United Kingdom

Transnational expertise and the expansion of the international tax regime

/ Martin Hearson / 2 Comments

Hearson, M, 2018. Transnational expertise and the expansion of the international tax regime: imposing ‘acceptable’ standards. Review of International Political Economy 25(5):647-671.

We are living through a period of instability and change in the international tax regime, perhaps unprecedented in its depth and duration. It’s driven by economic and political changes, such as austerity politics, the digitisation of the economy, and the rise of China and other emerging powers. To understand the impact of these pressures on the institutions of tax cooperation, we need to know how the politics at international level works, and we have two complementary lenses to do so. One focuses on conflicts and alliances between states with different preferences: developed versus developing, offshore versus onshore, US versus Europe, and so on. The other takes a sociological approach, studying the transnational policy community that makes international tax rules and its interactions with other actors such as politicians and campaigners. To explain why the OECD, G20, EU or UN have reached a particular conclusion, we probably need to use both of these lenses.

But how do states arrive at their national positions? Those positions set the parameters for subsequent transnational discussions, but they also determine if and how states will implement international agreements. For example, with whom will they negotiate bilateral tax treaties, and on what terms? The same sociological lens is important here, because national tax policy is made by a community of people, many of whom are also involved in tax standard-setting at the OECD and elsewhere. At both national and international levels, international tax has historically been an obscure topic, the preserve of this small community of experts. Every so often – as in recent years – the community faces a conflict with others who aren’t steeped in the principles underlying the tax system, nor its technical details. Such conflicts can play out at the national level, as well as in the transnational sphere.

In an article published over the Christmas break, I explore this using archival documents that show how the UK formed its policy towards bilateral tax treaty negotiations with developing countries. I reach two important conclusions:

  1. Often it was the UK, rather than its developing country negotiating partner, that initiated and drove forward negotiations. The UK’s aim was to reduce the tax paid by British businesses abroad, making them more competitive in comparison to firms from other countries. So we can’t explain the expansion of the international tax regime into developing countries solely through a focus on developing countries’ actions.
  2. Tax experts, from the Inland Revenue and the business community, dominated policy formulation. They saw tax treaties as a means to lock developing countries into ‘acceptable’ OECD tax standards, a long game designed to protect British businesses from anything unconventional. Meanwhile, their non-expert counterparts in other government departments and businesses had different priorities derived from a focus on short-term tax gains. They were mostly unable to influence policy, however, indicating that business power over tax policy depends a lot on expertise.

I’ve uploaded all my photographs from the archive files that I cited into a zip file (warning: it’s very large: 660 pages and 273MB). Below is a selection to illustrate the argument.

First, Alan Lord, Deputy Chairman of the Board of Inland Revenue, sets out the tax expert view in 1976:

Memo from Alan Lord, 1976. Click to see the whole document.

Here is an extract from the minutes of a typical meeting between the Inland Revenue and tax professionals from British businesses. As can be seen, businesses are being consulted not just about which countries to negotiate with, but also about the sticking points in individual negotiations – in this case Malaysia.

Minutes of a meeting between Inland Revenue and representatives from British businesses, 1972. Click to enlarge.

Below is one of my favourite exchanges, from a few months later. In contrast to the open attitude to the CBI tax committee, the same Inland Revenue civil servant (Ann McNicol, now Ann Smallwood) refuses to share even a list of current negotiations with other departments.

Extract from a letter from Smallwood, Inland Revenue, to Harris, Foreign and Commonwealth Office, 1973. Click to see the whole document.

Smallwood’s letter provokes a round of very angry memos within those departments, of which this is a good example.

Extract from a memo by Kerr, Foreign and Commonwealth Office, 1973. Click to see the whole document.

A particular bone of contention between the two groups (Inland Revenue and the CBI tax committee on the one hand, Foreign Office, Departments of Trade and Industry, and their business interlocutors on the other) was the stalemate in negotiations with Brazil. In the paper I show how the tax experts in business and the Inland Revenue did not want to set what they saw as a bad precedent by caving in to Brazilian demands to sign a treaty that contravened OECD standards. They came under strong pressure to sign a treaty “at any price” from business lobbyists who thought UK firms were losing out to German and Japanese competitors that did benefit from treaties with Brazil. The consequence, as Smallwood put it in 1975, was that business “spoke with two voices”.

Extract from a memo by Smallwood, Inland Revenue, 1975. Click to see the whole document.

Ultimately, as the absence of a UK-Brazil treaty today underlines, it was the tax experts who won the day. This illustrates that, while businesses have certainly helped shape the design of the international tax regime, the corporate lobby is far from monolithic in its preferences and its ability to influence. A lobbying position stands more chance of success if it is coherent with the underlying design principles of the international tax regime, and articulated by members of the community of tax professionals at its heart. Whether this conclusion still holds in an era of politicisation and rapid change perhaps merits some further investigation…

“A gathering of international chatterers for the purpose of chattering.” The birth of the OECD’s Committee on Fiscal Affairs.

/ Martin Hearson

In my previous post I explored the United Nations’ brief post-war flirtation with a Fiscal Commission, which came stuttering to a halt in 1951 due, it seemed, to the lack of a compelling purpose that might have motivated states to fight to retain it. The United Kingdom had supported a Russian proposal to wind up the UN’s tax work, a position that seems consistent with its subsequent opposition to the creation of what is now the UN Committee of Experts on International Cooperation in Tax Matters two decades later. It’s perhaps more surprising that, as we will see, the British were initially opposed to the creation of a Fiscal Committee at the Organisation for European Economic Cooperation (OEEC), the predecessor of the OECD, as well. Today the UK is a strong supporter of the OECD’s position as the dominant site of international tax cooperation, but it did not start out that way.

We begin, as the League of Nations’ tax work did, with a resolution of the Executive Committee of the International Chambers of Commerce resolution, in 1954. The resolution identified double taxation as a “serious obstacle” to trade and investment in Europe, and for OEEC members to take steps to relieve it. It asked for unilateral measures, bilateral treaties and, ideally, a multilateral convention. The OEEC’s secretary general was sceptical that the organisation could add any value here, especially given that the UN had not at this point formally dissolved its Fiscal Commission.

He also set out another surprising objection to the ICC’s proposal. It is often asserted that the OEEC picked up the League of Nations’ London draft model bilateral tax treaty, which favoured the interests of capital exporters, rather than the capital importer-favouring Mexico draft. While it is probably true that the eventual OECD model is closer to the London than the Mexico draft, the ICC’s proposal that the OEEC use the London draft was actually a problem for the OEEC, because not all of its member and associate countries had endorsed it. “If an approach of this kind were to be adopted by the OEEC, therefore,” concluded the Secretary General, “it would be necessary for the Organisation to set up an expert body charged with the duty of attempting to produce a more acceptable draft.”

Extract from OEEC Secretary General's memo, 12 November 1954

Soon after this, Switzerland and the Netherlands began to circulate proposals for a fiscal commission. In a curious echo of the current debate around digital taxation, these proposals all expressly mentioned turnover taxes, increasingly imposed by states on the rendering of services, as the main new problem motivating their concerns.

The Dutch note circulated in 1955 noted that “the number and extent of problems relating to taxation has been steadily increasing, not only in the national field but also and especially, in connection with the gradual intensification of international economic relations, in the international sphere.” It advocated work under the umbrella of the OEEC because it was consistent with the organisation’s mandate, and because of the need to discuss in “a smaller circle than the United Nations.” In December 1955 the Netherlands and Switzerland were joined by Germany, publishing a joint memorandum proposing the creation of a expert committee of “specially qualified high-ranking Government representatives,” and in January 1956 an ad hoc committee was created to conduct a study into the matter. The ad hoc committee immediately recommended the creation of a full committee, citing “ample evidence that there are cases of double taxation which constitute obstacles to international trade and investment, and that action to remove these obstacles should be possible within a group of like-minded nations such as the members and associated countries of the OEEC.”

Extract from Dutch memo to the OEEC, 11 July 1955

In March 1956, the Fiscal Committee was created, against the judgement of the British and Scandinavians. Britain’s attitude throughout had been sceptical, but acquiescent. The British representative, Sir Hugh Ellis-Rees, “criticised the memorandum for being vague and for not revealing what the usefulness of the study would be, nor what were its precise objectives.” On the other hand, he told the Inland Revenue, “I think that in our position in the organisation it would be tactically unwise to try to suppress at this stage a movement which has some support however ill-founded it may turn out to be.” Two handwritten notes in the Inland Revenue files are worth quoting at length here. One is from Alan Lord, who eventually sat on the Committee for the UK.

We regard the whole idea as, if I may borrow the FO [Foreign Office] words, “futile and unrewarding” or, in cruder terms, as a gathering of international chatterers for the purpose of chattering.

We must, in the interests of international unity, agree to attend a meeting, which is [illegible] but if anything on this should turn up with Mr Daymond and [illegible] you will no doubt determine your answer by reference to our Policy of being Against It.

The author of the second note is unidentified, but it shows how the UK viewed the Swiss and Dutch proposals, as well as – in the third paragraph – a pessimism that seems rather anachronistic when compared to the kind of work conducted by the OECD today.

1. Insofar as I can discover from this rather Crazy Going file, the pace is being made by: (i) the Dutch, who seem to be resentful about the liquidation of the Fiscal Commission of UN (which we ourselves regard as a Good Thing) and so want to set up a new Committee or Commission to discuss, inter alia, fields, spheres and bases, & (ii) the Swiss, who seem to be engaged in a private brawl with the French.[…]

2. If this be so, the answer to (i) is that we regard this exercise, to use the FO phrase, as “futile and unrewarding” and (ii) that this is a private fight in which we do not wish to join.

3. There seems to have been later on a ganging up of Germans, Swiss and Dutch to give a regrettable academic flavour to the whole thing and to discuss domicile, “classification of income” and “localisation of income”, whatever these terms may mean. Presumably some attempt to reach, for example, agreement on whether interest should be charged by reference to origin or residence, an exercise which long experience has shown to be pointless.

The British concerns were, I think, unfounded, as the new committee raced through a list of five thorny areas within a year, finding consensus on topics such as permanent establishment and the taxation of shipping and airlines, which are recognisable today as core components of the OECD model convention.

The most recent document in this particular file is an interim report from the Fiscal Committee in 1957. It shows how within 18 months the committee was already consolidating its ways of working (Working Parties on each specific issue, just as the OECD has today) and forming a clear raison d’être. In the excerpts below, I’ve picked out three things that struck me from the committee’s interim report. First, how forcefully it began to make the case for tax cooperation, as European economies became more integrated. Second, the recognition that other countries might be incentivised to follow Europe’s lead, because of its “placement in the world economy.” It is interesting to reflect on how much this echoes the EU’s tax cooperation efforts today, perhaps more so than the OECD, for which the economic power of its members complicates its authority.

Extract from interim report of the OEEC Fiscal Committee, 3 July 1957

Finally, the committee members had already begun to “harmonise their views”, perhaps the first conscious expression of what would become a powerful driver of successful tax cooperation: the formation of a consensus about how to do tax among an international community of practitioners.

chattering4

“Futile and unrewarding”: the wilderness years of the international tax regime

/ Martin Hearson / 2 Comments

Almost all histories of the international tax regime begin with the League of Nations: from the model conventions issued by its Fiscal Committee in 1928, to the Mexico and London draft model conventions.  The latter was agreed by a group of primarily European countries in 1946 at Somerset House, just across the road from where I am now. The League never reconciled the differences between the two conventions, and so the modern history of the regime is usually dated from 1963, when the OECD’s Fiscal Committee first agreed an OECD model bilateral tax convention. For the last 50 years, the OECD model has been the foundational text of the international tax regime, even forming the template for its United Nations equivalent.

While I knew that the United Nations initially tried and failed to pick up the League’s work, the interregnum between 1946 and 1963 is often raced over quite quickly in tax history stories: Sol Picciotto devotes five pages to it in his magisterial International Business Taxation [pdf]. So I decided to sit down in the British National Archives to see what I could find out about this intervening period. The transition from the League to the OECD is important because it is often stated that the OECD picked up and ran with the London Draft, which suited the interests of its members. The Mexico draft, largely agreed among developing countries, fell to one side, according to this account, paving the way for an international tax regime that has a bias in favour of capital exporting states. While I will shed a bit of (sceptical) light on this in what follows, I am mainly going to tell the story through some of the more colourful excerpts from the archives. Today we will look at the UN Fiscal Commission, and I’ll follow this up next week with the OEEC (later OECD) Fiscal Committee to which the baton passed.

Part 1: The “Imperialist” powers’ efforts fail at the United Nations

The sense one gets from both the official reports of UN Fiscal Committee meetings between 1947 and 1951, and the British participants’ own readouts, is that political divisions between groups of states were less problematic than the lack of a clear and compelling mandate to achieve anything in particular. In the committee’s first session, it was the participant from the United States who drafted the proposals for further work that made their way into the final draft, even though he also initiated a protracted (and familiar) discussion about being realistic given limited secretariat resources. Indeed, at the second session, “the secretariat work had been unevenly done and was on the whole badly presented”, said the British participant, WW Morton, who regarded the secretariat’s approach as “over-academic”. (There is a theme of hostility towards things being ‘academic’ in these Inland Revenue files, which I am not taking personally).

By this point, cold war divisions had already emerged, although the sense from the British accounts is that they were not insurmountable, since the Soviet group was content on occasions to make its statements and then abstain from votes, or else be outvoted. Still, here is a flavour of the kind of thing, taken from Morton’s readout. He describes the member from the USSR stating that international work on double taxation put “pressure on the under-developed countries to the advantage of highly developed countries” since it primarily reduced the taxation of their investors.

Extract from British participant's report of the UN Fiscal Committee's second session

Of the second session, Morton observed that “the session was not very productive” but was keen to support anything that might allow the UK to conclude more tax treaties with developing countries. Everyone could agree to support information gathering and dissemination, and the translation of the secretariat’s compendium of international tax agreements into Spanish was something the British supported enthusiastically, keen as they were to obtain tax treaties with Latin American countries (more on that here).

Extract from British participant's report of the UN Fiscal Committee's second session

 

It is in the Commission’s third session that we can first see a divide between developed and developing countries. The International Civil Aviation Organisation (ICAO) had brought a proposal for reciprocal exemption of airlines, by which companies operating flights would be exempt from taxation in the countries to which they fly, paying it only in the country where they were based. India, Pakistan, Venezuela and Cuba raised objections, pointing out that if only one country signing the treaty had an airline, “reciprocal exemption is quite unfair.” The ICAO proposal was, however, consistent with the treaty policy of the UK, and other countries with their own airlines. The ICAO proposal fell after a vote in which the developing countries were joined by the Soviet group, but Morton attributed this to a “procedural tangle” and poor chairing, rather than an insurmountable division. “As will be observed, the work of the Session was only modestly productive. Nevertheless, it is probably worth holding.”

When the Commission’s work reached the ECOSOC, however, it appears that sentiment had changed. Morosov, the Russian participant (also its representative on the Commission itself) expressed his familiar objection that the Commission’s work on double taxation “was in reality intended to promote economic conditions favourable to the activities of British and American monopolies,” concluding that the Commission “was engaged in futile operations, and that it was therefore useless to keep it in existence.” According to his Polish counterpart, “the majority of the Commission had, by certain of the recommendations adopted by that body, tried to exploit the authority of the Economic and Social Council to relieve investors from the highly-industrialised capitalist countries of the taxation which those less highly developed countries were entitled to enforce.”

Extract from ECOSOC discussions of the report of the third session of the UN fiscal commission

 

Morton, the British representative on the Commission, had previously reported an informal conversation with Morosov from which he concluded that this language was more of a formality, and that Russian objections were far from fatal to the Commission. It was thus the British who really plunged the knife in to the Commission, responding that the UK was “in agreement with the Soviet Union and Polish delegations as to the desirability of winding up the Commission’s activities, although for other reasons than those advanced by them.” The UK wanted to see preparatory work for ECOSOC discussions carried out by “small groups of experts with the assistance of the Secretariat,” rather than by a permanent functional commission serviced by a dedicated secretariat. This would appear to have been the death knell for the UN Fiscal Commission, which was wound up in 1954.

So in this quick look through the archives, we’ve seen that the demise of the UN Fiscal Committee was not only a product of inter-country rivalry (though that produced some entertaining diplomatic fireworks). Perhaps more significantly, it was a matter of failure to gather institutional momentum, in part due to the lack of effective secretariat support, and lukewarm support from across the board. The UK and US were never strongly in favour of a permanent international committee examining taxation issues. As we will see in part 2 next week, this was not merely scepticism of the UN: the British also opposed the creation of a “gathering of international chatterers” at the OEEC, which eventually became the OECD Committee on Fiscal Affairs…

 

The Colombia UK tax treaty: 80 years in the making

/ Martin Hearson

Hearson, M, 2017. The UK-Colombia Tax Treaty: 80 Years in the Making. British Tax Review (4):375-384.

Today at 2.30pm, the UK parliament’s Third Delegated Legislation Committee will debate tax treaties with Lesotho and Colombia. It will be interesting to see how much debate really takes place, a matter on which I’ve commented before once or twice.

The hearing gives me a chance to plug my article in the British Tax Review last year [pdf], which traced the UK’s attempts to obtain a tax treaty with Colombia over 80 years. Its overtures were frequently rejected, at first because Colombia was not interested in tax treaties, then because it was bound by the terms of the Andean pact, and finally because it could not agree on terms with the UK, especially over technical service fees, an area where the UK position has changed. Since the article was published I had the chance to speak with a Colombian tax official, who told me that Colombia’s change of heart on technical service fees is a change of view about tax policy, rather than a concession forced by OECD membership, as I speculated in the article. Of course, the two developments might not be totally independent.

Here is how the article concludes:

The demands of OECD membership, combined with the unusually liberal use of MFN clauses during an era of less-than-strategic negotiation, seem to have backed a country once insistent on a “red line” over technical service fees, and before that sceptical of accepting the limitations on its taxing rights that come with a tax treaty, into a corner. Having been constrained in its negotiating position by the pro-source taxation stance of the Andean community, Colombia now finds itself pulled in the other direction by the OECD. Is this further proof that the world is moving inexorably towards an OECD-type tax system? The gradual but steady expansion of the OECD, given a fillip most recently by the announcement that Brazil would begin accession talks, might lead us to such a conclusion. In contrast, however, the continued expansion in the use of the technical service fees Article by developing countries, together with its imminent introduction into the UN Model Treaty, point towards a growing divide between states on this topic.

The long history of negotiations between the UK and Colombia perhaps demonstrates more than anything the extent to which the tax treatment of international transactions today is a product of historically specific events. Each side’s positions changed radically over time, from a refusal to accept each other’s terms to a willingness to concede them outright. The UK’s constant enthusiasm for a treaty with Colombia stands in contrast with the latter’s oscillation between hot and cold. If Colombia turns cold again, however, it will be left with a fossilised relic of its negotiating position in 2016. Given the rarity with which tax treaties are terminated or their terms substantially renegotiated, treaty networks are collections of these fossils. Hence Colombia is stuck with its MFN [most favoured nation] clauses, regrettable outcomes of its negotiating spree in the 2000s. The biggest irony, however, is reserved for the UK. Despite its apparent willingness in the 2000s to forgo a treaty with Colombia over withholding taxes on technical service fees, Britain retains, as a legacy of its negotiations from 1973 until the turn of the century, the largest number of treaties of any OECD Member containing just such a clause

Some follow-up on parliamentary scrutiny of the UK-Senegal treaty

/ Martin Hearson

As my last post anticipated, the ratification of the UK-Senegal tax treaty was debated in parliament last week. It was great that a debate on the impact of a tax treaty between the UK and a developing country happened at all. Some important issues came up:

  • What is the role of the Department for International Development in the UK’s treaty policy with respect to developing countries? None, on the basis of the reply from the minister, David Gauke.
  • Why is there no cost-benefit or development impact analysis of the UK’s treaties with developing countries? Mr Gauke said that it would not be possible to do this in a meaningful way, although as this post by Francis Weyzig points out, Ireland and the Netherlands have both now published analyses that do consider the effects of their treaties on developing countries.
  • Does the UK government bear any moral responsibility for the outcome of a negotiation with another sovereign state? That is certainly an interesting point for further consideration.

This was a good start in comparison to last year’s discussion of the UK-Zambia treaty, but these topics were still only skated over. The format of these ‘debates’ is always the same: the opposition shadow minister asks some questions, the minister responds from his briefing notes, and then the committee votes ‘yes’. It is near impossible to have a real discussion about substantive matters, such as the UK’s red line on a withholding tax clause for technical service fees (discussed below). This is partly because of the mountain of treaty detail within which substantive issues are hidden, but also because all parliament can do is vote ‘yes’ or ‘no’ after the treaty has been signed.

There are two things the UK could do about this, which other countries have done. First, it could commission a comparative review, along the lines of those that have now been conducted for Ireland and the Netherlands, which highlights the main distinctive features of its treaties with developing countries so that non specialist MPs can engage with them meaningfully. Second, it could publish its treaty negotiating position, as Germany and the US have both done, with an opportunity for public and parliamentary debate on this position in general terms.

Now, some technical discussion. The night before the debate, I bumped into one of the British negotiators, who said he was “not very impressed” with my post on the treaty. The next day, the Labour opposition asked some questions based on input from ActionAid, which followed the same lines as my comments. The minister responded with much the same criticism I’d heard the previous night, so I’m going here to set the record straight on the technical points, insofar as I can from my non-technical background.

Technical service fees

I stated last week that “this treaty does not include a clause permitting Senegal to tax fees for technical services paid to the UK,” but this was imprecise wording. As Mr Gauke pointed out, the treaty does permit such fees to be taxed in Senegal, but with a major restriction. They can only be taxed in Senegal if the British recipient of the fees has a physical presence in Senegal for 183 days in a year. Even then, the fees can only be taxed as net profits, not gross fees as the standalone clause would have allowed for. The whole debate at the UN on this clause begins from the view that a physical presence is increasingly irrelevant in the 21st century economy, and that it is very difficult for developing countries to get an accurate view of a service provider’s net profits.

As the minister continued, “Senegal’s approach to the taxation of services differs from that of the UK,” and this is one area where the UK approach prevailed. This appears to be a red line for the UK now, but it’s worth noting that (on a quick count) Great Britain has nine treaties with sub-Saharan countries that do permit them to tax technical services without a physical presence. Senegal is arguably therefore disadvantaged relative to quite a few of its regional neighbours.

Supervisory activities

As I noted last week, the UK-Senegal treaty doesn’t follow the UN model treaty [pdf] wording on supervisory activities in connection with a building site, which states (my emphasis):

The term “permanent establishment” also encompasses: (a) A building site, a construction, assembly or installation project or supervisory activities in connection therewith, but only if such site, project or activities last more than six months

I said in my post that this means “supervisory activities associated with a building site in Senegal conducted by a British firm will not be taxable in Senegal,” but as Mr Gauke clarified, the treaty “does allow that” in practice. This is because the commentary to the OECD model tax treaty has been amended to incorporate it. It states in paragraph 5.17:

On-site planning and supervision of the erection of a building are covered by paragraph 3. States wishing to modify the text of the paragraph to provide expressly for that result are free to do so in their bilateral conventions.

The International Bureau of Fiscal Documentation (IBFD), in a commentary on the differences between the UN and OECD models, seems to concur that there is no longer any substantive difference between the two on this point:

According to the UN Model, supervisory activities are covered by this provision, irrespective of whether they are performed by the main contractor or subcontractor. The OECD Model does not include these activities in the text of the construction clause. According to the OECD Commentary, supervisory activities were, until 2003, explicitly subsumed under the construction clause provided the work was performed by the main contractor itself. Supervisory activities performed by a subcontractor were not, however, considered to be covered by this provision. This difference between the OECD and UN Models disappeared due to the changes to the OECD Commentary in 2003. The supervisory activities of a subcontractor were then also considered to be covered by the provision.

But the difference does seem to be important to many countries. They prefer to take the UN option of explicitly providing for the taxation of supervisory activities, rather than leaving it to a clarification in the commentary on page 101 of the 496-page model treaty. Turning to the reservations and observations published alongside the OECD model, twenty countries, including six OECD members, have made an official note along the lines that they reserve the right to have the supervisory activities wording included in their treaties. They are: Australia, Korea, Slovenia, Slovak Republic, Mexico, Portugal, Albania, the Democratic Republic of the Congo, Hong Kong, Serbia, Argentina, Malaysia, the People’s Republic of China, Singapore, South Africa, Thailand, Vietnam, India, and Indonesia. There is also the following anomalous note:

Bulgaria does not adhere to the interpretation, given in paragraph 17 of the Commentary on Article 5, and is of the opinion that supervision of a building site or a construction project, where carried on by another person, are not covered by paragraph 3 of the Article, if not expressly provided for.

Royalties for TV and radio broadcasts

I also pointed out that the treaty was unusual in not including a reference to TV and radio broadcasts in its definition of royalties. The UN model states (my emphasis):

The term “royalties” as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work including cinematograph films, or films or tapes used for radio or television broadcasting,

Again, I said that this meant such payments could not be taxed by Senegal. The minister responded that, “the OECD commentary on the provision makes clear that cinematographic films include material for TV broadcast.” It does indeed state at paragraph 12.10 that:

Rents in respect of cinematograph films are also treated as royalties, whether such films are exhibited in cinemas or on the television.

But this is a little more restrictive than the UN wording, as there is no mention of radio. Of course, this may be splitting hairs, especially as only Argentina and Vietnam have observations in the OECD model on this point. But this time the IBFD discussion seems to support the view that there is a substantive difference here:

As the OECD Model does not include, in the definition of the term “royalties”, payments made as a consideration for the use of, or the right to use, films or tapes used for radio or television broadcasting, the UN Model deviates in this respect from the OECD Model.

Questions the opposition should ask about the new UK-Senegal tax treaty

/ Martin Hearson

Back in February, the UK and Senegal signed a bilateral tax treaty. The treaty is up for ratification this week, so I thought it time to take a look. Ratification happens through the delegated legislation committee, and entails very little debate. The last time a treaty between the UK and a developing country was ratified, I thought it was a shame that there had not been more discussion, which is why I’m writing in advance this time. I’ve also commented in the past, as did ActionAid and Mike Lewis, on the Danish treaty with Ghana.

So what questions might an interested Shadow Financial Secretary ask during this ratification debate? Here are three suggestions.

First, they might ask about a few of the provisions within the treaty that disadvantage Senegal and that seem to go against modern negotiating trends. The table below shows some provisions within the UK-Senegal treaty that follow the OECD model (which favours the developed country) rather than the UN model (which is supposed to reflect a good balance in a negotiation between a developed and a developing country). The first of the three percentage columns shows that these are all provisions that have been included in the majority of treaties signed by developing countries in recent years; the second shows that they are included in the majority of Senegal’s treaties; the third shows how often the UK has conceded them to developing countries.

Selected provisions from the UK-Senegal tax treaty in context

Data source: ActionAid tax treaties dataset, forthcoming

The treaty is particularly unusual in that supervisory activities associated with a building site in Senegal conducted by a British firm will not be taxable in Senegal, nor will royalties paid to the UK for radio and TV programmes broadcast in Senegal. Both of these provisions are included in around 90% of tax treaties signed by developing countries, but are omitted from this one. It would certainly be interesting to ask why.

Second, it is notable that this treaty does not include a clause permitting Senegal to tax fees for technical services paid to the UK. This is something that Senegal’s chief negotiator has for years advocated strongly for, including in this submission to the UN tax committee [pdf]. The UK has many older treaties with developing countries that include this provision, but more recently it seems to have changed position, opposing them. In this negotiation, it looks like Senegal made a concession on this point. This is a contentious issue at the UN tax committee, but the committee – which has members from the UK and Senegal – looks to be heading towards including it within its model treaty. It would therefore be very interesting for politicians to debate the UK’s position.

Third, the ratification debate on this treaty could be an opening for a broader discussion of what the UK aims to achieve through its tax treaties with developing countries. To set this in context, in the chart below, every point represents a tax treaty signed by a developing country, with the vertical axis showing how source-based it is (that is, how much its content permits the developing country to tax investors from the treaty partner). The higher the point, the more the balance of the treaty tends towards the developing country’s favour. There’s a leisurely upward trend.

Source/residence balance in tax treaties: UK and Senegal highlighted

Data source: index based on the forthcoming ActionAid tax treaties dataset

The UK’s agreements with developing countries are in red, while Senegal’s are in blue. The UK-Senegal treaty is purple. While it looks to be about average for both countries, it is certainly one of the more restrictive (“residence-based”) treaties signed by developing countries in recent years. This seems to be typical of treaties signed recently by the UK, but a worse deal for Senegal than it has obtained for a few years. The implication that the UK is one of the toughest tax negotiators with developing countries is surely worth political interrogation, at a time when its Department for International Development is urging developing countries to improve tax collection.