Infusing Development into International Fiscal Law Law and Development Institute Conference, (2014). Ajay Kumar.

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Presentation transcript:

Infusing Development into International Fiscal Law Law and Development Institute Conference, (2014). Ajay Kumar

What is Int‘l Fiscal Law (IFL)? IFL Part of International Law What does it include & do?

Includes national & international conflict rules. Rules which demarcate fiscal jurisdictions (Double Taxation Agreements: DTAs‘) It provides benefits. Substantive rules (national) that regulate Int'l fiscal facts (Income Tax Act: UK).

Why call it International? Subject matter – demarcate conflicting jurisdictions. Source – rules which qualify as Public Int‘l Law. Consensus: all rules that regulate Int‘l Fiscal facts. ‘Agreement‘ – only about domestic fiscal facts which should be excluded.

Why Stagnation? No agreement: Int‘l facts that are regulated. Economic Integration increasing. Rich man‘s club – Organisation for Economic Cooperation & Development (OECD). All these included in Model Tax Conventions.

DTAs‘ Main ‘purpose‘ – Prevent Double Taxation. Conflict rules about jurisdiction. Other substantive rules/ standards. Largely bilateral; some regional.

Law and Development (L&D) Using law as an instrument to achieve development. Imposed law from outside – by donors. Did not take into consideration local cultural facts.

Failed She was expected to deliver blindfolded

IFL & L&D/Development - where do they meet? International Monetary Law – IMF & WB. Interventions/conditionalities in the Fiscal Policy. Failed to - generate revenues, bring growth & development. But development agenda - purpose driven.

What can L&D & IFL learn from each other? Money/revenues important for economic growth; and development brings revenues. Rampant tax evasion, Tax competition & Fewer tax heads. Aid/loans - decreasing; being diverted; projects externally decided - No accountability. Talk of equitable growth everywhere.

How can it be Done? Proposal Can L& D do it? No. Borrow from International Development Law: rights and duties of states & others in the Development process. Redistribution; Special & Differential Treatment (S&DT). Can S&DT in IFL offer revenues, accountability & equity? Yes - Where?

Infusing Development into IFL: Where? Current tax division: based (Source / Residence). The priority for ‘residence‘ to be changed. Equitable division - would supplement efficiency. Change the objectives of DTAs‘.

Vodafone Case (2012) Vodafone (Neth.) Hutchison Int‘l Ltd. (CI ) CGP Investments (CI) Intermediate (Mauritius) Hutch Essar (India ) Total value: $11.5 Billion Tax Payable: $2.5 Billion (DTA)

Applicable Law Substantive provisions of Income Tax Act (India). Indian Law – No see through provisions (substance over form). No Limitation of Benefits (LoB) provisions in the India – Mauritius DTA. Result: $ 2.5 Billion evaded.

What can be done? If the objective of DTAs’ changed; it can help courts to interpret or decide cases. Developing countries are to be accorded ‘differential‘ treatment. Developing countries‘ could take lead.