Economising international tax dispute resolution: transaction-cost perspective

Abstract

The unprecedented extent of globalisation, the growth of international business and global value chains, and businesses’ greater use of tax optimisation schemes have all spurred the proliferation of international tax disputes. The situation may be further exacerbated, at least in the short run, by the newly launched Base Erosion and Profit Shifting (BEPS) Project, which was initiated by the Organisation for Economic Co-operation and Development (OECD) together with the Group of 20 (G20) as a response to aggressive tax planning by many multinational enterprises (MNEs). These are all placing significant pressure on the current system of international tax dispute resolution (ITDR). Traditionally, most tax disputes have been finalised through the Mutual Agreement Procedure (MAP). However, this mechanism has been increasingly criticised for its lack of efficiency, finality and transparency. Many believe the procedure is fundamentally broken. Correspondingly, the orthodox literature of ITDR has placed an overwhelming focus on legalistic methods of dispute resolution, such as tax arbitration or adjudication. In particular, students of ITDR tend to draw on lessons from trade and investment regimes, both of which are characterised by a legalistic dispute-settlement system. This research questions the validity of the comparative study based purely on legal terms, and seeks to build a self-sufficient, interdisciplinary framework for the topic of ITDR, drawing on the light of transaction cost (TC) theory. The framework facilitates a benefit-cost evaluation of the ITDR system. On the benefit side, the concern is to identify a dispute-settlement mode that can best economise the entire international tax regime. On the cost side, the question is which ITDR mode implies the lowest transaction costs. Based on this benefit-cost analysis, a MAP-based dispute-settlement system, which will be centred upon the MAP but supplemented by tax arbitration and mediation, is derived as the optimal mode of ITDR. This research further explores ways to economise various ITDR mechanisms including the MAP, tax arbitration and mediation, still based on the TC framework. With respect to the MAP, the proposals on the structuring of the MAP process, the efficient model of tax participation, and the reassessment of “package deals” are intended as the most original contribution from this research to the existing literature of ITDR. As to tax arbitration, this research emphasises the synergy between the MAP and tax arbitration, highlighting the supplementary role of tax arbitration in the MAP-based system. In particular, the proposals on the documentary trial method and the wider use of final-offer arbitration are distinguished from the past studies. This author also explores solutions to address the underuse of tax mediation. In addition to the measures that are particular to each of these ITDR mechanisms, this thesis also proposes a holistic solutions to economise the entire ITDR system, i.e., to institutionalise the system.