United Nations Enters Fray: Winds of Change in International Tax System

A significant event took place at the altar of the United Nations (UN) which has the potential to reshape the rules governing international tax which have virtually remained static for almost a century. The UN has adopted a resolution which may culminate into a multilateral treaty, a “framework convention on international tax cooperation”, which in itself may result into further multiple multilateral treaties addressing the subject of international taxation. There have been fierce emotive responses to the adoption of this resolution. This post is a commentary to the events so far and the importance of this resolution.

A. Background: International treaty network

The bulk of rules contained in international tax system today are contained in bilateral tax treaties executed between various countries largely to address double taxation and promote economic relations. These treaties are broadly based upon the rules which came into vogue during the two world wars. An improvisation of these rules has been consistently worked upon by the OECD, with its incumbent framework contained in the “2017 Model Tax Convention on Income and on Capital”¹ (OECD Model). The rules contained in the OECD Model, however, have been perceived as largely favouring capital exporting countries with a need being felt to have customised rules to address the concerns of the developing countries. These set of alternate rules, though largely replicating the OECD Model, are contained in the “United Nations Model Double Taxation Convention between Developed and Developing Countries”.²

B. BEPS reforms

A decade back a long-term reform process was initiated by the OECD, along with G20, under the “inclusive framework” (IF) on “base erosion and profit shifting” (BEPS) with more than 100 countries agreeing to participate in discussions and implementing the outcomes. The BEPS framework has resulted into various tangible outcomes. A fifteen-point action framework has been developed under BEPS.³ These action points have further culminated into three major international initiatives — Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS (MLI), Pillar One and Pillar Two.

(a) The MLI has already come into effect in 2018 wherein, to date, 102 jurisdictions have joined the MLI, out of which 85 jurisdictions have ratified, accepted, or approved the MLI, and it covers around 1900 bilateral tax treaties.⁴ It modifies these treaties to reduce the scope for tax avoidance therein. However, Pillar One and Pillar Two are yet to be implemented.

(b) Pillar One builds upon Action 1 of BEPS, which deals with tax challenges arising from digitalisation. In brief, Pillar One deals with taxation of income earned by non-resident digital service providers. As the OECD describes it, “[a]t the centre of the debate is whether international income tax rules, developed in a ‘brick-and-mortar’ economic environment more than a century ago, remain fit for purpose in the modern global economy … three important phenomena facilitated by digitalisation — scale without mass, reliance on intangible assets, and the centrality of data — pose serious challenges to elements of the foundations of the global tax system … Given the nature of these challenges and the difficulty to put borders around the digitalised economy, the approach at this critical juncture is clear: a comprehensive consensus-based solution that deals with both the allocation of taxing rights and the remaining BEPS issues. This would secure and sustain the international income tax system and increase tax equity amongst traditional and digital businesses.”⁵

(c) Pillar Two is a much larger reform and seeks to introduce a new international tax regime for multinational enterprises (MNEs). Instituting complex set of new rules, which are essentially formula based, Pillar Two seeks to ensure that MNEs suffer a minimal tax globally. According to the OECD, “[t]he global minimum tax under Pillar Two establishes a floor on corporate tax competition which will ensure an MNE is subject to tax in each jurisdiction at a 15% effective minimum tax rate regardless of where it operates, thereby ensuring a level playing field.”⁶

C. UN initiatives

Even though more than 100 countries are participating in the OECD IF, the fact that the discussions have conclusions have been led by OECD and the manner in which the deliberations have been carried out — rather swiftly, with the implementation date set as early as 2024 — an impression has been carried out by certain countries doubting the suitability of the IF solution for their national priorities.

Taking note of these realities, two major decisions were taken by the United Nations General Assembly in December 2022.

(a) First, the UNGA adopted a resolution on the subject “Promotion of international cooperation to combat illicit financial flows and strengthen good practices on assets return to foster sustainable development.”⁷ This resolution inter alia reiterated “its deep concern about the impact of illicit financial flows, in particular those caused by tax evasion, corruption and transnational organised crime …” and despite “noting” the work of OECD IF, inter alia stressed “that efforts in international tax cooperation should be universal in approach and scope and fully take into account the different needs and capacities of all countries, in particular the least developed countries, landlocked developing countries, small island developing States and African countries”.⁸ Thus, the emphasis was to have a broad-based participation in the framing of the rules addressing the future of international tax governance.

(b) Soon thereafter, the UNGA adopted another resolution on the subject “Promotion of inclusive and effective international tax cooperation at the United Nations”.⁹ This was a more specific resolution, rather a first step seeking to break the hegemony of the OECD IF. It specifically noted “the importance of the consideration of international tax cooperation at the United Nations” and acknowledged “the need to strengthen international cooperation on tax matters in a more inclusive intergovernmental forum”. The United Nations General Assembly decided (a) “to begin intergovernmental discussions in New York at United Nations Headquarters on ways to strengthen the inclusiveness and effectiveness of international tax cooperation through the evaluation of additional options, including the possibility of developing an international tax cooperation framework or instrument that is developed and agreed upon through a United Nations intergovernmental process, taking into full consideration existing international and multilateral arrangements”; and (b) requested its Secretary General “to prepare a report analysing all relevant international legal instruments … to recommend actions on the options for strengthening the inclusiveness and effectiveness of international tax cooperation”.

It is noteworthy that these resolutions involved the United Nations General Assembly and thus, reflect the collective will of the UN. Simultaneously, however, multiple other UN led initiatives were underway seeking to redefine international taxation as currently in vogue. For illustration, in the meanwhile, the UN Model Tax Convention adopted a new provision — Article 12-B — to provide for rules governing taxation of “income from automated digital services” in a bid to simplify and moderate the developments relating to taxation of digital services under the Pillar One framework.¹⁰

D. UN Secretary General Report on International Tax Cooperation

Acting upon the UNGA resolutions, the Secretary General presented a comprehensive report towards promotion of inclusive and effective international tax cooperation at the UN.¹¹ Referring to the OECD IF developments, the report comments that “the changes being developed through that process would not fully address a broader discontent rooted in the long-standing conviction, held by many countries and stakeholders, that existing tax treaty rules do not reserve sufficient taxing rights for countries hosting multinational enterprises and constituting markets for their products” and instead, there is a “need to frame international tax cooperation in a more holistic, sustainable development context, including in relation not only to trade and investment but also to inequality, the environment, health, gender and intergenerational aspects.”¹² The report further enlists the “substantive and procedural criteria for fully inclusive and more effective international tax cooperation”¹³ and examines the OECD IF proposed Pillar One and Pillar Two solutions to conclude that in that case neither the “substantive aspect of inclusive and effective international tax cooperation does not, therefore, appear to be adequately met”¹⁴ nor, for multiple reasons¹⁵, are the procedural parameters for true international cooperation met in case of the Pillar One and Pillar Two outcomes.

Painting a grim analysis of the OECD IF’s efforts, the Secretary General’s report seeks to reposition UN as the prime mover in the international tax space inter alia in the following terms:

“47. The foregoing analysis of existing international and multilateral arrangements indicates that they do not satisfy the main elements for fully inclusive and more effective international tax cooperation. OECD has introduced several initiatives to engage and associate countries that are not members of OECD with its work, but many of those countries find that there are significant barriers preventing their meaningful engagement in agenda-setting and decision-making. As a result, it often happens that the substantive rules developed through these OECD initiatives do not adequately address the needs and priorities of developing countries and/or are beyond their capacities to implement.

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49. The analysis in Sections II and III shows that enhancing the role of the United Nations in tax-norm shaping and rule-setting, with full consideration of existing multilateral and international arrangements, appears the most viable path for making international tax cooperation fully inclusive and more effective. Rather than duplicating existing processes, a United Nations intergovernmental process would leverage existing strengths and address gaps and weaknesses in current international tax cooperation efforts.…

50. The United Nations has vast experience of reaching and implementing multilateral agreements that address the needs of all parties, on both politically sensitive and technically complex issues.”

On account of the foregoing, the Secretary General presented three options. The scope and purport of three options were, briefly, explained in the report as under:

“53. The first option would be a legally binding convention, sometimes also referred to as a ‘standard multilateral convention’, that would potentially cover a wide range of tax issues. It would be ‘regulatory’ in nature, as it would set out specific rules creating obligations, including rules that potentially place limits on exercising taxing rights. Many provisions of such a convention might be similar to those in bilateral tax treaties. It would include a statement of the convention’s objectives and definitions of the key terms. It would then provide mandatory, preferably enforceable, obligations that are deemed essential for appropriate domestic resource mobilisation, including rules regarding the reporting and exchange of information for tax purposes, and for strengthening domestic enabling environments. The convention would also establish a monitoring mechanism to ensure adherence to the information reporting and exchange rules, as well as dispute resolution procedures to address failures by parties to adhere to their commitments, such as any rules on the allocation of income across jurisdictions.

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55. A second option, namely, a framework convention, would also be a legally binding multilateral instrument, but one that is ‘constitutive’ in nature, in that it would establish an overall system of international tax governance. A framework convention would therefore outline the core tenets of future international tax cooperation, including the objectives, key principles governing the cooperation and the governance structure of the cooperation framework. Framework conventions may also include institutional provisions for creating a plenary forum for discussion between States that is endowed with the authority to adopt further normative instruments to which States could then become a party.

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58. A third option would be developing a non-binding multilateral agenda for coordinated actions, at the international, national, regional and bilateral levels, on improving tax norms and capacity. Some problems, such as eliminating illicit financial flows, require global action because a handful of jurisdictions can undermine the efforts of the majority. A single approach is not necessary for some other matters, such as the appropriate withholding tax rates that should apply to cross-border payments in a bilateral situation. Improvements to tax administration naturally take place at the national level, but they can be, and frequently are, supported by multilateral and regional processes. Member States, operating through the framework, would analyse tax problems to determine the level or levels at which coordinated actions would be most effective.”

Thus, the report of the Secretary General recommended concrete steps for forward movement towards substantive revisit to international tax cooperation with all of its three options significantly differing from the current state of affairs in the OECD IF. In either scenario, the hegemony of OECD would stand diluted and there would be active participation of all countries under the aegis of the UN akin to any other multilateral initiative thereunder.

E. Recent UN vote

The three options laid out in report of the Secretary General were deliberated upon. These discussions culminated with a draft resolution proposed by Nigeria recommending adoption of the second option.¹⁶ This resolution states that “developing a United Nations framework convention on international tax cooperation is needed in order to strengthen international tax cooperation and make it fully inclusive and more effective” and in order to achieve this objective, it resolves “to establish a Member State-led, open-ended ad hoc Intergovernmental Committee for the purpose of drafting terms of reference for a United Nations framework convention on international tax cooperation”. Marking a clear shift from the highly technical stance of the OECD IF, the resolution stresses upon the Committee to prioritise developing countries and other equitable considerations while designing the framework for international tax cooperation.¹⁷ The resolution further requested the Committee to submit its report containing the draft terms of reference for a United Nations framework convention to the UNGA in its next session. In other words, the resolution sought a comprehensive and expedited roadmap towards international tax reform.

The Nigerian resolution was put to vote on 22-11-2023 which was adopted by an overwhelming majority of 125:48 (9 abstentions).¹⁸ India voted in favour of the resolution.¹⁹ Hence, the second option of the Secretary General report has become the chosen path of the international community, seeking a meaningful reform of international taxation regime.

F. Implications of the current situation and way forward

The adoption of resolution is a historic moment for international tax for a wide variety of reasons. Some of the key reasons are enlisted below:

(a) This is perhaps for the first time in the history of international tax that the UN has taken an initiative to independently examine and usher change in the status quo. Earlier its efforts were largely confined to the peripheral modification of the existing rules towards adjusting them in favour of the developing countries. However, the adoption of the resolution marks the adoption of a new path, wherein the UN has chosen to assert its overwhelming membership towards reshaping the future of international tax.

(b) There is a deep significance to the adoption of the second option recommended by the Secretary General. The third option would have resulted into a non-binding framework, which would not have served the pressing need to addressing the tax avoidance agenda. The first option would have resulted into a multilateral tax convention, but, as the Secretary General report itself admitted, its viability “would depend on there being: (a) a political agreement on the need to address, at the global level and in a legally binding manner, the tax issues to be subject to the convention; and (b) the ability to reach a consensus on approaches. If there is a consensus on some but not all issues to be addressed, a comprehensive agreement may not be viable”.²⁰ However, the second option will result into a “framework” multilateral convention which in itself will not be the end goal and instead will act as a foundational block for further expansion of reforms in the international taxation rules.

(c) At a political level, the resolution reveals a slugfest²¹ between the developed world — which has largely dominated the agenda and outcome of the OECD IF versus the developing countries which, as the Secretary General report notes, were not able to effectively participate in the norm-setting and discussions in the OECD IF²² and were disappointed by the two-pillar solution.²³ It is too early to conclude but the voting pattern in the resolution, wherein the minority were predominantly OECD members, reveals shifting balance of power,²⁴ perhaps in favour of the developing countries.²⁵

(d) Besides the move towards their greater say in the norm-setting process, given the underlying objectives resulting into the resolution as also the mandate of the Intergovernmental Committee, it is very likely that the futuristic rules advance additional taxing rights for the developing countries, thereby vesting with them additional financial resources to address their development and welfare agendas. Such a scenario would be conducive to the overall global economic growth and outlook as well as it would entail effective participation of a much larger number of countries, deliberation from diverse interest groups and factor the differential development agendas.

While the resolution reflects a significant investment of the UN in the space of setting international taxation norms, it is too early to Judge the outcome. Besides further confirmation processes,²⁶ as a way forward, a lot will depend upon the composition, work and outcome of the Intergovernmental Committee which would set the agenda for international tax reform. Nonetheless, the adoption of the resolution reveals that there is bound to be push back against the OECD IF and other options are likely to emerge on how the global fraternity would like to move towards reforming the international taxation rules.