The Spirit of International Tax Law: From Fiscal Virtue to Mission-oriented Moon-shot

Publikation: Bog/antologi/afhandling/rapportPh.d.-afhandling


The premise of this study is that there is a fundamental Babylonian confusion surrounding the concept of the spirit of international tax law. In addition, the study supposes that a better understanding of the spirit of international tax law is important to design an international tax system that is fair and just, that is robust enough to keep up better with the rapidly changing world economy while it also can deal with competing claims of jurisdictions for a fair share of the tax base.
However, there is a lack of comprehensive research regarding the concept of the spirit of international tax law. While most appear to assume that the spirit should be equated with the intention of the legislator or purpose of the law, there are many examples where
(corporate) taxpayers act within object and purpose of positive law but where the end result still does not sync up with shared expectations in society of what is fair.
This study aims to define the spirit of international tax law, as well as to propose how the spirit of international tax law can contribute to making the international corporate tax system more robust. To achieve this, the study takes a multidisciplinary approach. It analyses the relation of morality to the concept of law as it has been debated in legal philosophy, and it considers from several perspectives how morality might affect the interpretation of legal rules. Furthermore, it reflects on how the work of the OECD/G20 Inclusive Framework and the development of political morality regarding international tax law relate to each other. Lastly, a discourse analysis substantiates the abovementioned considerations. This discourse analysis consists of (i) an analysis of official publications by the OECD and EU, (ii) a media analysis of several European newspapers, and (iii) an analysis of Google Trends data.
This study demonstrates that the concept of the spirit of international tax law takes on three distinct meanings in the public debate: (i) the intention of the legislator or purpose of the law, (ii) the changed political morality that has not yet crystalised in positive law, and (iii) personal moral preferences. These findings can serve to increase awareness regarding the types of arguments used in the public debate, as well as help to assign a certain objective weight to these arguments.
The study concludes that, the spirit of international tax law is best considered as the boundary between law and non-law. This is where new (ideological) legal principles are being formed concurrent to how political and doctrinal morality is changing, while, at that precise moment in time, these budding legal principles do not quite have enough institutional support to be considered legally enforceable yet.
Moreover, the study suggests that economic efficiency and tax revenue effects are currently the dominant policy concerns regarding changes in international tax standards, while concerns about fairness are routinely placed in the background. This underlying hierarchy of policy concerns is pervasive in international tax standards designed by the OECD. It is contended that this underlying hierarchy in policy concerns effectively blocks fundamental tax reform. Subsequently, it is concluded that a repurposing of the spirit of international tax law that transforms it from an implicit and abstract notion of fairness and fiscal virtuous behaviour to a driver of explicit, concrete, and ambitious policy goals of the international tax system, could lift such a blockade.
ForlagUniversiteit van Amsterdam
Antal sider385
ISBN (Elektronisk)9789463618557
StatusUdgivet - 2023
Udgivet eksterntJa