A New Taxing Right for the Market Jurisdiction: Where Are the Limits?

Abstract

This article contributes to the ongoing discussions regarding which business models should fall under the scope of the new taxing right of the market state proposed in the OECD Secretariat’s Proposal for a Unified Approach. In the first section, it contends that the proposal for the new taxing right should be built upon a solid principle-based foundation. Given that ‘value creation’ is a subjective arbitrary concept, it cannot be relied upon when attributing taxing rights to the market state. For this reason, the author argues that the allocation of taxing rights to the market jurisdiction is justified only when the market jurisdiction is regarded as the place of origin of the income where wealth is produced. In the second section, the article analyses the business models in which customers take part in the income-generation process of multinational enterprises (MNEs) and thereby establish an economic link between the profits of highly-digitalized MNEs and market states. In that regard, the article contributes to the discussion on what ‘businesses in scope’ under the Unified Approach should include. Last but not least, the article considers the limitations of the new nexus rule based on a threshold of revenue and what other alternative nexus solutions could be developed.

Note: Reprinted from Intertax, Vol. 4, Issue 3, 2020, 301-316, with permission of Kluwer Law International.

Keywords: Unified Approach, Value creation, Wealth production, Principle-based solution, Consumer-facing businesses, Market states, B2B2C, B2C2B, Digitalservice PE, Virtual Agency PE

JEL Classification: K33, K34