International Tax Disputes: Between Supranational Administration and Adjudication
This paper contributes to the important debate on how to improve the resolution of international tax disputes. It starts by outlining the context and development of international tax dispute resolution, then it analyzes its nature in a comparative context, and conclude with some suggestions for both the current policy debates and the future. Proposals resulting from the G20 and the Organization for Economic Cooperation and Development (OECD) project on Base Erosion and Profit Shifting (BEPS) include a drive for mandatory binding arbitration of international tax disputes, strongly supported by business. This issue should be considered in the context of the reasons for and nature of international tax disputes. The bulk of such conflicts concern ‘economic’ double taxation, resulting from divergent interpretations by different tax authorities of the standards for attributing profits to affiliates within a corporate group, so that the firm as a whole may be taxed on more than 100 per cent of its worldwide profit. Such divergences result from transfer pricing rules that treat the affiliates within a TNC group as if they were an independent entity dealing ‘at arm’s length’ with each other, and requiring subjective judgements by each tax authority on the profits attributable to each.