Tax jurisdiction over residents is a kind of tax principle that is based on the legal facts in the income tax laws of various countries on the basis of the existence of residents or national affiliation between taxpayers and taxable countries. The international principle of tax coordination based on the principle of jurisdiction to tax residents is that one contracting state can exercise jurisdiction to tax residents over a variety of transnational income, and that the other contracting state can tax income derived from its territory according to the condition, scope and degree of a tax treaty. The contracting state of residents bears the treaty obligation to provide duty-free or foreign tax credit relief in order to eliminate international duplication of taxation on transnational income. The coordination mode of international tax above is based on the traditional theory of tax equity, the tax neutrality principle and the benefit burden theory. However, with the development of economic globalization and the emergence of the digital economy, the current coordination mode of international tax based on the traditional theory of tax and the jurisdiction to tax residents are faced with many challenges. First, the traditional connection factor of tax jurisdiction cannot reflect the more frequent and closer economic ties between taxpayers and tax collectors in the new economic environment. Second, as the economic globalization is deepening and the international tax competition is becoming increasingly fierce, the jurisdiction to tax residents is not necessarily in line with the principle of the ability-to-pay of taxation. Third, the coordination mode of international tax based on the general application of tax jurisdiction over residents will aggravate the incentives for taxpayers to avoid tax obligations of a state and abuse the preferential treatment of tax treaties by changing or choosing the identity of residents. In response to these challenges, in the practice of the income tax law and the bilateral tax treaties of the countries concerned, there are some noticeable reform trends in the rules of the residents’ tax jurisdiction. One is about the identification of resident taxpayers. More and more tax authorities pay a lot of attention to the factors that have economic real links, and the case negotiation between competent authorities of contracting parties. Another is about the preferential treatment of bilateral tax treaties. Some tax authorities impose conditional restrictions on taxpayers who have the status of a resident of a Contracting State. Last but not least, more and more countries introduce the Principal Purpose Test provisions with general anti-tax avoidance rules in the bilateral tax treaties to regulate the tax avoidance arrangements which can be used to take advantage of the preferential treatment of the tax agreement. Therefore, we should continue to promote the reform of tax jurisdiction over residents in the post BEPS. First, developing countries should strive to improve the discourse power on the reform of international tax jurisdiction, put forward new theories and reasonable and feasible plans for the reform of international tax jurisdiction. Second, the principle of value creation should be the basis for the reform of tax jurisdiction under the digital economy. Although the coordination mode of international tax based on tax jurisdiction over residents is faced with many challenges, it does not mean that tax jurisdiction over residents in the income tax law of various countries should stop. The coordination mode of international tax in the future will be further assimilated. The purpose of the coordination mode includes both double taxation and double non taxation. The content of the coordination mode includes both the allocation of tax rights and the mutual assistance of tax collection and management procedures.
The Problem and Reform of Tax Jurisdiction over Residents in the Post BEPS Era
Journal of Shanghai University of Finance and Economics Vol. 20, Issue 04, pp. 129 - 140 (2018) DOI:10.16538/j.cnki.jsufe.2018.04.009
Cite this article
Wang Lihua, Liao Yixin. The Problem and Reform of Tax Jurisdiction over Residents in the Post BEPS Era[J]. Journal of Shanghai University of Finance and Economics, 2018, 20(4): 129-140.
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