 25, 1959.
- 82.
Treaty of Friendship, Commerce and Navigation and Protocol Concerning the Provisional Economic Arrangement Between Germany and Siam Signed at Bangkok, April 7, 1928.
- 83.
Final Act of the United Nations Conference on Trade and Employment: Havana Charter.
- 84.
United Nations Conference on Trade and Employment (1946).
- 85.
- 86.
Grander, p. 364.
- 87.
Thomas, p. 133.
- 88.
Dam (2005, p. 709), stating “[I]t went well beyond trade negotiations to include a full range of economic chapters ranging from commodity agreements to economic development and even to employment. When one considers the socialist thinking – nationalizations and central planning that were so much the vogue in the late 1940s – we are perhaps fortunate that it failed.”
- 89.
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Althunayan, T. (2010). Sovereignty. In: Dealing with the Fragmented International Legal Environment. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-04678-0_5
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