Listed below are forthcoming events either hosted by the School of Accounting and Commercial Law (SACL) or the Centre for Accounting, Governance and Taxation Research (CAGTR) or the Chair in Public Finance.
The lesser of two evils: Double tax treaty override or treaty abuse? - Professor Craig Elliffe (University of Auckland)
Date: 13 November 2015
Time: 11.00 am
On a coordinated basis the OECD and G20 are focusing on a far-reaching action plan to combat base erosion and profit shifting (BEPS). Their plans are designed to prevent treaty abuse, foil hybrid mismatches, prevent unusual and aggressive transfer pricing, and encourage much more timely and comprehensive information sharing. This group are also continuing to work on the broader tax challenges of the digital economy considering issues of nexus, data, and characterisation with a view to designing a fair and viable system designed to tax profits in the jurisdiction where economic activities occur and where value is created. There is great uncertainty about what income arises from the digital economy and also how it could be assessed and paid.
How should a government respond when it believes that a multinational (such as Google) operating in its country uses the substantive provisions of a double tax agreement to pay virtually no tax in its jurisdiction? While the world awaits an integrated solution, a second level of governmental response to BEPS is emerging and involves purely domestic taxation legislation introduced on a unilateral basis. This is not coordinated and it is controversial because, arguably, it is designed in some circumstances to override existing treaty obligations. The 1989 OECD Report on treaty override categorised various situations of treaty override as acceptable and unacceptable behaviour for governments. In that Report the OECD discussed a case of treaty abuse involving the alienation of immovable property. They concluded that even though the new overriding legislation was designed to put an end to an improper use of the tax treaty it was an impermissible contravention of a tax treaty obligation. This paper argues that in such circumstances, now, a domestic law treaty override is both a justified and acceptable course of action. This view is based upon three key arguments. The first is that the purpose of tax treaties has changed from when the Report was written so that it is now clear that it is a main purpose of the treaty to prevent tax avoidance and evasion. Secondly, domestic law already overrides treaties in situations of abuse. It has emerged since 1989 that domestic general anti-avoidance rules influence and affect double tax agreements in the vast majority of countries. Thirdly, as a matter of international law it can be argued that a taxpayer should not be able to take advantage of a treaty in an abusive way in which their own state could not. The state is required to apply the treaty in good faith and so should the taxpayer. Seen in this light recent developments made by the United Kingdom and Australia involving new tax rules appear reasonable rather than unreasonable even if the developments are examples of unilateral legislative treaty override (which the UK and Australia would contest). The approach in these jurisdictions, being grounded in preventing abusive structure and transactions, is consistent with the purpose of double tax treaties.
VUW Auckland - CAGTR Business Links Panel Discussion on Integrated Reporting
Date: 10 December 2015
Time: 5.30 pm
Venue: VUW Auckland, Level 4, 50 Kitchener Street, Auckland
Users say corporate reporting is no longer fit for purpose – hence the call to New Zealand business for Integrated Reporting. The panellists at this session will outline the benefits, progress to date (both domestic and international) and also propose some future actions for decision makers that might make Integrated Reporting more “top of mind”.
A copy of the flyer is available here.
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