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How a U.S. Supreme Court ruling could modernize Canada's tax system

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In the last few months, several countries have considered the idea of levying taxes on digital companies. But because these companies can operate from virtually anywhere, a digital tax would require updating old tax rules that only allow governments to tax companies that have a physical presence in the country.

The United States Supreme Court’s recent revision of a long-established jurisprudence is likely to influence digital tax discussions around the world. The court overturned a 26-year-old precedent and ruled that a state can require sales taxes from companies with no physical presence in the state.

Law professors and economists had vigorously called for such a decision. They have pointed out that in the age of online sales, the physical presence rule has become a drag on economic efficiency. They have argued that it distorts online shoppers’ decisions and discourages companies from expanding across state lines.

Tackling the digital economy

As consumers shift to online shopping and new businesses increasingly focus investments on digital products and services, governments around the world are understanding the need to update old tax rules to avoid losing tax revenue.

The challenges posed by the digital economy are not limited to online sales. Digital economy refers to different phenomena and activities. It also includes the “sharing economy,” featuring companies like Airbnb and Uber, the new economic structures adopted by multinationals and the growing importance of intangible assets.

These other aspects create significant challenges for governments, especially as multinationals today can easily transfer intangibles to jurisdictions with low-tax regimes, such as Ireland and Luxembourg, and avoid paying taxes on their global profits and services.

Updated rules for digital taxation

A large part of the problem is the aforementioned physical presence tax rule. It allocates jurisdiction to tax according to where the company is set up or its assets are placed. As long as the physical presence rule persists, governments will increasingly struggle to tax multinationals and digital service providers.

The U.S. Supreme Court decision is important because it paves the way for replacing the outdated physical presence rule with the concept of what’s known as virtual presence. In practice, this means taxing a company based on where users are located instead of where the company is placed.

The decision affects only U.S. companies and consumers, but the conceptual shift is likely to have worldwide influence.

International implications

Since most of the tech giants are American companies, it should come as no surprise that the U.S. strongly opposes any attempt by other countries to tax digital service providers.

In a statement following the release of an Organisation for Economic Co-Operation and Development’s (OECD) report on taxation of the digital economy, U.S. Treasury Secretary Steven Mnuchin said: “The U.S. firmly opposes proposals by any country to single out digital companies. Some of these companies are among the greatest contributors to U.S. job creation and economic growth.”

Given the fact that the U.S. is considered largely responsible for blocking progress towards digital taxation in the OECD, the recent U.S. Supreme Court decision is likely to play a significant role in the international community.

Canada hesitant, Québec taking the lead

The Canadian government has sent mixed signals on digital taxation. Prime Minister Justin Trudeau has rejected taxing foreign web giants such as Facebook, Amazon, Apple, Netflix and Google for fears of increasing costs of digital services for Canadians. Finance Minister Bill Morneau, however, has said the federal government is studying the issue and will wait to see “how the international community is going to think about digital taxation.”

Meanwhile, the Québec government has decided to go it alone. In March, Québec announced that foreign digital suppliers will have to register and collect sales taxes beginning in 2019.

Technically, a sales tax on digital services has already been in place in some Canadian provinces (including Québec) for years, but it has always depended on users to self-report. Not surprisingly, users rarely do. A similar reporting system in place in the U.S. has been called by one law professor a “tax on honesty” as it relies on the most principled or cautious citizens for compliance.

Challenges ahead

Aside from political difficulties achieving consensus on whether and how to tax the digital economy, governments will struggle to find effective ways to enforce compliance, especially by foreign companies.

Likewise, some form of agreement between countries will likely be necessary. The lack of an agreement could result in companies having to comply with completely different rules for each government or suffering double (or more) taxation.

But these challenges should not prevent governments from taking measures to deal with the issue. As the U.S. Supreme Court’s majority opinion has noted, to ignore the need to revise current tax rules means allowing taxpayers to escape paying taxes that are essential to maintaining integral public goods and services.

Tackling the digital economy is vital for fair market competition and a healthy tax system.

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