Alesco and Mark Resources: Cross-Border Tax Arbitrage, Economic Reality, and Anti-Avoidance Rules in New Zealand and Canada

<p>This essay compares the role given to the concept of economic reality in New Zealand and Canadian cross-border tax arbitrage decisions, particularly Alesco and Mark Resources. Alesco and Mark Resources both address the problem of drawing the line between acceptable tax mitigation and unacceptable avoidance, and adopt economic substance as a key indicator of where this line lies. This essay considers how the concept of economic reality pervades these cases and evaluates the influence of legislative and judicial context to the significance afforded to the concept of economic reality in the two decisions, as well as reviewing how the economic realities jurisprudence has evolved following these cases.</p>

Alesco and Mark Resources: Cross-Border Tax Arbitrage, Economic Reality, and Anti-Avoidance Rules in New Zealand and Canada

<p>This essay compares the role given to the concept of economic reality in New Zealand and Canadian cross-border tax arbitrage decisions, particularly Alesco and Mark Resources. Alesco and Mark Resources both address the problem of drawing the line between acceptable tax mitigation and unacceptable avoidance, and adopt economic substance as a key indicator of where this line lies. This essay considers how the concept of economic reality pervades these cases and evaluates the influence of legislative and judicial context to the significance afforded to the concept of economic reality in the two decisions, as well as reviewing how the economic realities jurisprudence has evolved following these cases.</p>

Tax Sovereignty and Investor Protection: Why the Proposed Global Minimum Tax Is not the Final Frontier for Corporate Tax Arbitrage

Over the past decade, international tax governance has evolved with bewildering speed in response to the challenges of digitalization and widespread corporate tax avoidance. Since the launch of the Group of 20 (G20)-Organisation for Economic Co-operation and Development (OECD) base erosion and profit shifting (BEPS) initiative in 2012, 135 countries and 14 international organizations have joined the BEPS Inclusive Framework, committing to implement new global standards on corporate tax, which has already been lauded as a revolution in the architecture of international tax law and policy. Even further expanding the scope of the OECD’s work on international taxation in a landmark announcement in March 2021, the U.S. administration further proposed imposing a global minimum corporate tax at a rate of 21% to be implemented through an international agreement by mid-2021. If the new OECD initiative is agreed, will the plan to implement a minimum corporate tax be fully implemented by G20 members, and if so, will it do enough to address the tax challenges of digitalization embodied in corporate tax arbitrage? Although the evidence suggests legislative and public policy compliance is likely to be high among G20 members, this article argues the minimum tax initiative is unlikely to go far enough to address deficiencies in global tax dispute resolution, which are extremely germane to the success of the proposed minimum tax. As explained in this article, U.S. leaders and global policymakers must enhance the mutual agreement procedure (MAP), a cornerstone of tax dispute resolution, given a growing body of tax litigation in investment law that threatens the implementation of BEPS 2.0. To do so, global policymakers must also reconcile the conflict of norms between tax sovereignty and investor protection contained in the investor-state dispute settlement (ISDS) regime. Only by addressing the conflict between the principles of tax sovereignty and investor protection can they prevent a tidal wave of investor disputes that will challenge the implementation of the minimum tax through national tax laws.

Key Roles of Crypto-Exchanges in Generating Arbitrage Opportunities

The evolving crypto-currency market is seen as dynamic, segmented, and inefficient, coupled with a lack of regulatory oversight, which together becomes conducive to observing the arbitrage. In this context, a crypto-network is designed using bid/ask data among 20 crypto-exchanges over a 2-year period. The graph theory technique is employed to describe the network and, more importantly, to determine the key roles of crypto-exchanges in generating arbitrage opportunities by estimating relevant network centrality measures. Based on the proposed arbitrage ratio, Gatecoin, Coinfloor, and Bitsane are estimated as the best exchanges to initiate arbitrage, while EXMO and DSX are the best places to close it. Furthermore, by means of canonical correlation analysis, we revealed that higher volatility and the decreasing price of dominating crypto-currencies and CRIX index signal bring about a more likely arbitrage appearance in the market. The findings of research include pre-tax and after-tax arbitrage opportunities.

Sophisticated Financial Engineering and Tax Arbitrage

This chapter delves into the inner sanctum of corporate organization in order to find evidence of rise or decline in the use of techniques of tax arbitrage by the corporate sector within the EU region. We follow then with an analysis of the use of sophisticated financial instruments in tax mitigation techniques in the EU to assess the impact of finance-oriented tax mitigation techniques. Our conclusion is not positive. It appears to us that in comparison with the US (and possibly China), the European fiscal regime failed to address a core political issue. These political conditions encourage the use of those diverging rules and regulations one against the other and affect jurisdictional arbitrage with the overall aim of tax mitigation. Europe is emerging as the playground for international corporations’ tax arbitrage and financial techniques of tax mitigation.

Group subsidiaries, tax minimization and offshore financial centres: Mapping organizational structures to establish the ‘in-betweener’ advantage

International business and public policy research have examined the techniques that multinational enterprises (MNEs) use to shift revenues to subsidiaries in offshore financial centres (OFCs) in order to minimize tax liability and arbitrage for their advantage. While study of such tax arbitrage strategies has looked to geographical locations and legal dimensions to better understand these strategies, it has ignored the structural and organizational relationship between MNEs and their subsidiaries. We define two distinct types of OFC-based corporate entities based on their location among and apparent control over other MNE affiliates: ‘stand-alone’ OFCs at the end of a chain of MNE subsidiaries; and ‘in-betweener’ OFCs with equity control over further entities and hence apparent flexibility to redirect profits to other MNE subsidiaries further down the chain. We hypothesize that when MNEs have in-betweener OFCs controlling a substantial share of overall MNE profits, this indicates greater MNE interest in aggressive tax planning (ATP). We then evaluate empirical support for our claims based on an ‘equity mapping’ approach identifying stand-alone and in-betweener OFCs in 100 of the largest MNEs operating globally. This study demonstrates that a key factor determining tax arbitrage is not the amount of value registered on OFC subsidiaries’ balance sheets, but rather the portion of the group’s operating revenues and net income controlled by OFC subsidiaries. National taxing authorities could benefit from tracking in-betweener OFC locations and behaviour to counter ATP strategies, decrease sovereign arbitrage, and increase MNE tax revenue.

Debt reduction: Indicative factors in classification as a donation for income tax purposes

Debt reduction in business is recognised for the economic relief afforded to the debtor involved. The new debt reduction regime was introduced in the Income Tax Act (section 19 and paragraph 12A of the Eighth Schedule) with the aim of minimising the tax impact so as not to negate the economic benefit. The new regime introduced an exclusion for debt reduced by way of a donation and uncertainty exists on instances where this exclusion would apply. This article considered four broad categories of factors indicative in the classification of a debt reduction as a donation (inadequate consideration; gratuitous waiver; intent and motive; classification as connected persons) and concluded with the formulation of such factors. The classification as connected persons is regarded as the most indicative of a debt reduction being classified as a donation, which could result in tax arbitrage if the creditor and debtor are taxed at different rates on the taxable income result of the debt reduction.