Taxation of Digital Services Under Trade Agreements

Chris Noonan and Victoria Plekhanova

Journal of International Economic Law, vol. 23, issue 4, 1015-1039

Abstract: The digitalization of the economy combined with sophisticated tax planning has enabled some multinationals to avoid paying almost any income tax in most market jurisdictions from which they earn substantial profits. Faced with financial and political pressures to act, market states have sought to expand their tax bases so that these multinationals, especially those providing internet advertising and digital intermediation services, pay their ‘fair’ share of tax. The failure to reach an agreed outcome among Organisation for Economic Co-operation and Development and Group of Twenty members has led to an increasing number of states to take unilateral measures. In doing so, states need to navigate their obligations under double taxation agreements and trade agreements. An examination of typical double taxation agreements, the General Agreement on Trade in Services, and recent preferential trade agreements shows that states have limited options to expand their tax bases in compliance with their international obligations. Here, the imposition of an appropriately designed digital services tax has political and legal advantages. The growing volume of cross-border digital services and data flows suggests that greater engagement between the international tax and trade regimes is likely in the future, including in the negotiations of disciplines on electronic commerce.

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