Fiscal unilateralism or multilateralism for the taxation of the Digital Economy?

One topic we will certainly discuss, in the coming years, is the robotization and its effects. On the one hand, there are already studies on the impact that such robotization will have on employment and the figures are highly troubling. But beyond these data, even the less alarmist studies of the future of employment recognize that at least for a few years-those that allow the transition to new jobs-we will have to adapt to a very different panorama, which financially will have a considerable impact on countries.

As it is known, robotization and the consequent destruction of jobs will imply important collection losses, as well as new expenses to be faced. On the one hand, it is worth mentioning the revenue loss in income tax and, as derivative, in the Social Security contributions and, on the other, more expenses to cope with unemployment.

In this situation the alternatives have begun to arise. Bill Gates has given great visibility to this debate by stating that if robots are going to “steal” the job, these robots should pay taxes. But it is not an eccentricity, the debate has been raised in the political arena. In his proposal for a report by the European Parliament- of which Mady Delvaux was rapporteur- in May 2016, it was proposed to submit to a tax the work carried out by the robots or to request a levy for the use and maintenance of each robot. In the final report, however, this option, as well as the introduction of a basic income, were rejected.

However, all these options end up resting on the same question, how can we protect the collection and the welfare state in the face of this new panorama? In this way, beyond original formulas such as taxing robots, we consider whether the appropriate answer would be that companies and enterprises – owners of such robots-should make such a tax effort, increasing their contribution to sustaining the public expenditures. Above all, if we consider that the corporate tax is a tax in crisis, as it appears clearly in developed countries, if we look at the evolution of this tax on GDP.

In this sense, the configuration of the corporate tax has become a key topic. On the one hand, the effort that has been carried out in the context of the BEPS project of OECD and the G20, and thanks to its inclusive scope it now brings together more than 100 countries. It supposes to continue relying on the traditional criteria on which the distribution of the tax sovereignty is based:   criterion of residence and, to a lesser extent, source criterion based on the concept of Permanent Establishment- corrected to avoid its artificial circumvention after the conclusions reached in the action 7 of the project. BEPS has focused on maintaining these international taxation principles by repairing the imbalances that globalization and the development of the digital economy have caused. But doubts remain as to whether this path is sufficient and will put an end to the scarce potential for tax revenue or its vulnerability to the aggressive tax planning of companies that operate at global and digital levels.

In fact the question is: is the current international taxation system – even after the BEPS “reparation” -allows adequately taxing the new business models of the Digital Economy? In response we must bear in mind that in 2017, 9 of the 20 largest companies by market capitalization are technological companies and represent 54% of the total stock market capitalization of those 20 largest companies (list of the 100 largest companies in the world by Market capitalization, PWC, 2017).

Along with BEPS, the idea of taxation at the source is becoming more and more important as a main criterion for subjection to taxation. It is enough to cite the American reform and its tax on the cash flow in destination. But also in the context of the project BEPS, in the field of the Digital Economy- Action 1- the option has been analyzed of taxing the income obtained by a non-resident company that lacks physical presence in the source country. There are three alternatives: the configuration of a digital EP based on the significant economic presence, a withholding on outgoing digital transactions, and implementing a levy taxing these operations, known as Equalization Levy. The enormous difficulty of consensus in this area has postponed the solution to the year 2020, – so this multilateral route has failed at the moment.

For its part, the EU also wants to lead this debate and in recent months we are experiencing a real revolution. The Estonian Presidency has considered this as priority issue and Austria, which will hold the presidency in the second half of 2018, has already announced that it will support on the concept of EP virtual. On the one hand, France, Germany, Italy and Spain propose the introduction of a sales tax for technological enterprises with economic activity in the EU, and six other countries have shown their support at the informal ECOFIN meeting in September 2017. This compensatory tax on turnover would be required from digital companies either in the field of corporate tax or as an independent tax. Together with this, the proposal to harmonize the tax on companies in Europe (CCCTP, Common Consolidate Corporate Tax Base) does not achieve unanimity because the opposition of States clearly losers with this project prevents it.

In the meantime, States act unilaterally. Thus, only within the EU we can mention the United Kingdom and its Diverted Profit Tax, Germany and its Netflix Tax, France and its proposal for a Youtube Tax or Italy that has already announced a withholding on digital transactions and a modification of the nexus required for taxation at the source.

However, at least in the European context it worries that these unilateral solutions can fragment the internal market, creating new possibilities of abuse and aggressive planning and increasing uncertainty and litigation. However, in the face of these drawbacks, experience is proving that multilateralism, although it is the desirable option, is almost impossible, while unilateral measures drive the process and can be the basis for advancing and improving.

For all of this, we should perhaps be betting on enhanced cooperation for the Common Consolidate Corporate Tax Base and for the future regulation of the taxation of the digital economy, accepting at the moment a two-speed Europe, achieving the consolidation of all these changes and increasing the number of countries that adhere, which certainly avoids discoordination, unfair tax competition and double taxation.

In short, what seems clear is that in the coming years we will witness a major change in the bases on which the tax systems have relied upon in the last century, and we will go towards a direct taxation based on a destination levy, and the taxation on the corporate profits will take more account of the market demand than the residence of the companies. If the answer cannot be global and multilateral, let us go there separately and obtain at least the broadest possible consensus among the states.

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