The last two decades have been a period of great ferment in international taxation. Economic globalisation and the digitalisation of the economy have resulted in substantial changes in business models and structures. These have in turn led to concerns about whether the existing international tax system, designed for a world of physical, largely bilateral trade and investment, is fit for purpose in a world of global supply chains and virtual goods and services. These concerns started to come to a head with the financial crisis of 2008. At the same time, the rise of emerging and developing countries in the tax arena has called into question the consensus that developed in the early to mid-20th century.
This has led to two major developments in the international tax system. The first was the implementation of the Foreign Account Tax Compliance regime (FATCA) and the Common Reporting Standard (CRS). The second is the Base Erosion and Profit Shifting (BEPS) project initiated by the G20 in 2012 and led by the OECD. The BEPS project has suffered from two major failings. The proposed solutions are innovative procedurally and have increased tax multilateralism via the Inclusive Framework and the Multilateral Instrument. Substantively and conceptually, however, they largely revisit proposals and discussions that have been around for decades. The G20 and the OECD were largely driven by revenue concerns and the need to be seen to be doing something, and quickly. Both are unconducive to fundamental review and reform. Furthermore, the OECD countries were not and are not interested in challenging an international tax regime that largely benefits them, to the detriment of many developing countries.
This concentration on revenue and performative politics and the unwillingness to address fundamental questions have meant that the policy and academic discourse has been almost exclusively on corporate taxation. With the important exception of account information reporting (FATCA and CRS), the treatment of individuals has been left out of the discussion.
This is unfortunate, because the international tax system is as out of date for individuals, in particular for expatriate and migrant individuals, as it is for corporations. The existing system was designed for a world of physical provision of services, limited cross-border investment by individuals and limited voluntary migration. All of this has changed with advances in communications and transportation. Estimates by the World Bank, the United Nations and others vary, but currently there are about 275 million expatriates and migrants. Although not more than 3.5% of the world’s population, this number has risen sharply in the last few decades. In addition, this ‘new mobility’ is often marked by multiple or serial migrations. Expatriates and migrants can be caught by overlapping jurisdiction, multiple reporting requirements and dual tax residency.
At the same time, FATCA and CRS raise issues of data privacy and security, while proposals for net wealth taxes, if implemented in any serious way, will need to deal with the same issues of double taxation and privacy that arise in the income taxation of individuals.
These regimes for the taxation of individuals need to be considered in terms of both fairness to individuals and fairness as between states, particularly where the competition is between developed and developing ones. The literature on fairness in taxation at the domestic level is inappropriate for evaluating international tax policy, and the developing literature on the appropriate the cross-border taxation of entities does not sufficiently address the rights of states or of natural persons in the taxation of individuals, which raises fundamental issues of human rights, justice and privacy that do not apply to entities. The paper will examine the normative basis of the existing regimes for taxing individuals in the cross-border context and consider the implications of notions of fairness for our understanding of the international taxation of individuals.