Расширение налогового суверенитета на Интернет-пространство

В статье анализируется распространение налогового суверенитета на интернет-пространство, описываются правовые инструменты, регулирующие налогообложение цифровых компаний и проектов. Цель исследования - проанализировать тенденции распространения налогового суверенитета на Интернет-проекты и компании и найти ответ на вопрос, возможно ли расширить налоговую юрисдикцию государства на Интернет. Используя историко-правовые методы исследования, автор проанализировал работы ученых в области теории права и налогообложения и провел контент-анализ актов Организации экономического сотрудничества и развития (ОЭСР) и налогового законодательства России. Автор приходит к выводу, что многие государства только начали процесс расширения налогового суверенитета на Интернет-пространство. Эффективные налоговые инструменты еще не разработаны, но работа в этом направлении ведется. Автор определяет это направление как одну из глобальных проблем современного права.

Ключевые слова

Налог, налоговый суверенитет, налоговая юрисдикция, налогообложение интернет-компаний, корпоративный цифровой налог.

Получено

01.07.2021

Дата публикации

02.07.2021

Кол-во символов

39054

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ГОСТ	Andreev N. Расширение налогового суверенитета на Интернет-пространство // Law & Digital Technologies – 2021. – Tом 1. – № 1 C. 37-45 [Электронный ресурс]. URL: https://ldt-journal.com/S123456780015734-8-1 (дата обращения: 03.05.2024). DOI: 10.18254/S123456780015734-8
MLA	Andreev, NIkolay "Extending Tax Sovereignty to the Internet Space." Law & Digital Technologies 1.1 (2021):37-45. DOI: 10.18254/S123456780015734-8
APA	Andreev N. (2021). Extending Tax Sovereignty to the Internet Space. Law & Digital Technologies 1(1), pp.37-45 DOI: 10.18254/S123456780015734-8


1	Introduction.
2	For about a decade, states have been trying to extend their tax sovereignty to the Internet space, and there are examples of states direct and indirect attempts to implement such a policy. An example of indirect attempt is represented by the United States actively fighting with the foreign offices of Google and a number of other IT giants, if these offices are used to avoid taxes. In addition, the location of the company's office on the territory of the relevant state allows to better control such a company and influence its user and information policy. Among the most remarkable examples of direct attempts are the introduction of indirect taxes on digital services (also known as the "Google tax" in Russia), corporate digital taxes, and electronic digital representation. At present, the territorial attribute for establishing sovereignty is not the sole or at least not the main characteristic. Increasingly, in order to collect the above taxes, it is proposed to take into account the nationality of users (e.g., to what country a citizen, whose personal data is collected by the Internet service, belongs to), and the use of certain payment systems. For example, the implementation of electronic currency transfers through the Russian payment service "Yandex Money" may indicate a reason to collect taxes from the income of the electronic platform on which the payment is made using this payment service. To understand the specifics of establishing tax sovereignty or tax jurisdiction in relation to the Internet space, it is necessary first to analyze what tax sovereignty is in general. The next logical step should be studying the issue of extending tax sovereignty to the digital environment. The article analyzes the legal structure of tax sovereignty and studies examples of the extension of tax sovereignty to the digital space (electronic digital representation, indirect tax on digital services, and corporate digital tax).
3	The Legal Construction of Sovereignty.
4	Sovereignty is an absolute and permanent state power. Absoluteness in the context of this article should be interpreted as no power exercised above the state (at least from the point of view of jurisprudence). Constancy means that this power is neither interrupted nor can be ceased for a while. The ceased, interrupted power of sovereignty, therefore, cannot be considered. However, we are talking about the origins in the historical perspective. Even in ancient times, there were formally independent states, who had actually lost their sovereignty. As such, the member states of the Athenian Maritime Union paid a tax (foros) to the Attic polis, and obeyed its political decisions. The Roman Republic extended its power to "friendly" states. In other words, the problem of the state independence has existed since ancient times, and was quite closely related to the taxes paid in favor of the actual sovereign. As documented in Russian sources, sovereignty as a supreme power, had practice in collecting taxes. The Chronicle reports on the vocation of the Varangians by the Slovenes, Merei and Krivichi. The latter were ready to submit to the Varangians and pay tribute. The Varangians under the leadership of Oleg, Russian prince in the IX century, extended their power to many tribes, forcibly imposing tribute on them, thus subjugating those tribes: "And many countries of attraction to the Russian land and lay tribute on them" (Chronicle collection, called the Patriarch or Nikon Chronicle by publisher, 9). It is obvious that the main instrument of submission was the payment of tribute. Perhaps, for the medieval compiler of the Chronicle this procedure was a necessary symbol of the sovereignty extension of the Old Russian state to new lands and peoples. Next, we would like to illustrtate that the loss of the ability to collect taxes is considered as a sign of the loss of sovereignty. To explain the tax sovereignty in the domestic legal science, a number of definitions are proposed. Khavanova (2013) understands fiscal (tax) sovereignty as "the legitimate and unlimited right of the state to set taxes". Omelekhina (2014) understands fiscal sovereignty as "the legally unlimited right of the state to demand from its subjects active actions to participate in the formation of the necessary resources". Sadchikov (2016) defines sovereignty as "the exclusive right of the state to independently perform the function of taxation and tax collection within the territory to which its jurisdiction extends". All these authors somehow connect tax sovereignty with law (relatively speaking, the subjective law. Moreover, the content of this right is severely restricted. This is the right only to collect taxes or the right to demand from the population active actions for the formation of the necessary resources (although these actions may not be related to the payment of taxes, which creates some ambiguity in the content of the concept). This can also be the right to impose a tax (interestingly, the right to levy or to bring to tax liability is not mentioned). Such narrowing of the content of tax sovereignty seems to us unjustified. At the very least, this contradicts the very meaning of the term "absolute power". Such power may establish any list of rights that it may exercise, otherwise it will not be absolute. Instead, tax sovereignty should be seen as the foundation on which the state's tax powers are built. If necessary, some elements may be removed, while others be included, and this process will not change the basis of such a legal structure. In our opinion, this suggests that tax sovereignty is the basis of the tax legal personality of the state, the source of its origin. It is important to name the difference in application of the terms. Legal personality initially indicated the possibility of approximately equal status (primarily property) of persons to enter into certain legal relations. In Roman law, where legal scholars used to form the concept of legal personality, much more attention was paid to the relationship of individuals and, to a lesser extent, legal entities. Legal personality was intended to determine the place of an individual or legal entity in communication with a variety of other individuals and legal entities. The Roman state, however, did not have any equivalent subjects in the legal field. In Roman law of the Republican period, the state was defined as a civitas, i.e., a community of citizens, and it would be illogical to contrast citizens with themselves. To designate the state as a subject of private law, the concept of fisk and treasury was introduced. The Roman state was not considered as a legal entity, and the laws, governing transactions made on behalf of the state, were acts of competence of the relevant magistrates. Thus, the legal personality as a legal structure was associated rather with magistrates exercising the authority to conclude civil transactions, and later was extended to the state, without taking into account the peculiarities of its legal status. In addition, the Romans used a special term "imperium" for the public powers of the state. By imperium the Romans understood unlimited, absolute power, having its foundation in itself, that is, it was a power in itself aimed at maintaining the existence of a common cause – "res publicum" and belonging to the Senate. The latter could transfer the imperium to the magistrates for a certain time. In many ways, the imperium served as a prototype of the construction of sovereignty (Andreev 2012). In Modern times, in order to finally separate the power of the German emperor and the European kings, as well as to secure the power over the local feudal lords, the concept of sovereignty arose. The concept of sovereignty is still used today (Andreev 2012). However, purely political needs, for example, the need to define the hierarchy of feudal lords in Europe, led to the consolidation of the same political content. This is seen from Jean Baudin’s definition of sovereignty as a permanent, supreme, independent, unbound by laws, absolute power over citizens and subjects. The emphasis in this definition is on the independence and absoluteness of power. The legal content of this power was practically not taken into account since Boden did not set such a goal (Lazarevskiy 2008). Thus, it can be noted that the legal definition of sovereignty cannot be formulated only from the analysis of the political content. The solution of the problem seems to be in determining the functions of sovereignty as a legal phenomenon. Thus, we can come to the following conclusions: - tax sovereignty should be considered in three aspects; - under the legal aspect of tax sovereignty, it is necessary to understand the basis of the tax legal personality of the state; - the political aspect of tax sovereignty should be understood as the ability and real independence in the state's decision-making in the field of taxation; - the economic aspect of tax sovereignty should be understood as the material ability to ensure the implementation of state actions in the field of taxation; - the combination of all three aspects allows us to talk about the presence of tax sovereignty, while its absence questions state capacity to act freely in regulating tax relations. If there is a legal personality, we can talk about the existence of a legal entity, otherwise there is no legal entity. Sovereignty (especially, tax sovereignty) and tax jurisdiction is a complex phenomenon that has many legal aspects (Palienko 1903). Vinnitskiy (2017) believes that in relation to tax sovereignty, it is necessary to distinguish between material and procedural aspects. The researcher believes that in the conditions of international integration, the prerequisites for the fragmentation of law in space are created, when one tax system seeks to reject the elements of another national tax system. However, the participants of the world community "are aware of the need to limit their own sovereignty". In the context of economic integration within the framework of supranational unions, various concepts of such self-limitation arise. Also, most of these concepts require to distinguish between the territorial limits of tax sovereignty and the scope of tax jurisdiction. Gidirim (2018), for example, draws attention to the fact that jurisdiction is "the competence of states under international law to create domestic legislation". Vinnitskiy (2017) defines jurisdiction as the right to regulate. A comprehensive definition of tax jurisdiction was given in the second revision of the legislation on international relations of the United States: "Jurisdiction is the ability of a state under international law to prescribe and apply a rule of law". Gidirim (2018) distinguishes three types of tax jurisdiction: prescriptive (legislative), judicial and executive. Prescriptive tax jurisdiction includes the right of the state to set binding rules. Judicial jurisdiction is the ability to resolve tax disputes. Executive jurisdiction is the ability to conduct tax investigations and forcibly collect taxes, including from a taxpayer located outside the relevant state. Vinnitskiy (2017) identifies three groups of factors that determine the ability to exercise jurisdiction in each specific case: 1) subject factors; 2) object factors; and 3) object-territorial factors. The researcher considers residence, domicile, and the place of management of the enterprise (a company) to be subject factors. The author defines the object as the concept of the source of income (profit) of the taxpayer and a permanent establishment. To the object-territorial – the location of the property, the territory of transit. Gidirim (2018) defines tax jurisdiction as the competence to establish and collect taxes, including the resolution of tax disputes, as well as the right to enforce tax obligations in case of tax violations. Depending on the importance of the tax jurisdiction components in a particular case, the researcher distinguishes three different tax sovereignties: 1) personal sovereignty; 2) territorial sovereignty; and 3) functional sovereignty. Personal sovereignty is the supreme authority of the state over citizens and organizations, including the right to extend its laws to these entities, wherever they may be located. Personal sovereignty is most pronounced in American tax law: according to US tax law, US citizens must pay taxes regardless of where those taxes were received. Territorial sovereignty is the supreme authority of the state over all persons and things that are located within the territory of the state. Functional sovereignty is a limited exercise of sovereignty: when a state does not have full sovereignty, it is still entitled to exercise some sovereign rights. An example of the implementation of functional sovereignty is the use of an exclusive economic zone. In the water area adjacent to the territorial waters, the state exercises certain sovereign rights. In the context of functioning of economic unions, states are forced to take into account all these international legal aspects of tax sovereignty and tax jurisdiction. Moreover, (in the context of OECD) it becomes impossible to consider only the tax sovereignty of the Russian Federation. As a key member of the Eurasian Economic Union, our state is self-limiting its sovereign tax rights in order to ensure the implementation of supranational acts, and is involved in the processes of tax integration and competition.

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