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Can Sharing Be Taxed? Diane M Boston College Law School Digital Commons @ Boston College Law School Boston College Law School Faculty Papers February 2015 Can Sharing Be Taxed? Diane M. Ring Boston College Law School, [email protected] Shu-Yi Oei Tulane University Law School, [email protected] Follow this and additional works at: https://lawdigitalcommons.bc.edu/lsfp Part of the Consumer Protection Law Commons, Internet Law Commons, and the Tax Law Commons Recommended Citation Diane M. Ring and Shu-Yi Oei. "Can Sharing Be Taxed?." (2015). This Article is brought to you for free and open access by Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law School Faculty Papers by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. SYO & DMR Draft 2/25/15. In progress. Please email the authors for most updated version. CAN SHARING BE TAXED? Shu-Yi Oei* & Diane M. Ring** ABSTRACT The past few years have seen the rise of a new model of production and consumption of goods and services, often referred to as the “sharing economy.” Fueled by startups such as Uber and Airbnb, sharing enables individuals to obtain rides, accommodations, and other goods and services from peers via the Internet or mobile application in exchange for payment. The rise of sharing has raised questions about how it should be regulated, including whether existing laws and regulations can and should be enforced in this new sector or whether new ones are needed. In this Article, we explore those questions in the context of taxation. We argue that, contrary to the claims of some commentators, the application of substantive tax law to sharing is mostly (though not completely) clear, because current law generally contains the concepts and categories necessary to tax sharing. However, tax enforcement and compliance may present challenges, as a result of two distinctive features of sharing. First, some sharing businesses tend to opportunistically pick the more favorable regulatory interpretation if there is ambiguity regarding which rule applies or whether a rule applies. This leads to compliance and enforcement gaps. Second, the “microbusiness” nature of sharing raises unique compliance and enforcement concerns. We suggest strategies for addressing these dual challenges, including lower information reporting thresholds, safe harbors and advance rulings to simplify tax reporting, and targeted enforcement efforts. * Hoffman F. Fuller Associate Professor of Law, Tulane Law School. ** Professor of Law & The Thomas F. Carney Distinguished Scholar, Boston College Law School. Electronic copy available at: http://ssrn.com/abstract=2570584 2 CAN SHARING BE TAXED? [26-Feb-15 TABLE OF CONTENTS Abstract ................................................................................................................... 1 Table of Contents .................................................................................................... 2 Introduction ............................................................................................................. 3 I. The Sharing Economy ........................................................................................ 8 A. Vehicle Ridesharing .................................................................................... 10 B. Peer-to-Peer Lodging and Accommodation ................................................ 15 C. Other Online Peer-to-Peer Marketplaces for Sharing ................................. 16 II. Tax Issues in the Sharing Economy ................................................................... 17 A. Income Taxation of Peer-to-Peer Ride Services ......................................... 18 B. Income Taxation of Home Sharing ............................................................. 21 C. Self-Employment Taxes and Local Occupancy Taxes ............................... 27 III. Tax Compliance and Enforcement Challenges in the Sharing Sector: Opportunism and Microbusiness ..................................................................... 31 A. Tax Opportunism: The Information Reporting Example ............................ 32 B. Other Examples of Tax Opportunism ......................................................... 44 C. The New Microbusiness Economy ............................................................. 53 IV. Tax Enforcement Strategies for Sharing and Beyond ....................................... 56 A. Short-Term Strategies for Managing Sharing’s Challenges ....................... 57 B. Medium- to Long-term Approaches ............................................................ 60 C. Beyond Sharing ........................................................................................... 63 Conclusion .............................................................................................................. 65 Electronic copy available at: http://ssrn.com/abstract=2570584 26-Feb-15] CAN SHARING BE TAXED? 3 INTRODUCTION The past few years have seen the rise of a new mode of production and consumption of goods and services. In this so-called “sharing economy,” startups such as Uber, Airbnb, and TaskRabbit enable consumers to summon rides, rent accommodations, or hire help from peers via the internet or a mobile app, in exchange for payment.1 On the supply side, these models enable owners of homes, apartments or vehicles, or those who possess certain skills (such as house painting, home organization, or dogsitting) to monetize those assets or skills.2 The technological platforms employed by these startups enable individual producers and consumers to transact with each other with unprecedented ease.3 Also known as “collaborative consumption,” the “peer-to-peer economy” or “peer-to-peer consumption,” a broad range of commentators suggest that the sharing economy is transforming the way people consume and supply goods and services, such as transportation, accommodations, and task help.4 Commentators note that sharing arrangements have the potential to significantly affect traditional industries such as taxicabs, limousine services, and the hotel industry.5 As such, the sharing economy 1 See generally UBER, https://www.uber.com, AIRBNB, https://www.airbnb.com, TASKRABBIT, https://www.taskrabbit.com. 2 THE PEOPLE WHO SHARE, https://web.archive.org/web/20140318160538/http://www.thepeoplewhoshare.com/blog/w hat-is-the-sharing-economy/ (describing the sharing economy as “the shared creation, production, distribution, trade and consumption of goods and services by different people and organisations.”); The Rise of the Sharing Economy, THE ECONOMIST, Mar. 9, 2013 (print edition) available at http://www.economist.com/news/leaders/21573104-internet- everything-hire-rise-sharing-economy. 3 See sources cited note 2. 4 See, e.g., Pricewaterhouse Coopers, “The sharing economy: how will it disrupt your business?” (August 2014), http://pwc.blogs.com/files/sharing-economy-final_0814.pptx (estimating that “[f]ive key sharing sectors (P2P finance, online staffing, P2P accommodation, car sharing and music/video streaming) have the potential to increase global revenues from around $15 billion now to around $335 billion by 2025” and warning that “[i]ncumbents need to see disruption coming from an expansion of sharing and develop effective strategies to respond, whether by acquisition, partnership or launching their own sharing services.”); NPR Special Series: The Sharing Economy: A Shift Away From Ownership, http://www.npr.org/series/244583579/the-sharing-economy-a-shift- away-from-ownership (exploring different aspects of the sharing economy). We note that the popular press has, in some sense, been ahead of scholars in examining the sharing economy, interviewing its participants, and commenting on its development. 5 See, e.g., Georgios Zervas, Davide Proserpio & John Byers, The Rise of the Sharing Economy: Estimating the Impact of Airbnb on the Hotel Industry (Feb. 2014), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2366898. Electronic copy available at: http://ssrn.com/abstract=2570584 4 CAN SHARING BE TAXED? [26-Feb-15 raises important legal and regulatory issues, including questions of whether and how the new startups should be regulated and questions about the appropriate relationship between regulation and innovation.6 One set of emerging questions concerns whether existing laws and regulations are adequate and should be enforced in the sharing sector or whether new laws and regulations are needed.7 These questions have taken on particular urgency because of the perception that sharing economy businesses often ignore the law, choosing to lobby and negotiate with regulators only after the fact.8 Such questions have permeated the tax field as well.9 Some commentators claim that new sharing economy earners10 do 6 See, e.g., Christopher Koopman et al, The Sharing Economy and Consumer Protection Regulation: The Case for Policy Change (Dec. 8, 2014), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2535345; Stephen Miller, First Principles for Regulating the Sharing Economy (Feb. 20, 2015), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2568016; Stephen Miller, Transferable Sharing Rights: A Theoretical Model for Regulating Airbnb and the Short-Term Rental Market (Oct. 24, 2014), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2514178; Sofia Ranchordas, Does Sharing Mean Caring? Regulating Innovation in the Sharing Economy (forthcoming, Minnesota
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