The Cum-ex Case: A Look at Germany

This paper focuses on a particular form of stock-market trades around ex-dividend days, so-called “cum-ex” transactions, which have resulted in major revenue losses due to illegitimate tax refunds in Germany and other European nations. Until 2012, the loophole in the German withholding tax scheme made it possible for cum-ex traders to receive withholding-tax certificates without prior withholding-tax payment. Because a certain category of investors might use the tax certificates to gain a tax exemption, this opened up the prospect of a particular form of tax arbitration. It was not until 2018 that a cross-border investigation team called the Cum-Ex Files revealed the scandal to its full extend.This paper will mainly focus on the cum-ex scandal in Germany since the literature on the topic is very limited.

“An Unacceptable Surrender of Fiscal Sovereignty”: The Neoliberal Turn to International Tax Arbitration

The growth of inequality over the past half century is closely connected to the rise of neoliberal policies and institutions, the latter of which shield capital from state actions that might limit wealth accumulation. Economic nationalism since the global financial crisis has slowed or even reversed this, yet this same era has seen the emergence of a new form of instrument in the neoliberal mold, in a stronghold of state sovereignty: taxation. Under mandatory binding tax arbitration, states cede sovereignty over the interpretation of international tax agreements to panels of transnational tax adjudicators. Focusing on the pivotal role of the United States, we use historical documents, including from the congressional archive and interviews with key actors to ask why tax arbitration emerged late in the neoliberal era, and at a counterintuitive time. We demonstrate that this outcome is the result of instrumental business power driving a process of incremental change through layering, to overcome states’ preference to retain sovereignty. This experience sheds light on the historically structured ways that business power constrains sovereignty in an era of high inequality.

Taxation of Digital Companies: Experience of Russia and Other CountriesLegal Regulation of Non-Judicial Methods of Consideration and Resolution of Tax Disputes: Tax Ombudsman, Tax Arbitration and Mediation in Tax Disputes

Probably, as in any state, in the sphere of legal regulation of relations between business and the state, the public interests of the state are always above the private interests of business. Any democratic and legal state, including Kazakhstan, is based on the principles of equality of all before the law and the court, as well as the rule of law. The tax legislation of Kazakhstan does not provide for a legal mechanism for the consideration of tax disputes arising between a taxpayer and an authorized state body by any non-judicial organizations. All tax disputes are subject to consideration on complaints of the taxpayer to the higher authorized tax authority and only after receiving the decision of the higher state body, this dispute can be referred to the court. This paper deals with problematic issues of tax law related to the attribution of all tax disputes to consideration exclusively by the higher authorized tax authority and later by the court, which always guard the interests of the state, which in practice causes distrust of businessmen and investors to the state. In this regard, this paper examines out-of-court methods of resolving tax disputes, international experience in resolving tax disputes by out-of-court organizations.

The Resolution of Tax Disputes and International Tax Arbitration

Globalisation and the digital economy have revolutionised the world’s markets and international transactions, some of which manage to escape national jurisdictions and bilateral treaties between States. With the lack of multilateral agreements, certain taxpayers, multinationals in particular, have managed to slip through the net of individual countries’ tax regulations and been able to reduce their tax payments. To resolve tax disputes between taxpayers and States, with the chief goals of avoiding double taxation and not being subject to any tax jurisdiction, a number of multilateral measures have been instituted, including—amongst other mechanisms—binding international tax arbitration proceedings. The OECD and the EU are fostering the implementation of such measures, whose goal is to prevent tax avoidance and achieve a fair spread of tax burdens on an international level.

ARBITRAGEM TRIBUTÁRIA: ASPECTOS TEÓRICOS E POSSIBILIDADE JURÍDICA / TAX ARBITRATION: THEORETICAL ASPECTS AND LEGAL POSSIBILITY

O atual momento de litigiosidade e ineficácia do sistema de cobrança de débitos tributários merece atenção e uma revisão profunda. A falha na cobrança dos débitos fiscais tem como resultado a falha também na prestação dos serviços que dependem destes numerários. Neste ambiente, o trabalho pretende apresentar os fundamentos teóricos que justifiquem a arbitragem tributária como mecanismo viável de resolução de litígios

A ARBITRAGEM EM MATÉRIA TRIBUTÁRIA NO BRASIL: AVANÇOS E DESAFIOS / TAX ARBITRATION IN BRAZIL: ADVANCES AND CHALLENGES

A partir de uma leitura contemporânea dos métodos adequados de solução de controvérsias no bojo do processo tributário, o artigo examina, com ênfase na arbitragem, os métodos mais apropriados para garantir o efetivo acesso à justiça que responda aos anseios sociais e, ao mesmo tempo, satisfaça a necessidade de recuperação dos entes federativos dos créditos inscritos em dívida ativa.

Tax Arbitration Through Offshore Centres and Tax Havens

The aim of the study is to capture the most relevant aspects regarding the functioning of offshore centres and tax havens, focusing in particular on the most important conceptual and instrumental clarifications. There are several angles to approach the phenomenon of tax evasion that are pointed out in this article, alongside a comparison of various analytical perspectives and, based on these, a number of judgments regarding their (in)opportunity are issued. In order to make a consistent description of the tax havens, it is necessary to clarify the fundamentals, the specific determinants and the factors without which these structures could not exist in the first place, the main hypothesis being that the boundary between tax arbitration and tax evasion is highly ambiguous and this is the major rationale why polemics on this topic arise. The goal is to present as objectively as possible these offshore centres and tax havens activities, which are paramount financial centres, irrespective of the criticism made by those who deem them unfair, immoral or even evil, as well as dangerous. This article focuses on tax planning and tax arbitration practices (e.g., “treaty shopping”), concluding with a collection of rationales for a balanced view on fiscal competition.

Interpretative complexity and tax law changes: the taxation of corporate expenses in Portugal

Purpose Autonomous taxation of expenses (ATE) is a special and contentious feature of corporate income taxation in Portugal. By taxing of an expanding set of corporate expenses, it has caused many conflicts between the Portuguese tax authority and corporate taxpayers. Many of these conflicts emerged from the legal interpretation of ATE’s clauses, while others derived from frequent, and difficult to apply, legislative changes. The purpose of this paper is to focus on the following research question: does the recent evolution of the rules on ATE show an efficient process of making and interpreting tax law in Portugal? The authors intend to analyze the process of making and changing ATE’s rules, as well as to study how interpretative complexity increases conflicts between tax authorities (TA) and taxpayers. Design/methodology/approach The methodology used is a mix of the legal research method, namely, doctrinal methodology, with an analysis of jurisprudential and arbitration trends in litigation rulings, blended with the case study analysis of ATE in Portugal. Arbitration rulings will have a particular relevance to the analysis. Findings The main conclusion is that, urged by the need of revenues, and sensitive to the TA’ argument of ATE’s loopholes, the government hastened to close them. However, given the procedure adopted, new legal questions aroused, creating additional layers of complexity for companies, courts and tax auditors. Constitutional issues were highlighted by companies based on the prohibition of retroactive application of tax laws. Research limitations/implications The paper has a conceptual nature and its conclusions cannot be automatically extended to other tax controversies or processes of amending tax laws. However, for the legal and accounting professions it offers valuable lessons in law interpretation and political lobbying to change tax laws. Also, in the international tax scene, some countries also introduced ATE, with potential for similar problems. Practical implications Regarding ATE’s streamlining, the process recently observed in Portugal was not, in authors’ view, managed in the best way, leaving a significant number of difficulties to be solved by courts. The change in ATE’s legal framework could have been more carefully managed, avoiding costly and time consuming disputes, in order to minimize compliance costs. Originality/value The paper contributes to the literature because this Portuguese experience, while highlighting the difficulties in making tax law, can be seen as a lesson on how to improve these processes, avoiding time and costs for business, TA and courts. Moreover, arbitration is a way of solving tax disputes that has been gaining ground in Portugal. In this respect, the paper also contributes to a better perception of the tax arbitration scenario in anEuropean Union country. It is also important for the accounting profession, whose members have often to deal with tax topics and the interpretative complexities they originate.