No Prisoner’s Dilemma Here: A Fresh Look at Escapism from the Realities of International Taxation

As OPEC falters, the EU does not seem far behind. As the global experience with cartels signals their failure over time, we witness attempts to breathe new life into the old idea of creating a global (or at least OECD-wide) tax cartel. However, what did not work before globalization stands even less of a chance of success now. Speaking of an abuse of dominant position, few entities can be more aptly described as monopolies than the taxing power of the state – and few are less accountable to their stakeholders for expenditures and the value they provide in return. But as more than a century of experience with antitrust economics has proved, a policy that amounts to choking off or chasing away the goose that lays the golden eggs will be inescapable only in the short term.

Speaking of OPEC, its cartel performance gave rise to hydraulic fracturing technology that unlocked the world’s largest oil reserves – in the US, of all places – and unleashed global industries in renewable energies. Now the same misperception of a “prisoner’s dilemma” capable of holding globalized business hostage is being tried again by the world’s largest rich man’s club, the OECD, and there it is mostly driven by the cradle of democratic socialism – the EU. For decades, both have sought unsuccessfully to rein in what theorists label “harmful tax competition” despite a lack of empirical evidence, merely based on the uncontested inequality of effective tax rates paid. But taxation is the art of the possible. Options and creativity are its mortal enemy. This truism, and not some neoconservative denial of inequality, is why real estate, car owners, labor and consumers are taxed at every turn: they have nowhere to go. The same is simply not true for corporate structures, and it is short-sighted to think natural or legal personhood should be the critical nexus rather than inescapable exposure. Therefore, it is absurd to mourn the inequality in tax rates borne by, say, a supplier of creative technology and its consumer or local employee. In the end, all costs imposed across the value chain are borne by consumers. Virtuous-sounding initiatives to tax “equally” those who have choices, and those who do not, receive easy political support but fail.

Recent studies of actual moving patterns have shown that the tax-elasticity of personal residents is by no means high. In fact, the largest number of ultra-high net worth individuals is found in notorious high-tax jurisdictions like New York, California or Moscow. The overwhelming majority of billionaires chooses to live in Zurich rather than in nearby “crypto valley” Zug, in London rather than in St Helier, in Miami rather than in Nassau, in Paris rather than in Monte Carlo. Reasons include convenience, relevance, time value, and quality of life. But business requires critical mass, and capital accumulation has few alternatives.

Despite occasional publicity from spectacular (and, in most cases, spectacularly unsuccessful) exemplary enforcement actions, the amount of taxes paid by corporations keeps declining steadily. At the same time, critics continue to expect their same-old tune of “international tax harmonization” to end international shopping for corporate tax rates in what is ultimately just a lawful and perfectly rational balancing of costs and benefits, like it is with any other operating expenditure.

In the case of allegedly unlawful Irish state aid to Apple, the European Commission has chosen to confront the globally common practice of advance tax rulings issued as a de-facto condition precedent for substantial foreign direct investment. In my paper “Tempted by an Apple: Europe’s Fall from Grace on Retroactive Taxation” I pointed out that companies have choices, and forum and treaty-shopping, however undesirable from fiscal or regulatory points of view it may be, cannot be de-legitimized, even if they erode the tax base of profligate governments whose approach to public finance can be summed up as “tax-AND-borrow.” Following exposure of its near-fatal indebtedness after 2008, the EU discovered corporations “not paying their fair share” as a red herring to assign political blame for their Member States’ inability to continue financing a comprehensive welfare state. Tax transparency by leaks can only superficially conceal the systemic fact that democratically elected governments continually live beyond their means and lack solutions to increase revenue without choking off growth. Especially in the case of high-tech industries, initiatives such as that of the EU Commission vis-a-vis Ireland and Apple would, in the unlikely event of success, only further contribute to Europe’s loss of innovative momentum and its attractiveness as a corporate domicile in a globalized economy, whatever temporary setbacks free trade may experience.

Joanna Diane Caytas is a Juris Doctor (J.D.) candidate at Columbia Law School and a guest contributor to the Oxford Business Law Blog.