強(qiáng)加標(biāo)準(zhǔn)：全球稅收政 治的南北維度

1、Acknowledgments viiAbbreviations ix HYPERLINK l _TOC_250003 Prologue 1The Problem with Tax Treaties 4A History of Lower-Income Countries in (and out of)Global Tax Governance 31The Competition Discourse and North-South Relations 50The International Tax Community and the Politicsof Expertise 67The Uni

2、ted Kingdom 93Zambia 115Vietnam and Cambodia 132Historical Legacies in a Rapidly Changing World 152Appendix: List of Interviews and Meetings Observed 169 HYPERLINK l _TOC_250002 Notes 173 HYPERLINK l _TOC_250001 Bibliography 209 HYPERLINK l _TOC_250000 Index 231Thanks to all at ActionAid, Tax Justic

3、e Network Africa, the International Rela- tions Department of the London School of Economics, the International Centre for Tax and Development at the Institute of Development Studies, and Cornell University Press. In particular, thanks to Hugh Ault, Leonardo Baccini, Eduardo Baistrocchi, Lucy Barnes

4、, Andr Broome, Nelly Busingye, Pamela Chisanga, Ras- mus Corlin Christensen, Alison Christians, Jeff Chwieroth, Lee Corrick, Andrew Delatolla, Michael Durst, Marian Feist, Judith Freedman, Diego Gonzalez- Bendiksen, Nadia Harrison, Roger Malcolm Haydon, May Hen, Nora Honkaniemi, Jalia Kangave, Ander

5、s Larsen, Michael Lennard, Lukas Linsi, Jan Loeprick, Rhian- non McCluskey, Lovisa Moller, Mick Moore, James Morrison, Alvin Mosioma, Savior Mwambwa, Kryticous Patrick Nshindano, Daisy Ogembo, Ronen Palan, Sol Picciotto, Lauge Poulsen, Wilson Prichard, Daniel Schade, Roberto Schatan, Len Seabrooke,

6、Heather Self, Deeksha Sharma, Jason Sharman, David Spencer, Todd Tucker, John Vella, Heidi Wang-Kaeding, Duncan Wigan, Steve Woolcock, Joanne Yao, Matti Ylonen, and all those who participated in research interviews.Thanks to Rachel for putting up with all the traveling without much complaint. Of cou

7、rse, she didnt have to wait for a telegram to find out when I would be home. Tax paid for this research. It was made possible by funding from the Economic and Social Research Council and UK Aid, as well as from the Bill and MelindaGates Foundation.viiATAFAfrican Tax Administration Forum ASEANAssocia

8、tion of Southeast Asian Nations BEPSbase erosion and profit shiftingBITbilateral investment treaty CANCommunity of Andean NationsCBIConfederation of British Industry CFACommittee on Fiscal AffairsCOMESACommon Market of Eastern and Southern Africa CPPCambodian Peoples PartyCTPACentre for Tax Policy a

9、nd Administration DTAdouble taxation agreement (“tax treaty”) DTIDepartment of Trade and IndustryDTTdouble taxation treaty (“tax treaty”) EACEast African CommunityECOSOCEconomic and Social Council (of the UN) EECEuropean Economic CommunityFCOForeign and Commonwealth Office FDIforeign direct investme

10、ntFTAfree trade agreementGATTgeneral agreement on tariffs and trade GDPgross domestic productGDTGeneral Department of TaxationICCInternational Chambers of Commerce IMFInternational Monetary FundMFAMinistry of Foreign AffairsMMDMovement for Multi-party Democracy NGOnongovernmental organizationOEECOrg

11、anisation for European Economic Co-operationOECDOrganisation for Economic Co-operation and Development PEpermanent establishmentRTZRio Tinto ZincSADCSouthern African Development Community TIEAtax information exchange agreementTJNATax Justice Network AfricaixIMPOSING STANDARDSPROLOGUEThe research for

12、 this book took an unexpectedly personal turn as I arranged fieldwork in Africa. A Kenyan organization, Tax Justice Network Africa (TJNA), had agreed to cover my travel costs through a consultancy fee. Kenya imposes a 20 percent tax on service fees paid to providers based abroad, but I was glad to l

13、earn that I would have to pay only 12.5 percent, thanks to a four-decades-old treaty between Kenya and the United Kingdom (UK). This saved me (and cost Kenya) a few hundred pounds. In total, British multinational companies have invested over a billion dollars in Kenya, earning over $100 million per

14、year from this investment.1 When they bring those earnings back home, they also benefit from reduced tax rates thanks to the Kenya-UK treaty.As I emailed the digitally signed contract back to Nairobi, I realized that the treaty in question had been concluded in a building just opposite my office at

15、the London School of Economics. Somerset House was the headquarters of the Inland Revenue for much of the nineteenth and twentieth centuries. As with all tax treaties, the design of the Kenya-UK treaty can be traced back to a model convention negotiated among the major powers when Kenya was still un

16、der British colonial rule. The “London Draft” of 1946, as it is universally known, was also concluded at Somerset House. It seems fitting that this grandiose building had previously been the headquarters of the Navy Board, the administration of Britains maritime force at the peak of its empire.Throu

17、ghout the twentieth century, Inland Revenue officials at Somerset House worked to create a set of postcolonial power structures that would cement British capitals enduring ability to profit from the former empire and further afield. A12PROLOGUEglobal network of over three thousand bilateral treaties

18、 shields multinational companies from millions of dollars of tax payments on their foreign activities. They are all descendants of the London Draft, produced by the League of Nations Fiscal Committee. Britain exerted a strong influence on the committee, in recognition of what one committee member ca

19、lled its status as a “great economy.”2 It now has more bilateral tax treaties than any other country, and many of those in force today were negotiated in that very same building.Historical records show that the particular clause from which I benefited nearly ended the negotiations. In January 1972,

20、a British negotiator in Nairobi sent a telegram to his colleagues back at Somerset House. “Talks with Kenya have broken down,” he wrote, “over treatment of management fees and royalties. The Keanyans sic have pressed me to obtain confirmation from the Board that the UK cannot agree to a 20% withhold

21、ing tax.”3 Kenya wanted to replace a treaty inherited at independence with one that would give it more rights, including the right to impose a 20 percent tax on gross fees paid by Kenyan companies to British man- agers and consultants. It would be a withholding tax, deducted by the payer in the same

22、 way that personal income tax is usually deducted from an employees salary. The UK had never agreed to this before, taking the view that such payments should be taxable only in the UK.Kenya was focused and determined, choosing to terminate the old colonial agreement in order to put pressure on the U

23、K to relent on its point of principle. A meeting with business representatives in Somerset House in March 1972 ap- pears to have been instrumental in the British climbdown, with the minutes re- cording how “the general feeling of the meeting was that it was necessary to hold out for a low rate on ro

24、yalties, but that management fees could be treated differently.”4 Kenyan and British officials eventually initialed a treaty permitting Kenya to tax management and consultancy fees paid to the UK, but only at rates up to 12.5 percent.5 For over forty years, this would be the lowest cap that Kenya ha

25、d agreed to in any treaty.The British did not give up without a fight and in a tense exchange during the Nairobi talks, a Kenyan negotiator asserted that “the UK wanted to make UK management cheaper in the Kenyan market than Swedish management.”6 Sweden, along with Norway and Denmark, had already ag

26、reed to the 20 percent rate, which meant that Scandinavian firms would have needed to charge 20 percent more than their British counterparts for the same post-tax return had the UK got the zero rate that it sought.The final sentence of the January 1972 telegram illustrates how times have changed bet

27、ween the negotiation of the treaty and its impact on my own tax liability. “I would be grateful if you could get a message to my wife that I will prob- ably not be home until Wednesday,” wrote the British negotiator, giving a homePROLOGUE 3telephone number.7 In contrast, thanks to the excellent mobi

28、le internet coverage across Africa and Asia today, my wife had no such uncertainty to endure. It seems unlikely that either side in 1972 could have been thinking of a world dominated by email, WhatsApp, Zoom, and Skype.Today, as trade in services becomes a larger share of the global economy, lower-

29、income countries8 right to tax service fees paid to providers overseas is one of the biggest North-South flashpoints in global tax politics. The UK, for example, has changed its mind again. The service fees clause became a routine concession for decades after Kenya broke the mold, but since the turn

30、 of the twentieth century it has become a red line in negotiations. During interviews for this book I heard of at least three UK negotiations in which this had led to a stalemate.The UK is on one side of a global conflict. In 2013, after years of protracted discussions and several knife-edge votes,

31、a United Nations (UN) committee voted to amend its model bilateral treaty to introduce a clause permitting withholding taxes on technical service fees like that in the Kenya-UK treaty. The UN model is supposed to articulate a suitable compromise for negotiations between lower- income and higher-inco

32、me countries, and the more influential equivalent pub- lished by the Organisation for Economic Co-operation and Development (OECD) continues to outlaw withholding taxes on service fees. In practice, lower-income countries have rarely obtained anything like the new UN clause in their bilateral tax tr

33、eaties, even though most levy such taxes in their domestic laws.Just as neither TJNA nor I considered the UK-Kenya tax treaty until after we had decided to work together, evidence suggests that tax treaties may only rarely influence multinational companies investment decisions. If that is the case,

34、lower- income countries have little to show for the revenue sacrifices they must make to obtain them. Some have started to reconsider individual tax treaties or even their whole networks, and organizations as diverse as African civil society groups and the International Monetary Fund (IMF) have adop

35、ted a critical stance. From 2012 to 2020, Mongolia, Argentina, Rwanda, Senegal, Malawi, and Zambia have repudiated a total of 11 tax treaties, apparently due to fears that they were open to abuse or overly generous. Back in Nairobi, the fieldwork I had conducted with TJNA supported its legal challen

36、ge to Kenyas treaty with Mauritius, which culminated in 2019 when the treaty was struck down by the High Court.The rate at which lower-income countries are signing new tax treaties, how- ever, shows no sign of declining. Kenya, for example, has already negotiated a new agreement with Mauritius. This

37、 book is an attempt to understand the in- consistency between fifty years of negotiations that have resulted in thousands of tax treaties binding lower-income countries into an international regime, on the one hand, and the evidence that this regime may cost them more than they gain, on the other.1T

38、HE PROBLEM WITH TAX TREATIESAfrican countries have been brainwashed into thinking that they need tax treaties. But they dont.Tax treaty negotiator, African countryStories of tax-dodging corporate giants make headlines on a weekly basis. None- theless, governments manage to collect over US$2 trillion

39、 in corporate income tax each year, much of it from big multinational businesses.1 This book is about the rules governments have negotiated to divide the tax base among themselves: how they are designed to work, rather than how they are circumvented by un- scrupulous companies and individuals.2 As a

40、 long tradition of legal scholarship argues, those rules, written by a club of higher-income countries, deny lower- income countries a fair share.3 Tax is hardly unique in this regard, and the past two decades have seen backlashes against institutions of global economic gover- nance that exhibit suc

41、h a bias, including the IMF, the World Trade Organization (WTO), and the network of bilateral investment treaties (BITs).4 There are now some signs of organized discontent in the international tax regime, but its long- standing resilience, while other lopsided regimes have faltered, makes it an inte

42、r- esting case in the broader story of global economic governance.The key mechanism depriving lower-income countries of tax revenues is some- thing they have signed up forand in which they continue to participateentirely voluntarily: a network of bilateral treaties, and the international standards t

43、hat those treaties encode into hard law. Tax treaties cover 82 percent of the worlds foreign direct investment (FDI) stocks, including 81 percent of the FDI in lower- income countries.5 They set limits on when, and in some cases at what rate, signatories can tax cross-border economic activity, prima

44、rily imposing restrictions on the host countries of FDI. Many legal scholars are skeptical of the benefits. According to Tsilly Dagan, the main effect of these tax treaties is “regressive4redistributionto the benefit of the developed countries at the expense of the developing ones.”6 Kim Brooks and

45、Richard Krever agree that “the success of the high-income states in negotiating ever more treaties has come at the expense of the tax revenue bases of low-income countries.”7 If this is the case, why have lower- income countries been willing to sign more than a thousand of these treaties?The vast ma

46、jority of literaturepolicy and academicsees tax treaties as in- struments through which lower-income countries compete for inward investment. A cross-country study of the reasons countries sign tax treaties, conducted by Fabian Barthel and Eric Neumayer in 2012, found that countries were more likely

47、 to sign up when their competitors for foreign investment had already done so.8 This conclusion appears to be borne out in policy discourse too. For example, investment promotion literature from countries including Kenya and Zimba- bwe highlights tax treaties as important factors that should attract

48、 investors.9 In budget speeches introducing tax treaties to Ugandas parliament, successive finance ministers have explained that their purpose was “to protect taxpayers against double taxation, and to ensure that the tax system does not discourage direct foreign investment” and “to reduce tax impedi

49、ments to cross border trade and investment.”10 A study conducted by the Ministry of Finance of Peru states that “these conventions create a favourable environment for investment. In signing a double taxation convention, a country is sending a positive signal to foreign investment and offering invest

50、ors security with respect to the elements negotiated.”11There are a number of problems with this: there is little evidence that tax treaties have a positive impact on investment in lower-income countries; I found conflicting views among those involved in the treaty-making process in lower- income co

51、untries as to the purpose of tax treaties, with many of those who nego- tiate treaties skeptical that they attract investment; capital-exporting countries are frequently the ones initiating and driving negotiations, not lower-income countries; and the tax competition literature does not tell us why

52、lower-income countries typically give away far more in negotiations than they need to in order to secure an agreement.To the extent that tax competition is a fact, then, it is a social fact. What matters is how it is understood by different actors. In this book, I characterize two compet- ing narrat

53、ives among those involved in making tax treaties. A tax competition motivation, based on the unsubstantiated claim that treaties will attract invest- ment, is shared among those who are less familiar with the technical details. This includes politicians, nonspecialist civil servants, and business ex

54、ecutives who lobby them. Treaties are seen as a trade-off between investment promotion and revenue raising, although the fiscal costs, which are hard to estimate, are not al- ways given much weight in the assessment.The narrative among tax treaty specialists, both in government and in busi- ness, is

55、 different. Often socialized into a transnational policy community, their detailed technical knowledge comes as part of a package, developed and refined among experts from OECD countries. A powerful logic of appropriateness per- vades this community: the OECDs model tax treaty is the acceptable way

56、to tax multinational companies. Its bias against lower-income countries was never agreed to by those countries at a political level; instead, it is justified in technical terms as more economically efficient. Proponents of this view accept that com- panies investment decisions may well be influenced

57、 by the presence or absence of a particular treaty, and a country with a wide treaty network may be expected to have more cross-border investment. The main mechanism through which this should occur, they suggest, is the convergence on OECD standards set out in the treaty, not the creation of tax-rat

58、e-based distortions. Tax professionals in advisory firms and multinational companies share with civil servants the objective of disseminating OECD standards. If they want to be part of this expert community, there is little room for those from lower-income countries to challenge such a long-standing

59、 consensus, even where it exhibits a strong bias against them.For half a century, higher-income countries have taken advantage of these two narratives, together with capacity constraints and imperfect rationality in lower- income countries, to negotiate hundreds of treaties that constrain the taxing

60、 rights of lower-income countries unnecessarily. All along, but rarely acknowledged, the higher-income countries have been in competition with each other to give their multinational investors a competitive edge by securing the most advantageous tax treaties. Yet the tax costs of this competition end