Taxpayers in International Law: International Minimum Standards for the Protection of Taxpayers' Rights (International Tax Law)

This ground-breaking book brings clarity to the dynamically developing field of international tax law. It empowers individuals and corporate taxpayers to navigate their way around and helps tax authorities take taxpayers' rights into account from the beginning. The book is the result of several years of research conducted with the support of the International Law Association. Taxpayers in International Law puts taxpayers' rights on the global international tax agenda as the necessary counterweight and complement to Base Erosion and Profit Shifting (BEPS). Importantly, it pleads for a global minimum standard of legal protection of the fundamental rights of taxpayers and extracts the content of such rights from relevant constitutional principles of many countries around the world. The book is structured in 3 parts: Part I focusses on the legal sources and on the relations between taxation and international human rights law. Part II identifies general principles and specific taxpayers' rights, groups them into 3 categories (procedural, related to sanctions, and substantive), and analyses the different implications that arise in each of them. Part III features concrete proposals for establishing a global framework for the protection of taxpayers' rights, including guidelines for tax authorities. The book is a unique instrument for the daily work of practitioners and international tax scholars interested in securing the protection of taxpayer's fundamental rights, as well as for those involved in tax collection worldwide. Taxpayers can refer to the book to find out which rulings and concepts can help them enforce their rights; tax authorities and judges can use the book to verify which rights have to be respected. Preface 6 Brief Contents 10 Contents 12 Table of Abbreviations 32 Table of Cases and Legislation 36 Introduction: The Internationalisation of Tax Law and the Importance of Taxpayers’ Rights 78 PART I: TAXATION AND INTERNATIONAL HUMAN RIGHTS LAW 82 1. Sources of International (Tax) Law 84 1.1. Introduction 84 1.2. International Conventions 84 1.3. Customary International Law 88 1.4. General Principles 99 1.5. Subsidiary Means for the Determination of Rules of Law 101 1.6. Soft Law 105 2. The Relationship between National and International Law 108 2.1. Monism vs Dualism 108 2.2. Direct Effect 110 2.3. The Relationship between National and International Law in the Different Regions 120 3. Possible Approaches to Human Rights and Taxation 147 3.1. Two Groups of Taxpayers’ Rights: Individual Rights and ‘Collective Rights’ 147 3.2. The Individual Rights Vision 149 3.3. The ‘Collective Rights’ Vision 151 3.4. The Approach of Our Committee to Individual and Collective Rights 155 3.5. The Scope of Protection of Fundamental Human Rights in Tax Matters from the Perspective of Public International Law 156 PART II: HUMAN RIGHTS IN TAX MATTERS 158 4. General Principles Protecting Taxpayers’ Rights 160 4.1. Rule of Law 160 4.2. Proportionality 191 4.3. Anti-Tax Avoidance and Evasion Measures Limiting Taxpayers’ Rights 208 4.4. Fairness 230 5. Special Features of Human Rights in Taxation 248 5.1. The Emergence of Taxpayer Bills of Rights 248 5.2. Intermediaries 265 5.3. Human Rights of Legal Persons 273 5.4. Classification of Human Rights in Tax Matters 280 6. The Procedural Rights 283 6.1. Access to Documents (Habeas Data) 284 6.2. Right to Be Heard 303 6.3. Right to Judicial Protection 313 6.4. Equivalent Measures for Protection of Taxpayers’ Rights, Notably Ombudspersons 369 6.5. Conclusions on Procedural Rights 381 7. Taxpayers’ Rights Related to Sanctions 388 7.1. General 388 7.2. Criminal and Administrative Contraventions 389 7.3. Different Regions 392 7.4. Conclusions on Sanctions 419 8. Substantive Rights 422 8.1. Equality 422 8.2. Data Protection Rights 458 8.3. Rights and Obligations of Professionals and Intermediaries 505 8.4. Taxpayers’ Property Rights 522 PART III: AN INTERNATIONAL TAX REGIME CONTAINING MINIMUM STANDARDS FOR THE PROTECTION OF TAXPAYERS’ RIGHTS 546 9. The Emergence of an International Tax Regime 548 9.1. Nexus Requirement as Customary International Law 548 9.2. A Convention-based Regime 549 9.3. The Interaction of International Conventions and Domestic Law 551 9.4. The Importance of Soft Law in International Taxation – Impact of the OECD 552 9.5. The International Financial Reporting Standards 556 9.6. ‘Soft Law’ in Customs and Value Added Tax Law of the EU 557 9.7. Measures against Harmful Tax Practices 558 9.8. Investment Law and Customary Taxpayers’ Rights: The Prohibition of Indirect Expropriation, the National Treatment and Fair and Equitable Treatment Standards 561 10. International Minimum Standards for the Protection of Taxpayers’ Rights 567 10.1. The Need for Global Minimum Standards 567 10.2. The General Principles of Taxpayers’ Rights Protection 569 10.3. Procedural Rights 572 10.4. Taxpayers’ Rights Related to Sanctions 574 10.5. Substantive Rights 575 10.6. Conclusion 581 11. Proposed International Instruments 582 11.1. Hard and Soft Law Approach 582 11.2. The International Charter of Taxpayers’ Fundamental Rights 585 11.3. Guidelines for Tax Authorities 594 List of Countries’ Official Court Names 596 Bibliography 600 Index 618 "This ground-breaking book brings clarity to the dynamically developing field of international tax law. It empowers individuals and corporate taxpayers to navigate their way around and helps tax authorities take taxpayers' rights into account from the beginning. The book is the result of several years of research conducted with the support of the International Law Association. Taxpayers in International Law puts taxpayers' rights on the global international tax agenda as the necessary counterweight and complement to Base Erosion and Profit Shifting (BEPS). Importantly, it pleads for a global minimum standard of legal protection of the fundamental rights of taxpayers and extracts the content of such rights from relevant constitutional principles of many countries around the world. The book is structured in 3 parts: Part I focusses on the legal sources and on the relations between taxation and international human rights law. Part II identifies general principles and specific taxpayers' rights, groups them into 3 categories (procedural, related to sanctions, and substantive), and analyses the different implications that arise in each of them. Part III features concrete proposals for establishing a global framework for the protection of taxpayers' rights, including guidelines for tax authorities. The book is a unique instrument for the daily work of practitioners and international tax scholars interested in securing the protection of taxpayer's fundamental rights, as well as for those involved in tax collection worldwide. Taxpayers can refer to the book to find out which rulings and concepts can help them enforce their rights; tax authorities and judges can use the book to verify which rights have to be respected"-- Provided by publisher.