The existence of a global minimum corporate tax significantly changes the international tax landscape. By addressing the “remaining BEPS challenges” in the form of “the continued risk of profit shifting to entities subject to no or very low taxation”, it certainly alters the environment in which existing anti-avoidance rules operate and which policy concerns may ultimately persist. Viewed from an “abuse” or “avoidance” perspective, therefore, GloBE raises a number of fascinating issues. This chapter aims to address some of them (while acknowledging that some have no clear solution). First, it shows that GloBE is not itself an anti-abuse measure in the classical sense, although its effects may implicitly cover concerns related to tax avoidance practices or base erosion. Second, the GloBE rules are silent on how to deal with the impact of domestic anti-abuse rules (e.g., GAARs based on Art. 6 ATAD), in particular with regard to the (re-)allocation of taxable income or covered taxes, and how to deal with potential mismatches between the GloBE rules and domestic taxation. Third, the GloBE rules do not contain a GAAR and only address some anti-avoidance concerns through special rules; it is therefore unclear whether States are free to apply their domestic anti-abuse rules within the GloBE system, or if the latter is to be considered a “closed system” that should be consistently applied by the adopting States and thus not be subject to unilateral anti-avoidance rules or doctrines. Finally, the new international tax landscape in the light of the global minimum corporate tax has already led the OECD to call on States “to review existing anti-abuse measures” and to “assess the possibility to eliminate or adapt the duplicative rules” (OECD (2022a) Tax Co-operation for the 21st Century. OECD Report for the G7 Finance Ministers and Central Bank Governors, para. 57.), and it is indeed necessary to assess in which cases such “decluttering” of existing domestic anti-avoidance rules is possible and useful.

错误:搜索内容不能为空,请输入英文关键词
错误:关键词超出字数限制,请精简
高级检索

The Impact of Pillar Two on the Notion of Abuse in International Taxation

  • Georg Kofler

摘要

The existence of a global minimum corporate tax significantly changes the international tax landscape. By addressing the “remaining BEPS challenges” in the form of “the continued risk of profit shifting to entities subject to no or very low taxation”, it certainly alters the environment in which existing anti-avoidance rules operate and which policy concerns may ultimately persist. Viewed from an “abuse” or “avoidance” perspective, therefore, GloBE raises a number of fascinating issues. This chapter aims to address some of them (while acknowledging that some have no clear solution). First, it shows that GloBE is not itself an anti-abuse measure in the classical sense, although its effects may implicitly cover concerns related to tax avoidance practices or base erosion. Second, the GloBE rules are silent on how to deal with the impact of domestic anti-abuse rules (e.g., GAARs based on Art. 6 ATAD), in particular with regard to the (re-)allocation of taxable income or covered taxes, and how to deal with potential mismatches between the GloBE rules and domestic taxation. Third, the GloBE rules do not contain a GAAR and only address some anti-avoidance concerns through special rules; it is therefore unclear whether States are free to apply their domestic anti-abuse rules within the GloBE system, or if the latter is to be considered a “closed system” that should be consistently applied by the adopting States and thus not be subject to unilateral anti-avoidance rules or doctrines. Finally, the new international tax landscape in the light of the global minimum corporate tax has already led the OECD to call on States “to review existing anti-abuse measures” and to “assess the possibility to eliminate or adapt the duplicative rules” (OECD (2022a) Tax Co-operation for the 21st Century. OECD Report for the G7 Finance Ministers and Central Bank Governors, para. 57.), and it is indeed necessary to assess in which cases such “decluttering” of existing domestic anti-avoidance rules is possible and useful.