Taxing Indirect Transfers: Improving an Instrument for Stemming Tax and Legal Base Erosion

48 Pages Posted: 6 Jun 2013 Last revised: 7 Dec 2014

See all articles by Wei Cui

Wei Cui

University of British Columbia (UBC), Faculty of Law

Date Written: November 24, 2013

Abstract

Numerous countries (e.g. Canada, Australia and Japan) tax foreigners on the gain realized on their transfers of interests in foreign entities that invest in real estates in these countries. In the last few years, actions taken by tax authorities in India, China, Brazil, Indonesia and other non-OECD countries have highlighted the possibility of taxing a broader range of “indirect transfers” by foreigners. This Article argues taxing indirect transfers can have vital policy significance in countries where foreign inbound investments are actively traded in offshore markets: it may not only deter tax avoidance, but also stanch “legal base erosion” — the substitution of offshore investment structures for deploying legal mechanisms in onshore markets. However, the successful implementation of a broad policy of taxing indirect transfers depends crucially on securing voluntary taxpayer compliance. To this end, this Article proposes to rationalize existing practices for taxing indirect transfers in two major ways: (1) striking a better balance between ex ante and ex post lawmaking, and (2) consistently treating taxable indirect transfers as sales of underlying target assets (thus allowing conforming adjustments in tax basis). These improvements better target tax avoidance, result in fewer arbitrary consequences, and create incentives in the market place that facilitate compliance.

Keywords: indirect transfer, international taxation, Vodafone, Circular 698

JEL Classification: H24, K34

Suggested Citation

Cui, Wei, Taxing Indirect Transfers: Improving an Instrument for Stemming Tax and Legal Base Erosion (November 24, 2013). Virginia Tax Review, Vol. 33, No. 4, 2014. Available at SSRN: https://ssrn.com/abstract=2274711 or http://dx.doi.org/10.2139/ssrn.2274711

Wei Cui (Contact Author)

University of British Columbia (UBC), Faculty of Law ( email )

1822 East Mall
Vancouver, British Columbia V6T1Z1
Canada
6048274765 (Phone)

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