Disabusing the Tax Aid Narrative: What Inter-national Tax Equity Really Means for "Poor" Countries and How to (Re)Frame It

Abstract

International tax regimes (e.g., the “double taxation regime”) are created by states with competing tax jurisdiction to coordinate their tax rules and, specifically, to address common efficiency problems like international double taxation. In developing such regimes, states attempt to balance competing tax policy priorities: efficiency, administrability, and equity. This work engages with equity, as a policy norm of international tax (inter-national tax equity). It is my thesis that the framing/articulation of inter-national tax equity suffers from a narrative problem that, perhaps, stems from its apparent conceptual unclarity and multifarious usage. This narrative problem is most evident in the articulation of inter-national tax equity with regard to the taxing rights claims of low-income/developing countries (LIDCs), where there is a tendency to conflate equity with tax aid. I illuminate the potential implications of the narrative problem and then – drawing on subsisting theories of tax jurisdiction, international relations, and reasonableness, respectively – propound the concept of “reasonable impairment compromise” (RIC) as a suitable normative/evaluative framework for inter-national tax equity. RIC claims that: (1) a state’s right to tax is an inherent attribute of its sovereignty; (2) international tax regimes are not strictly technical regimes but are, instead, products of political compromise that overlay/impair the exercise of inherent tax jurisdiction; and (3) the question of whether a particular regime/compromise is equitable (fair) is really a question of reasonableness. Therefore, to measure the fairness of a given compromise/regime, it is apposite to focus on the degree (severity) of impairment. Only a compromise that impairs the exercise of tax jurisdiction to a “reasonable” extent can be deemed equitable. To determine reasonableness, we must weigh the practical implications of the compromise for individual states (or class of states), considering a totality of objective factors. The thesis develops a 5-factor reasonableness test, which I then use to evaluate the fairness of various components of the double taxation regime, as well as the emerging multilateral regime for taxation of the digital economy. For LIDCs, “reasonable” (equitable) would typically – but not always – describe a compromise that does not severely restrict a state’s scope for domestic revenue mobilization.