Por: Carlos Urbina

Reuven S. Avi-Yonah, es director del LLM en Tributación Internacional de la Universidad de Michigan. Ha sido asesor del departamento del tesoro de EEUU y de la OCDE.

Antes de incorporarse como profesor en Michigan, dictó clases en Harvard y Boston College.

Su formación académica la hizo en Hebrew University con su grado de historia y en Harvard con un doctorado en Historia. Luego estudia derecho en Harvard. Ha publicado más de 150 libros y artículos, entre esos International Tax as International Law (publicado por Cambridge University Press en el año 2007) y Global Perspectives on Income Taxation Law (publicado por Oxford University Press, en el año 2011).

El profesor saca tiempo de su apretada agenda para comentar con los lectores de Momento Fiscal el reciente affair con Colombia por el intercambio de información tributaria.

La entrevista está en inglés y será traducida al español en los próximos días:

Momento Fiscal:

1. In 2007 you mentioned Graetz, Rosembloom, Roin, Kane and Dagan as academics denying the existence of an international tax regime binding countries.  In light of recent developments (ie. BEPS, adherence to OECD exchange of information standards, etc.) do you think they are willing to accept your thesis of the existence of this international regime?

Prof. Avi-Yonah:

I think they would concede that treaties embody the fundamental principles I identified as underlying the regime (the benefits principle and the single tax principle) but would continue to deny that these principles apply outside the treaty context because the OECD cannot make countries harmonize their tax laws to prevent double non-taxation.

Momento Fiscal:

2. When do you think the first global accepted tax standard was identifiable as part of customary international law?

Prof. Avi-Yonah:

I think the arm's length standard was accepted as binding by the US Treasury as early as 1988 despite the fact that they could override treaties. In 1989 the US went out of its way to avoid the appearance of violating non-discrimination. If you look earlier, in 1935 the US deliberately refrained from taxing a US-controlled foreign corporation directly on foreign source income, but the US no longer accepts this limitation.  

Momento Fiscal:

3. When the OECD started having tax haven lists Panama signed a commitment to adhere to OECD standards.  This commitment is not a treaty under international law.  Is that commitment biding under International Law?

Prof. Avi-Yonah:

I don't think so because it's very hard to show that most countries actually adhere to it in practice.

Momento Fiscal:

4. Colombia has put us on a tax haven list.  Should we not sign an exchange of information treaty with them several withholding taxes will kick in.  This is not different from any other black list set forth in the past.  ¿Do you see this as customary international law since the practice of blacklisting jurisdictions has been consistently followed by several countries in the past?

Prof. Avi-Yonah:

No, because I don't think they are binding (they just apply in the country adopting the list, not directly on the other country). The fact that in practice this may constrain Panama is not legally relevant- the US forced Bolivia to abandon its corporate cash flow tax in the 1990s because they would not allow a foreign tax credit, but that does not mean the US definition of income taxes is customary international law

Momento Fiscal:

5. As part of its commitments with the Global Forum Panama signed several double taxation agreements and exchange of information agreements.  Do you see these actions as biding Panama to sign an agreement to exchange tax information with any other country that will ask for one?

Prof. Avi-Yonah:

No, tax treaties are bilateral. I do think there is an evolving trend toward adopting automatic EOI as the global standard but I don't see this becoming binding on non-signatories unless there is a multilateral treaty with overwhelming support (e.g., the human rights conventions).

Momento Fiscal:

6. Because of immigration to Panama our country’s population is at least 15% composed of Colombians.  Additionally that country is a major trading partner of Panama.  What justification will Panama have, with such strong connection, not to exchange tax information with Colombia?

Prof. Avi-Yonah:

I think Panama should exchange. In general I don't like countries aiding and abetting tax evasion by residents of other countries. 

Momento Fiscal:

7. Panama has formally told Colombia that the reason not to sign an exchange of information agreement is the fact of having a territorial as oppose to a world-wide income taxation regime.  Do you find that a valid excuse?

Prof. Avi-Yonah:

No, because even if Panama is willing not to tax its residents on foreign source income, it should not hinder Colombia's desire to tax on a global basis. The vast majority of countries have now adopted global personal taxes for individual residents because otherwise progressively comes meaningless. Treaties are always reciprocal but frequently reciprocity is meaningless because all the investment flows are in one direction, but that does not render them invalid.

Momento Fiscal:

8.  Is the lack of willingness to sign a double taxation agreement a valid excuse not to sign an exchange of information agreement. That is can Panama tell Colombia I wont sign an information exchange agreement without signing a DTC?

Prof. Avi-Yonah:

No, Brazil was willing to sign IE without a DTC with the US, and most Caribbean jurisdictions have IE but no DTC with the US.

Momento Fiscal:

9.  Do you think a country can take, to the international court of justice, a claim to access tax information from another country?

Prof. Avi-Yonah:

It can try, assuming the other country agrees to accept jurisdiction (countries in general cannot be sued in the ICJ unless they agree), but I doubt it will succeed in establishing an IE customary international law norm in the current state of IE. 

Momento Fiscal:

10. Besides your extensive bibliography, which authors do you recommend for further reading on taxation norms of International Law?

Prof. Avi-Yonah:

Hugh Ault, Philip Baker. 

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