INTERNATIONAL TAX PRINCIPLES IN BRICS AND OECD COUNTRIES: DIVERGENCES AND CONVERGENCES
“DAVID R. TILLINGHAST RESEARCH PROGRAM” IFA – IBDT – EMAG – FDUSP
TAXPAYERS’ PROTECTION AND INTERNATIONAL FISCAL COOPERATION
CRISTIAN BILLARDI
Universidad de Buenos AiresAssociazione Italiana per il Diritto Tributario Latino Americano – AAEF
STUDIO UCKMAR ([email protected])
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TAX HAVENS
Tax Havens?M. Udina described “international fiscal cooperation”, as ranging from exchange of tax relevant information to assistance in tax collection on behalf of the tax authorities involved.
in Favour:
• Promote Freedom an
Privacy
• Promote good fiscal policy
• Providing tax competition
• Reduce tax rates
• Banks offer lower rates
• Etc.
Against:
• Promote money laundering
• Governments cannot meet
public servicies
• Help create sub-prime
crisis
• Encourage inequality
• Etc.
What has changed?
Recover 5% of the
fiscal credits in
existence outside
the EU
5%
Tax Evasion EU
2, 5 GDP
200MM – 300MM
2 , 5 %
Tax Havens?
Black List “HTC -1998”
47
Black List “CFP – 2000”
4
Black List “BEPS -2013”?
?
REGULATORY FRAMEWORK
Regulatory FrameworkInstruments:
Bilateral Agreements:DTC (art. 26 MC-OECD / ONU – art. 17 ILADT)Information Exchange Agreements: which can bein accordance with treaty creation procedures (Vienna Convention), or agreement between tax authorities (soft-law)
Multilateral Agreements: Multilateral Agreement on Mutual Administrative Assistance in Tax Matters - OECD (including Argentina and Brazil)
Extraterritorial regulations:FATCA (USA)
Other:OECD Recommendation “HTC -1998” – “BEPS -2013”
Do all these instruments have the same legal status?
IEA – Mercosur
PROTOCOLO DE ASSISTÊNCIA JURÍDICA MÚTUA EM ASSUNTOS
PENAIS (X CMC, São Luis, 25/VI/96)
Denegação de Assistência
Artigo 5
“O Estado Parte requerido poderá denegar a assistência quando:
c) a solicitação se refira a delito tributário”
Is it possible to reconcile the EIA - with the art. 5 of the San Luis Protocol?
REGULATORY FRAMEWORK
Rights of Taxpayers
Level of protection (domestic regims)
• Ad-hoc procedure – Judicial intervention (e.g. Uruguay)
• “Rights of participation” : first “Advise taxpayers”: what type of redress?
• Non prior notification (e.g. Argentina)
Rights of Taxpayers
“fiscal transparency, begins with the existence of a clear and predictable fiscal system”
IEA - PSL
1. PSL vs AEI: PSL: must prevail as IA of a higher order
IEA: must prevail by applying ppl of specialization and competence
2. PSL and IEAPple: “right of refusal”
IEA after PSL (e.g. Argentina – Uruguay /2012) must prevail IEA
IEA befor PSL (E.g. CDI Brasil – Argentina /1982 ) ?
Tax discrimination within Mercosur? (art. 7 Tratado Asunción)
The rights of taxpayers (C. Pita)• To be informed, about the scope of control and investigative
proceedings when they are started, and of their rights and obligations in connection with said procedures.
• To know the identity of the officials taking part in the proceedings.
• To know the progress made in those proceedings.
• To privacy of the data and information given to and obtained by the tax Authority.
• For the tax authority to minimise the burden of actions for which the taxpayer is responsible.
• Strict adherence to obligations arising from due process in the development of the proceedings.
