The Data Economy: On Evaluation and Taxation

While data-centred business models are claiming an ever-growing share of worldwide revenue, regulatory efforts to identify proper tax rules for the relevant activities are intensifying. It is questionable whether or not the proposals currently on the table capture the distinctive features of the data economy. The formulation of appropriate tax rules requires a thorough understanding of the mechanics of data processing activities and due consideration of the difference between information, which is an intangible asset, and tangible assets.

It is widely acknowledged in the areas of business, legislation and policymaking, as well as administration and human rights protection, that the dominion of data is increasing. This is clearly illustrated by the series of legislative initiatives launched and/or adopted in order to provide a legal framework applicable to the unstoppable flow of data.

Data collection and analysis are not, however, new processes. In particular, data processing is deemed to encompass:

any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

Published in: European Taxation, 2019 (Volume 59), No. 5 - 15 April 2019

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International Tax Dispute Resolution: New EU Rules

lnternational tax disputes arise, in principle, where

  1. there is a bilateral or multilateral treaty for the avoidance of double taxation (hereinafter "Double Tax Convention" or "DTC") or an equivalent instrument and

  2. the contracting jurisdictions exercise their taxing power in a manner resulting in violation of its provisions.

In addition, such disputes can also arise without violation of the DTC (including equivalent instruments), if there  is disagreement or uncertainty in relation to the correct application of its provisions. In a nutshell, international tax disputes can arise, if there is a framework agreed between two or more jurisdictions regarding the exercise of their taxing power in cases involving both of them (in principle in a DTC).

In their vast majority, existing DTCs previde for the resolution of the above disputes through the so-called mutuai agreement procedure or MAP, following the respective provisions of the OECD Model Tax Convention (hereinafter the "OECD Model"). MAP aims at dispute resolution through agreement between  the national tax authorities involved, on the basis of dialogue and cooperation, following request by the taxpayer affected.

Published in: IAFEI Quarterly (43rd Issue) - 11 April 2019

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Geotaxation and the Digital: Janus in the Mirror

Geopolitics has been defined as ‘great power competition over access to strategic locations and natural resources’.
In essence, it focuses on the impact of geography on international political relations and vice versa.
The principal actor in international political relations is the state. And the effective power to tax is historically a constitutive element of the state. Tax revenue is, in fact, one of the fundamental resources for the modern state to perform its role, i.e. to ensure security of the people in its territory and to deliver its policy objectives.
Tax policy can, therefore, be considered of key relevance for national sovereignty. In this light, geotaxation can be understood as the study of the interactions between geography and the international tax framework.

It focuses on international tax relations and their development under the influence of geographical factors. Thus, it considers collaborations among different states at various levels, such as the League of Nations, the OECD, the BEPS Inclusive Framework, the UN, the IMF and the European Union, and their impact on national and international tax policy.

Published in: Intertax (Vol.47) - 18 March 2019

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Competitive Taxation and Tax Competition: The Winner Takes it All?

The Debate

What makes a tax system competitive?
How can countries multiply the competitiveness of the existing system?
These question-marks are attracting substantial research by today’s policy makers, at national and international level as well as by business lobbyists. Most importantly, their potential replies entail significant impact for taxpayers and the society in general. Indicatively, one of the principal objectives of European Commission’s 2015 Action Plan for A Fair and Efficient Corporate Tax System was to create “a competitive and growth-friendly corporate tax environment for the EU”. On a similar pattern, the 2018 Digital Tax Package seeks to enhance the competitiveness of the Single Market. At the other side of the Atlantic, the fiercely debated U.S. tax reform had one clear-cut objective, to increase the competitiveness of the U.S. tax system.

Published in: Kluwer International Tax Blog - 4 March 2019

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Cyber-Diplomacy and Digital: Some Legal and Economic Aspects

For thousands of years the human species was constrained to limit its activities and creativity in the planetary space. Today, the Digital Revolution has opened a new space: the cyber-space, removing the limits once and for all.

Cyber-space is understood as a virtual world, a notional environment existing in and due to the network of telecommunication technologies. Although untouchable; it interacts with the physical world in the most dynamic manner with material consequences in the latter. The distinctive features of the cyberspace, deriving from its virtual nature, include:

  1. the lack of physical borders and hence also of national frontiers;

  2. the lack of distance or unification of physical space, meaning potential multiple presence of the event in any number of physical locations;

  3. the nullification of time, since any event can happen in zero-time with a simple click and expanded impact;

  4. anonymity or potential anonymity through the creation of profiles (even multiple ones) by the users.

Published in: Kluwer International Tax Blog - 8 January 2019

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McDonald’s Fiscal State Aid Clearance: Questions Still Pending

Following three years of investigation, McDonald’s has been cleared from the charge that it received fiscal state aid from Luxembourg, by virtue of the European Commission’s concluding decision of 19 September 2018. Thus, the Commission seems to have closed one of the various fronts opened in the fiscal state aid area in the last five years, including cases like Apple, Starbucks and Engie. Yet, the war is much ampler and critical questions remain still pending.

From a business perspective, the ongoing fierce debate entails important implications and requires close monitoring. On the one hand, taxpayers need to ensure their timely intervention in cases concerning tax measures from which they themselves or their competitors have potentially benefitted. On the other hand, major part of the Commission’s recent investigations focuses on tax rulings, questioning their validity as an instrument to obtain tax certainty. The outcome of the debate shall determine the expectations taxpayers can place on the tax rulings they have or request from EU Member States and subsequently their alternatives to ascertain their tax liability in the Single Market.

Published in: Kluwer International Tax Blog - 4 december 2018

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Digitalization. Making the Best out of International Taxation’s Disrupters

International taxation is undergoing the most tremendous overhaul of the last 100 years. New standards have been identified at international level, bilateral tax treaties are re-negotiated in a multilateral context, discussions are ongoing on the next changes.

The outburst of the transformation is usually identified about five years ago, when the OECD launched its Base Erosion and Profit Shifting (BEPS) Project, in 2013. However, the change had in fact started much earlier, when new technologies began revolutionizing our every-day lives. Distances shortened. Time intensified. A new world order arose, where virtuality is the new reality and ideas the new gold.

Published in: Finance&Gestion - n. 363 - October 2018

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Bitcoin and Virtual Currencies Are Real: Are Regulators Still Virtual?

It is already ten years that the bitcoin is on the market; and twenty years from the primary conception by Wei Dan of a currency exploiting cryptography. Yet, only today is the bitcoin on the main headlines of daily newspapers and TV newscasts all around the world and its value fluctuations closely monitored on a number of websites. If a couple of years ago virtual currencies were a topic for policy-making elites, nowadays they have reached all classes, irrespective of profession and interests.

The virtual currency market is evolving with the speed of light. This should not be a surprise though, taking into account the parallel ongoing development of digital economy. Both, virtual currencies and digital economy provoke concerns, mainly due to the lack of information, while they also contain the promise of an infinite and innovative potential. The technology behind Bitcoin, blockchain or digital ledger technology, is in fact expected to overhaul the way transactions are performed and records are kept.

Published in: INTERTAX, Volume 46, Issue 6 & 7

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Au fil des années, la CFE est devenue un interlocuteur privilégié au sein des institutions européennes

L'IEC est membre d'un certain nombre d'organisations internationales qui lui permettent de représenter les intérêts de ses membres au niveau international et au sein de différentes institutions, mais aussi d'échanger de nombreuses informations et de se préparer ensemble à l'avenir. L'IEC est membre de la CFE spécifiquement pour les conseils fiscaux, car elle est l'organisation européenne défendant ces professionnels. Le président de la CFE a accepté de répondre à nos questions pour nous en dire un peu plus sur la CFE, comment elle défend la profession et pourquoi il est important pour nous conseils fiscaux d'être membres.

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The Italian Web Tax from a National and International Perspective

Published in: IBFD Europe an Taxation - May 2018

To ensure taxation of digital business profits, Italy has introduced a web tax on digital transactions relating to a supply of services, sparking debate both domestically and internationally, since proposals are expected from the OECD and the European Union for coordinated solutions to the issue.
This article provides an overview of questions that the Italian web tax has generated, concluding that Italy’s actions have set off alarm bells that should promote prompt cooperation internationally.

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Digital Revolution. Tax Revolution?

Published in: Bulletin for International Taxation IBFD, 2018 (Volume 72), No. 4a/Special Issue

What seemed like science fiction a few years ago is now science fact. This is referred to as the “Digital Revolution”. And this is evident in the next generation of high technology, which is no longer developing intelligent computers and cyborgs, but is seeking to surpass human beings by creating genuine artificial intelligence (AI).

The Digital Revolution has given rise to new ways of doing business. Taxation and law, in general, cannot remain unaffected. New rules are vital to regulate the new realities and to ensure smooth coexistence in new environments. With regard to international taxation, a significant worldwide effort has been, and is being, made to deal with the extent and nature of the implications of the aforementioned scenario and to provide appropriate responses.

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EU Black List, a New Perspective on Tax Havens

Published in: IAFEI Quarterly 39th Issue, January 2018

The European Union recently took one more step in the worldwide fight against tax avoidance and evasion with the release of the common EU list of non-cooperative tax jurisdictions.
The EU black list – the first such list at EU level – includes seventeen off shore countries: American Samoa, Bahrain, Barbados, Grenada, Guam, South Korea, Macao SAR, Marshall Islands, Mongolia, Namibia, Palau, Panama, Saint Lucia, Samoa, Trinidad and Tobago, Tunisia and United Arab Emirates.

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Spirit of Tax Law and Tax (Non-)Compliance: Reflections on Form and Substance

Published in: IBFD European Taxation January 2018

In complying with their tax duties, multinationals need to align their conduct with both the letter and spirit of the law. The latter requires identifying legislative intent, which is challenging in a rapidly evolving business and tax environment that is increasingly globalized and digitalized. In addition, tax avoidance legislation is increasingly being employed against aspects of non-compliance with the spirit of the law. The need for clear legislative drafting arises, therefore, as a necessary guarantee to prevent abusive interpretations.

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A European Taxpayers’ Code

Published in: Journal - Intertax 45-12

The European Commission published ‘Guidelines for a Model for A European Taxpayer’s Code’. The Guidelines seek to clarify taxpayers’ fundamental rights and obligations in the EU while proposing best practices for their enhancement. The European initiative follows several international ones to the same end. Their comparison reveals the Guidelines’ rather restricted scope. Although they constitute a step forward, they fall short of their potential, demanding further steps to ensure due protection of taxpayers’ rights.

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Italy Turns Up the Heat on EU with Digital Sales Tax

Published in: TPWeek

Italy is hoping its proposed digital sales tax will send a message to the EU and accelerate the process of finding consensus on digital economy taxation. However, the proposal interferes with the EU’s plans and could create double taxation scenarios.

Italy hopes to curb tax avoidance by digital companies with a proposal for a new digital sales tax that, if approved, would apply from January 1 2019. The proposal would impose a 6% tax on digital transactions made through electronic means to Italian tax residents with business income, and to Italian permanent establishments (PE) of non-tax residents. This will work out as the buyer paying the service provider 94% of the amount, while withholding 6% for the Italian Treasury.

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