论数字时代来源地课税的合理性

Justifying Source Taxation in the Digital Age

价值创造这一概念是受益理论的引申发展,它证明了来源地课税的合理性(比如解释了原因及其公平性),但是解决不了其他问题。换言之,如果一个非居民企业在市场管辖区中创造了价值,那么该价值将被认为是该企业利用来源地/市场管辖区提供的惠益(主要是需求因素,而非供给因素)创造的,而该惠益以及文中论述到的其他惠益主要源自于技术基础设施以及有助于合同义务履行和允许强制执行债务的法律体系。不难发现,与将利润归因于税收管辖区内进行的经营活动相关的难题,或与此类利润的量化和分配有关的任何其他问题,都未能通过"价值创造"这一概念得到有效解答。在1920年代,征税权的分配方案是经过谈判达成的妥协结果。而2020年代的妥协方案则可以通过受益原则来论证确立来源地征税权的合理性。

This article attempts to establish a justification for the taxation of income earned by highly digitalised businesses in the source or market jurisdiction. The article explains why this theoretical question is such an important issue in international tax. Despite these limitations,the proposition put forward in this article is that the concept of value creation is a further development of the benefit theory,justifying( as in showing the reason for,or fairness of) source taxation but doing no more. In other words,if some value is generated for a non-resident enterprise in a market jurisdiction,it is because that enterprise is utilising some of the benefits provided by that source/market jurisdiction to create that value due to factors of demand rather than factors of supply. The benefits in this market jurisdiction arise because of technology infrastructure,legal systems which sustain contractual obligations and permit enforcement of debts,as well as a variety of other benefits discussed above. What seems clear is that the hard questions relating to attributing profits to activities carried on in a jurisdiction or any of the other questions relating to quantification and apportionment of such income are not answered by such a concept. In the1920 s the allocation of taxing rights was a negotiated compromise. The 2020 s compromise can justifiably settle on the right of the source jurisdiction to impose taxation with its justification based on the benefit principle.