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Will Tax Havens Survive in the New International Legal Environment? A View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by RMIT Research Repository Will Tax Havens Survive in the New International Legal Environment? A thesis submitted in fulfilment for the degree of Doctor of Philosophy John Andrew McLaren LL.B. (Tas), MBA (Mon), LL.M (Mon) Graduate School of Business and Law College of Business RMIT University December 2010 DECLARATION I certify that: Except where due acknowledgement has been made, this thesis is mine alone. The work has not been submitted previously, in whole or part, to qualify for any other academic award. The content of the thesis is the result of work that has been carried out since the official commencement date of the approval of the research programme. John Andrew McLaren ii ACKNOWLEDGEMENTS The author wishes to thank Professor Margaret Jackson, the principal supervisor, for her wise counsel, diligence, patience and forbearance. In particular, Professor Jackson has provided encouragement, support and mentoring all needed to complete this thesis. I would also like to acknowledge the support and encouragement provided to me by Dr Tom Rowles, Professor Clive Morley, David Jones and John Passant. I acknowledge the professional assistance provided to me by Barbara Stubbs from Rockhampton for her work in standardizing the headings throughout the thesis, compiling the table of contents, the production of the bibliography, and general editorial support. The following chapters of the thesis have been published as follows: Chapter seven was published as: John McLaren, ‘The Distinction between Tax Avoidance and Tax Evasion has become blurred in Australia: Why has it happened? (2008) 3(2) Journal of the Australasian Tax Teachers Association 141 . Chapter six was published as: John McLaren, ‘The OECD’s “harmful tax competition” project: is it international tax law? (2009) 24 Australian Tax Forum 423. Chapter five was published as: John McLaren, ‘Should the International Income of an Australian Resident be Taxed on a Worldwide or Territorial Basis? (2009) 4(1) Journal of the Australasian Tax Teachers Association 71 . Chapter eight was published as: John Mclaren, ‘Exchange of Information Agreements with Tax Havens: How Will this Affect the Rights of Non- iii Resident Taxpayers and Investors?’ (2010) 5(1) Journal of the Australasian Tax Teachers Association 117. iv TABLE OF CONTENTS Declaration ............................................................................................................... ii Acknowledgements ................................................................................................. iii Abstract .................................................................................................................. vii Chapter 1 Introduction to the Thesis .................................................................. 1 1.1 Introduction ............................................................................................ 1 1.2 What is a Tax Haven? ............................................................................. 4 1.3 Australia’s Approach to Tax Havens ....................................................... 6 1.4 Research Problem ................................................................................... 7 1.5 Research questions .................................................................................. 8 1.6 Outline of Research Methodology and Legal Theory ............................. 16 1.7 Scope of the research ............................................................................ 17 1.8 Structure of the Thesis .......................................................................... 18 Chapter 2 History and Theory of Taxation ....................................................... 21 2.1 Introduction .......................................................................................... 21 2.2 The History of Taxation ........................................................................ 23 2.3 Adam Smith and John Stuart Mill - Theory of a Tax System ................. 29 2.4 Comprehensive or Optimal Tax System ................................................ 34 2.5 Equity ................................................................................................... 36 2.6 Efficiency – Economic Neutrality ......................................................... 51 2.7 The Need for Simplicity in a Tax System .............................................. 54 2.8 Conclusion ............................................................................................ 62 Chapter 3 The History and Structure of Taxation in Australia .......................... 64 3.1 Introduction .......................................................................................... 64 3.2 Early History of Taxation in the Colonies.............................................. 65 3.3 Commonwealth Taxation ...................................................................... 67 3.4 Tax Minimisation in Australia ............................................................... 70 3.5 Tax Reform Proposals ........................................................................... 71 Chapter 4 The History and Theory of International Taxation ........................... 73 4.1 Introduction .......................................................................................... 73 4.2 Regulation of International Taxation – Double Taxation Agreements (DTAs) .................................................................................................. 76 4.3 Permanent Establishment – Active and Passive Income Distinction 79 4.4 Rationale for a Worldwide Tax System ................................................. 81 4.5 Other International Taxation Issues ....................................................... 83 4.6 Conclusion ............................................................................................ 85 Chapter 5 The OECD’s ‘Harmful Tax Competition’ Project: Is it International Tax Law? ........................................................................................ 87 5.1 Introduction .......................................................................................... 87 5.2 The OECD’s Project to Eliminate Harmful Tax Competition ................ 90 5.3 What is International Law? ................................................................... 98 5.4 Is Soft Law Desirable? ........................................................................ 119 5.5 The OECD’s Project against Harmful Tax Competition: Are Tax Havens Complying because it is Law? ............................................................. 122 5.6 Conclusion .......................................................................................... 128 v Chapter 6 Should International Income of an Australian Resident be Taxed on a Worldwide or Territorial Basis? ..................................................... 131 6.1 Introduction ........................................................................................ 131 6.2 Worldwide System - Residence Taxation ............................................ 141 6.3 Territorial System - Source Taxation ................................................... 153 6.4 Developments in Attracting Capital and Labour in Australia and New Zealand ............................................................................................... 160 6.5 Threats to the Tax Base ....................................................................... 166 6.6 Conclusion .......................................................................................... 168 Chapter 7 The Distinction Between Tax Avoidance and Tax Evasion has Become Blurred in Australia: Why Has it Happened? .................... 170 7.1 Introduction ........................................................................................ 170 7.2 The Australian Approach to ‘Tax Avoidance and Tax Evasion’ .......... 172 7.3 The International Approach to the Distinction between ‘Tax Avoidance and Tax Evasion’ ................................................................................ 181 7.4 An Example of Blurring: The Law to ‘Deter the Promotion of Tax Schemes’ ............................................................................................. 186 7.5 A Further Example of Blurring: The AML/CTF Act .......................... 194 7.6 Implications for the ‘Rule of Law’ ...................................................... 200 7.7 Conclusion .......................................................................................... 203 Chapter 8 Exchange of Information Agreements with Tax Havens: How Will this Affect the Rights of Non-Resident Taxpayers and Investors? .. 204 8.1 Introduction ........................................................................................ 204 8.2 The Rights of the Taxpayer - The Australian Position ......................... 207 8.3 The Rights of the Taxpayer – The International Position ..................... 240 8.4 OECD – Tax Information Exchange Agreements ................................ 247 8.5 Conclusion .......................................................................................... 250 Chapter 9 Will Tax Havens Survive in the New International Legal Environment? ................................................................................ 253 9.1 Introduction ........................................................................................ 253 9.2 The Reasons Why Tax Havens Will Survive ......................................
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