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The Limits of the International Tax Regime As a Commitment Projector

Arthur J. Cockfield, (Queen's University)

Abstract: The paper examines how transaction cost approaches (as developed by North and Williamson) can inform international tax law and policy discussions. The international tax regime evolved institutions and institutional arrangements to address transaction costs such as the risk that two countries might doubly tax the same cross-border business profits. It mainly sought to reduce this risk by serving as a ‘commitment projector’ that enables governments to make credible political promises to taxpayers, other members of the public and other governments that they will not overtax these cross-border profits. As a result of these political commitments, taxpayers do not need to incur transaction costs they would otherwise have to sustain to identify and protect their global tax liabilities. In other areas, however, the international tax regime does not facilitate credible commitments. First, the international tax regime does not promote credible political promises to effectively address the growing policy concern of undertaxation whereby, as a result of tax planning, cross-border profits are frequently never taxed by countries with high tax rates. Second, because the international tax regime is not constituted by any binding supranational institutions, governments are afforded opportunities for unilateralism (such as the 2010 U.S. proposal to create a global tax reporting system via the Foreign Account Tax Compliance Act) that subverts credible commitments and raises transaction costs for economic participants.


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