Who generated the loopholes? A case study of corporate tax advisors’ regulatory capture over anti-tax avoidance legislation in Finland

Recently welfare economists and international political economy scholars have increasingly discussed how the corporations seek profits by corroding policies that tackle tax avoidance and undermine public interest. This article contributes to these discussions on so-called regulatory captures in the global wealth chains by providing a comprehensive case study on anti-tax avoidance legislative processes in Finland. The author analyzes the statements that various stakeholders provided during several phases of enacting the interest deduction limitation rule that targets so-called thin capitalization arrangements. Because of this specific research material, the author is able to undertake a nuanced analysis in describing how and whose statements made the difference from the draft version of legislation to the final wording of the law. The evidence suggests corporate interest groups and tax advisory firms influenced the content of the rule as notable tax base eroding loopholes have been included in the Finnish anti-tax avoidance rule. The author also assesses remedies of regulatory captures.

Jurisdiction Not to Tax, Tax Sparing Clauses, and the OECD Minimum Taxation (GloBE) Proposal

The OECD Programme of Work on the tax challenges arising from the digitalization of the economy comprises a so-called GloBE (Global Base Erosion) or Pillar Two proposal, consisting of a series of measures aimed at establishing a floor to tax competition by achieving minimum taxation of the income obtained by in-scope multinational enterprises. If such a measure is implemented, developing countries would be severely deprived of the possibility to grant tax incentives to attract FDI and potentially foster economic growth. This contribution emphasizes the importance of the thorough review of their tax policy preferences that developing countries should undertake amidst the rapid adoption of GloBE, which the OECD is pushing to achieve. To illustrate this concern, an examination of implementation issues shows that a deficient enactment of the income inclusion rule proposed in GloBE could paradoxically trigger the applicability of tax sparing clauses aimed at protecting the effectiveness of tax incentives, even when both sets of rules pursue opposing goals.

Introduction: A Contemporary Guide to Tax Justice and Tax Fairness

This is an introduction to the research papers that make out this Nordic Tax Journal special issue on inequality within the international tax regime. The special issue is an outcome of the discussions that took place at the (online) conference hosted by Copenhagen Business School in September 2020. In addition to introducing the papers of this special issue, this introduction also provides a contemporary guide to tax justice and tax fairness with an emphasis on theories and principles applicable to the international tax context as this was the overall theme of the conference.

The Rhetorical Handling and Construction of Uncertainty in Tax Litigation Concerning Valuation of Financial Instruments

A tax litigation concerning the value of non-traded financial instruments is impregnated by uncertainty. The aim of this paper is to study how uncertainty inherent in financial valuation models is discursively and rhetorically handled and constructed by the litigating parties as well as the court. A discourse analysis guided by the notion of hedging is conducted on The Swedish Tax Agency v. PwC (2013, 2014). The analysis demonstrates a sparse use of hedging. Rather, certainty characterizes tax litigation. However, the analysis shows that the litigating parties as well as the court participates in the construction of claims as facts, distancing themselves from their own claims and decisions.

Ethical and Legal Responsibility of Multinational Corporate Groups for a Fair Share of Taxes

This paper deals with the question whether there are reasons to deem multinational corporate groups ethically or legally responsible for paying their fair share of taxes. Ethical concepts argue that companies should generally be held responsible, but these findings contradict the mainstream market theory that understands companies as legal fictions and therefore not ethically but merely legally responsible. In contrast, we base our argumentation on the political-cultural market theory. We find that this theory provides reasons to ascribe an ethical responsibility for paying their fair share of taxes to multinational corporate groups. We argue, moreover, that this ethical responsibility also speaks for a legal responsibility. The prevailing tax law, particularly the arm's length principle, does generally not see groups as tax subjects. This currently missing legal responsibility gives reasons to rethink tax law. Therefore, we analyze whether the OECD Pillar One proposal may be an alternative to existing law.

The freedom of cross-border funding in multinational groups and European Union law

Member states often try to restrict cross-border debt financing in multinational groups. The pending Swedish case, Lexel AB, C-484/19, is a prime example. The Swedish tax law operates with a vague legal concept of tax abuse that is completely inappropriate to identify tax-abusive financing and disadvantages only foreign groups. This paper analyzes the Swedish rules on interest limitation in affiliated groups (C-484/19), which refers to substantial tax benefits, against the background of the European Union law and the finance theory. In this regard, a breach of European Union law can be found. This also applies to the current Swedish tax law. Moreover, the interest limitation rules are analyzed from the background of the principles of finance theory, particularly the interest coverage ratio (ICR). In this context, a comparative analysis is carried out between the Swedish rules and the Anti-Tax Avoidance Directive (ATAD) provision (Art. 4). Adequate regulations on the limitation of interest should cope with the problem of profit shifting, also preserve the freedom of financing, particularly in multinational groups, and should not contain any difference in treatment between domestic and foreign groups.

Legal Pragmatism – A Useful and Adequate Explanatory Model for Danish Adjudication on Tax Avoidance?

The author explores whether legal pragmatism may function as a useful and adequate explanatory model for the case law on tax avoidance unfolding in the Danish Supreme Court. In doing so, the underlying ideas of philosophical and legal pragmatism are initially re-visited while the general interpretational approach of the Danish judiciary is briefly outlined. Subsequently, the general approach to interpretation of Danish tax law is presented and the prevailing opinions on tax avoidance in the Danish doctrine are touched upon. This provide the necessary foundation for the following legal analysis of the Danish Supreme Courts’ case law on tax avoidance. Based on this analysis, it is concluded that legal pragmatism may actually function as a useful and adequate explanatory model for the Danish Supreme Court's case law on tax avoidance. Awareness of this pragmatic inclination may facilitate a better understanding of the Danish Supreme Court's approach in difficult cases on tax avoidance and enhance the possibilities of predicting the outcome of such cases.

The Taxation of Industrial Foundations in Sweden (1862–2018)

It has been argued that the Swedish tax system has favored firm control through industrial foundations, which should have inhibited entrepreneurship and economic growth. However, research has been hampered because of a lack of systematic historical tax data. The purpose of this study is to describe the evolution of tax rules for industrial foundations in Sweden between 1862 and 2018 and to calculate the marginal effective tax rate (METR) on capital income. The results show that the METR for an equity-financed investment is typically below 20% and occasionally peaks at approximately 40%. When the requirement that industrial foundations have to donate the bulk of capital income (less capital gains) for charitable purposes is treated as a tax, the METR is seldom below 50% when financing investments with new share issues and often exceeds 100%.