Everybody Wants to Rule the Tax World

Robert Goulder

It’s official: The turf war is on.

That’s the takeaway from the report on international taxation from U.N. Secretary-General António Guterres, released August 8.¹ The report was prepared in response to a resolution approved by the U.N. General Assembly last year.² Curiously, the report is styled as an “advance unedited version,” suggesting that it’s something other than the definitive statement on the U.N.’s plan to rule the tax world.

What can the U.N. offer in the realm of global tax harmonization that the OECD isn’t already providing? Well, there’s the matter of inclusiveness. Beyond that, not much comes to mind. Guterres asks us to believe the U.N. would be more effective than the OECD. This article argues that inclusiveness and effectiveness are different things. We should not conflate one with the other.

The U.N. is made up of 193 member states, guided by the foundational principle of sovereign equality. The concept is taken to mean that each nation is treated equally, in every relevant respect. The OECD claims 38 members, with admission based on selective criteria. No nation can join by right; it must be invited. To that end, it helps to be a market-oriented democracy with ample GDP. No OECD member state is a least-developed country, in the parlance of the U.N. No African nation is an OECD member.³

The OECD/G-20 inclusive framework now boasts 143 participants.⁴ As Guterres points out, only 126 of them are also U.N. members. That leaves 67 U.N. members outside the deliberative process. OK, there’s a gap there, which has been acknowledged many times over. The OECD is a rich man’s club, whereas the U.N. is an everyman’s club. That’s no secret.

Why the dismissive tone? For starters, let’s acknowledge that sovereign equality is highly contextual. Consider the composition of the U.N. Security Council, on which just five nations enjoy permanent seats (with veto power), 10 others hold rotating seats (without veto power), and the rest of humanity has no seat. Where’s the inclusiveness in that?

The implication is that sovereign equality is fine for the mundane disciplines of taxation and economics, but not for the important stuff — armies, nukes, and wars — for which inclusiveness takes a back seat to size and power. That same practicality explains why the OECD looks like it does. In short, the U.N. cherry-picks where its efforts are inclusive and where they’re not. Guterres is correct that not every nation is represented in the inclusive framework. So what? Let me know when the U.N. Security Council has 143 members.

As for the U.N. report, its stated objective is to explore ways to enhance the United Nations’ role as standard-setter in the field of international taxation. The executive summary reads as follows, in part:

The report analyses existing arrangements in international tax cooperation, identifies additional options to make such cooperation fully inclusive and more effective, and outlines potential next steps. . . . It finds that enhancing the UN role in tax-norm shaping and rule setting, fully taking into account existing multilateral and international arrangements, appears the most viable path for making international tax cooperation fully inclusive and more effective. [Emphasis added.]

The bit that grabs your attention is where Guterres identifies the U.N. as the “most viable path” forward. How accurate is that statement? Do we really believe the base erosion and profit-shifting project would have stood a better chance of enduring success if the U.N. had run the show? Ditto for the two-pillar solution, which is still running its course. I don’t doubt that those initiatives would have looked different, but would they have proven more effective? I’m still waiting to be convinced.⁵

Make no mistake: This is Guterres saying the OECD isn’t inclusive enough and the U.N. can do better. This is how turf wars are waged. The U.N. report lays a predicate for future conquest. Should pillar 1 fail for any reason, the United Nations is poised to swoop in and take charge of international taxation.

One concern with this turf war is that the U.N. was never asked to join the party. Recall that the G-20 specifically instructed the OECD to coordinate the BEPS project. Why didn’t the G-20 delegate the task to the U.N. in the first place? We know the answer: The G-20 could anticipate how that would have worked out and wanted nothing to do with it. The BEPS project has always been about incremental change to the international consensus. The G-20 prefers evolution to revolution, and there’s nothing to suggest its tastes have changed.

Another concern is that the United Nations Tax Committee isn’t structured as an intergovernmental body, and it needs to be if it wants to accomplish great things.⁶

The Three Options

The U.N. report identifies three options for advancing the ball. The first option calls for a legally binding treaty on taxation, described as a “standard multilateral convention.”⁷ It would be regulatory in nature, creating rules and obligations that place limits on national taxing rights. The concept is for one all-consuming tax treaty to rule them all. Bilateral tax treaties wouldn’t go away, but they’d be superseded by the envisioned master agreement, which could be supplemented as needed by multilateral protocols.

Procedurally, this first option resembles the OECD’s previous multilateral instrument and the forthcoming multilateral convention (MLC). The details would differ, of course. The MLC has a focused purpose in that it seeks to implement pillar 1 and goes no further. The option described in the U.N. report would be more pervasive in scope. It would include monitoring mechanisms to ensure compliance, as well as a dispute resolution function to resolve alleged violations.

In a moment of supreme understatement, the report acknowledges that the viability of a comprehensive MLC would hinge on broad political agreement across a wide range of governments and stakeholders.⁸ Gosh, you don’t say!

The second option calls for a legally binding framework convention on international tax cooperation. It differs from the first option in that it is “constitutive in nature.”⁹ The language is purposefully esoteric; Guterres describes a framework for establishing “an overall system of international tax governance.”¹⁰ That sounds every bit like the World Trade Organization, but for taxation.

Guterres notes that comparable framework conventions have been negotiated to address environmental protections,¹¹ public health,¹² and human rights.¹³ Those comparisons are intended to inspire confidence.¹⁴ I’m not sure they will settle taxpayers’ nerves once they realize what’s being discussed. If you think members of Congress get political mileage out of bashing the IRS, can you imagine the unbridled joy they would take in beating up on the global tax police?

Why is there a treaty-based international organization for trade, but not for taxation? For the same reason that the European Union has a common trade policy but no common income tax policy. VAT notwithstanding, direct taxation is too sensitive for collective endeavors — even among close neighbors with a continental alliance. To imagine this option is going anywhere is wishful thinking.

The third option calls for a much looser framework for the development of a multilateral agenda. According to the report, this option would establish “principles or modalities of international tax cooperation”¹⁵ without a binding legal commitment on the part of national governments. That sounds like an idea shop, where any proposals you don’t like can be ignored with impunity.

It’s hard to see how any multilateral effort that lacks binding obligations will accomplish much. I can’t imagine what the group’s deliverables would consist of, or how progress would be measured. We came, we talked, we disagreed. The tax world needs more.

Of the identified options, the second goes too far, the third doesn’t go far enough, and the first isn’t too different from what the inclusive framework is already doing — apart from replacing OECD oversight with U.N. oversight.

The sensible question to ask is whether a U.N.-brokered MLC would be any more effective than the OECD-brokered MLC. I think not, and here’s why. Allow me to suggest that the fate of any MLC (regardless of the proponent) is governed by a natural law of inverse proportionality: The more it tries to alter the status quo, the less likely it is to succeed.

Accordingly, any U.N.-endorsed version of the MLC is likely to sink under its own density. The OECD-backed MLC will be unveiled in a few weeks. To the extent it has any hope of success, that’s because of its relatively modest ambitions.¹⁶

Most Viable Path to Where?

On the face of it, the idea that the U.N. should be more heavily involved in international tax harmonization doesn’t seem crazy. It’s a prestigious body that exerts much influence in other areas. If you were starting from scratch, you might reasonably think it would be a suitable forum for hosting global dialogues on how the profits of multinational enterprises should be taxed. Indeed, the world tried something similar before, a century ago, under the auspices of the League of Nations.

That said, anybody who’s been paying attention knows the real action in the tax world occurs at the OECD — and it’s been that way for decades. The influence of the OECD is everywhere. Consider its model tax convention, transfer pricing guidelines, and guidelines on VAT and goods and services taxes. Consider its global forum on transparency and exchange of information. Perhaps most notably, consider the OECD’s role in the original BEPS project and its ongoing work on the proposed two-pillar solution (BEPS version 2.0).

In studying the new U.N. report, you sense that Guterres and his inner circle must look at the OECD’s body of work with a hint of envy — as if to ask themselves, “Hey, why didn’t we spend the last 40 years doing all of that?” Indeed, why didn’t they?

Over the years the U.N. Tax Committee has delivered some impressive material, but its ability to undertake large-scale projects is hindered by its own limitations. The committee consists of 25 people acting in their individual capacity, not as representatives of a national government. That hampers it in the clout department. The committee can develop brilliant tax reform proposals, but that says nothing about whether any government in the world endorses them.

The composition of the committee is diverse.¹⁷ There’s a balance of tax experts from G-20 nations and other jurisdictions. It lacks a member from the United States, though it has participants from Russia and China. But again, those country affiliations don’t mean much because the committee members serve in an individual capacity. If there were a U.S. tax expert serving on the committee, they wouldn’t represent the Treasury Department or any other instrument of the federal government. That’s a shortcoming that needs to be corrected.

Before the United Nations can rule the tax world, it must establish and empower a suitable intergovernmental deliberative body — one that would end up looking very much like the OECD/G-20 inclusive framework. That seems like a lot of work to duplicate something that already exists.