There Must Be Fifty Ways to Tax a Digital Nomad: Does Taxation Constrain the Geographical Freedom of the Digital Nomad?

Abstract

This paper considers the influence of taxation rules on digital nomads' choices to move from one country to another while being an employee. We analyse the constraints and incentives for this geographical freedom from three perspectives. The first two perspectives are Corporate Income Taxation (CIT), Personal Income Taxation (PIT), analysed under Portuguese domestic law and the OECD Model Convention (OECDMC). The third perspective is on the relationship between States, addressing both tax competition and cooperation between States. At the CIT level, we analyse the possibility of a digital nomad having a fixed place of business from where the enterprise develops all or part of its activity, creating a permanent establishment. Regarding this issue, we answer two questions more connected to digital nomads' lifestyles. The first is to know whether coworking spaces, hotels and Airbnb spaces can be considered a fixed place of business. The second one is whether the computer or smartphone of the digital nomad can be considered a fixed place of business. The answer to these dilemmas is not consensual and will always depend on a case-by-case analysis. Regarding the CIT topic, we also address the implications of the digital nomad constantly moving with the obligations under BEPS Action 13 and the possible implications under Pillar 2. Legal obligations derived from the CbCR require to indicate the number of employees allocated to a specific jurisdiction. Because of the implementation of Pillar 2 in the EU, it will be determinant to know in which jurisdiction an employee is carrying out activities for an MNE Group. At the PIT level, we analyse the issue from the perspective of the current wording of Articles 15 and 4 of the OECDMC, focusing on the amplification of taxation conflicts provided by the characteristics of digital nomads. Regarding the issue of tax competition, we address the so-called "digital nomads visas" and the influence of tax measures associated with it, stressing that this is not the sole factor influencing digital nomads' mobility. However, it has an actual weight on it. Concerning tax cooperation between States in the information exchange field, we point to the consequences deriving from the fact that the Common Reporting Standard is indiscriminate in scope and includes countries reported for human rights violating practices and with a high rate of corruption which may lead to people who have fled those countries and become digital nomads, seeing their foreign bank account details disclosed in those countries. In conclusion, the freedom of digital nomads to work remotely anywhere is always limited because their employer must assess the tax risks associated with such a move. Several States may also dispute their income, whether or not they are considered a tax resident there. At the same time, each State has its own 'siren song', with its tax attractions specially designed for remote workers. More than for any ordinary citizen, the tax issue will always have to be given much thought so that it can be a form of liberation rather than a prison of obligations wherever they go.

Keywords: remote working, permanent establishment, tax competition, tax cooperation, pillar 2

JEL Classification: K33, K34