International taxation

Overview

International taxation is the study or determination of tax on a person or business subject to the tax laws of different countries, or the international aspects of an individual country's tax laws as the case may be. Governments usually limit the scope of their income taxation in some manner territorially or provide for offsets to taxation relating to extraterritorial income. The manner of limitation generally takes the form of a territorial, residence-based, or exclusionary system. Some governments have attempted to mitigate the differing limitations of each of these three broad systems by enacting a hybrid system with characteristics of two or more. Many governments tax individuals and/or enterprises on income. Such systems of taxation vary widely, and there are no broad general rules. These variations create the potential for double taxation (where the same income is taxed by different countries) and no taxation (where income is not taxed by any country). Income tax systems may impose tax on local income only or on worldwide income. Generally, where worldwide income is taxed, reductions of tax or foreign credits are provided for taxes paid to other jurisdictions. Limits are almost universally imposed on such credits. Multinational corporations usually employ international tax specialists, a specialty among both lawyers and accountants, to decrease their worldwide tax liabilities. With any system of taxation, it is possible to shift or recharacterize income in a manner that reduces taxation. Jurisdictions often impose rules relating to shifting income among commonly controlled parties, often referred to as transfer pricing rules. Residency-based systems are subject to taxpayer attempts to defer recognition of income through use of related parties. A few jurisdictions impose rules limiting such deferral ("anti-deferral" regimes). Deferral is also specifically authorized by some governments for particular social purposes or other grounds. Agreements among governments (treaties) often attempt to determine who should be entitled to tax what. Most tax treaties provide for at least a skeleton mechanism for resolution of disputes between the parties.

History

The intellectual foundation of the modern international taxation regime was set with a 1923 report prepared by prominent political economists and tax law experts for the League of Nations. The report formulated "general principles" to avoid the adverse effects of double taxation and encourage free trade, international capital flows, and economic growth. For example, the report tried to set guidelines for resolving who would be allowed to tax a resident or citizen of one state when that individual earned income in another state. Prior to the publication of the report, these kinds of questions were primarily decided through unilateral state decisions or bilateral tax treaties.

Taxation systems

Systems of taxation vary among governments, making generalization difficult. Specifics are intended as examples, and relate to particular governments and not broadly recognized multinational rules. Taxes may be levied on varying measures of income, including but not limited to net income under local accounting concepts (in many countries this is referred to as 'profit'), gross receipts, gross margins (sales less costs of sale), or specific categories of receipts less specific categories of reductions. Unless otherwise specified, the term "income" should be read broadly. Jurisdictions often impose different income-based levies on enterprises than on individuals. Entities are often taxed in a unified manner on all types of income while individuals are taxed in differing manners depending on the nature or source of the income. Many jurisdictions impose tax at both an entity level and at the owner level on one or more types of enterprises. These jurisdictions often rely on the company law of that jurisdiction or other jurisdictions in determining whether an entity's owners are to be taxed directly on the entity income. However, there are notable exceptions, including U.S. rules characterizing entities independently of legal form. In order to simplify administration or for other agendas, some governments have imposed "deemed" income regimes. These regimes tax some class of taxpayers according to tax system applicable to other taxpayers but based on a deemed level of income, as if received by the taxpayer. Disputes can arise regarding what levy is proper. Procedures for dispute resolution vary widely and enforcement issues are far more complicated in the international arena. The ultimate dispute resolution for a taxpayer is to leave the jurisdiction, taking all property that could be seized. For governments, the ultimate resolution may be confiscation of property, incarceration or dissolution of the entity. Other major conceptual differences can exist between tax systems. These include, but are not limited to, assessment vs. self-assessment means of determining and collecting tax; methods of imposing sanctions for violation; sanctions unique to international aspects of the system; mechanisms for enforcement and collection of tax; and reporting mechanisms. Countries that tax income generally use one of two systems: territorial or residence-based. In the territorial system, only local income – income from a source inside the country – is taxed. In the residence-based system, residents of the country are taxed on their worldwide (local and foreign) income, while nonresidents are taxed only on their local income. In addition, a small number of countries also tax the worldwide income of their nonresident citizens in some cases. Countries with a residence-based system of taxation usually allow deductions or credits for the tax that residents already pay to other countries on their foreign income. Many countries also sign tax treaties with each other to eliminate or reduce double taxation. In the case of corporate income tax, some countries allow an exclusion or deferment of specific items of foreign income from the base of taxation.

Individuals

The following table summarizes the taxation of local and foreign income of individuals, depending on their residence or citizenship in the country. It includes all United Nations member states and observer states, their inhabited dependent territories (most of which have separate tax systems), and other countries with limited recognition. In the table, income includes any type of income received by individuals, such as work or investment income, and yes means that the country taxes at least one of these types. Resident means a person residing in the country, regardless of citizenship; non-resident citizen means a citizen of the country residing elsewhere, it does not mean non-citizen.

Residency

Taxing regimes are generally classified as either residence-based or territorial. Most jurisdictions tax income on a residency basis. They need to define "resident" and characterize the income of nonresidents. Such definitions vary by country and type of taxpayer, but usually involve the location of the person's main home and number of days the person is physically present in the country. Examples include:

Spain considers as a resident a person who remains in Spain for more than 183 days in a calendar year or whose main base of activities or economic interests is in Spain. Switzerland residency may be established by having a permit to be employed in Switzerland for an individual who is so employed. The United Kingdom, prior to 2013, established three categories: non-resident, resident, and resident but not ordinarily resident. From 2013, the categories of resident are limited to non-resident and resident. Residency is established by application of the tests in the Statutory Residency Test. The United States taxes its citizens as residents, and provides lengthy, detailed rules for individual residency of foreigners, covering: periods establishing residency (including a formulary calculation involving three years); start and end date of residency; exceptions for transitory visits, medical conditions, etc.

Citizenship

In the vast majority of countries, citizenship is completely irrelevant for taxation. Very few countries tax the foreign income of non-resident citizens in general:

Eritrea taxes the foreign income of its non-resident citizens at a reduced flat rate of 2% (income tax rates for local income are progressive from 2 to 30%). It has been reported that Eritrea enforces this tax on its citizens abroad through denial of passports, denial of entry or exit from the country, confiscation of assets in Eritrea, and even harassment of relatives living in Eritrea, until the tax is paid. In 2011, the United Nations Security Council passed a resolution condemning the collection of the Eritrean 'diaspora tax'. The governments of Canada and the Netherlands expelled Eritrean diplomats in 2013 and 2018, respectively, for collecting the tax. The parliaments of Sweden and the European Union have also expressed their intention to prohibit the practice there. Hungary considers all of its non-resident citizens as tax residents, except those who hold another nationality. It taxes the worldwide income of its non-resident citizens using the same tax rates as for residents. However, it may not tax the foreign income of those who reside in countries that have tax treaties with Hungary, based on the type of income and provided all other treaty requirements are met, which usually infer legal residence in a single treaty country for most of the year. Nonresident citizens who do not satisfy these exceptions are taxed in the same manner as residents, at a flat rate of 15% on worldwide income, in addition to mandatory contributions of up to 18.5% on certain types of income. There is no minimum allowance or its equivalent in Hungary, meaning that all income is taxed. With its citizenship-based taxation, universal filing requirements and no allowance policy, the Hungarian tax regime is unique in the world. Kyrgyzstan taxes the worldwide income of non-resident citizens in the same manner as resident citizens. However, it may not tax the foreign income of those who reside in countries that have tax treaties with Kyrgyzstan. Myanmar taxes the salaries of its non-resident citizens in the same manner as for residents, with deductions and progressive rates up to 25%, or with no deductions and a flat rate of 2%, whichever results in a lower tax. It also taxes their foreign income other than salaries at a flat rate of 10%. Tax paid to other countries on the same income may be used as a credit against the tax imposed by Myanmar. Tajikistan considers all of its citizens as residents for tax purposes, and taxes the worldwide income of its residents. However, it may not tax the foreign income of those who reside in countries that have tax treaties with Tajikistan. The United States taxes the worldwide income of its non-resident citizens using the same tax rates as for residents. To mitigate double taxation, non-resident citizens may exclude some of their foreign income from work from U.S. taxation and take credit for income tax paid to other countries, and those residing in some countries with tax treaties may also exclude a few types of foreign income from U.S. taxation, but they must still file a U.S. tax return to claim the exclusion or credit even if they result in no tax liability. U.S. citizens abroad, like U.S. residents, are defined as "U.S. persons" and thus are also subject to various reporting requirements regarding foreign finances, such as FBAR, FATCA, and IRS forms 3520, 5471, 8621 and 8938. The penalties for failure to file these forms on time are often much higher than the penalties for not paying the tax itself and are far more punitive for non-residents than for U.S. residents. Like Eritrea, enforcement tactics used by the U.S. government to facilitate tax compliance include the denial of U.S. passports to non-resident U.S. citizens deemed to be delinquent taxpayers and the potential seizure of any U.S. accounts and/or U.S.-based assets. The IRS can also exert substantial compliance pressure on non-resident citizens as a result of the FATCA legislation passed in 2010, which compels foreign banks to disclose U.S. account holders or face crippling fines on U.S.-related financial transactions. Unlike Eritrea, the U.S. has faced little international backlash related to its global enforcement tactics. For example, unlike their response to Eritrea's collection efforts, Canada and all EU member states have ratified intergovernmental agreements (IGAs) facilitating FATCA compliance and supporting the U.S. global tax regime in place for U.S. citizens (including dual nationals). The implementation of these IGAs has led to a substantial increase in U.S. citizenship renunciations, hitting a record 6,707 renunciations in 2020, up 237% from the year before. Increasingly, numerous organizations representing Americans abroad including American Citizens Abroad, the Association of Accidental Americans, the Association of Americans Resident Overseas, Democrats Abroad, Republicans Overseas, Stop Extraterritorial American Taxation and Tax Fairness for Americans Abroad are lobbying Congress to switch to residence-based taxation in order to free Americans abroad from what they call discriminatory and unfair rules.

Several countries tax based on citizenship in specific situations:

Finland continues taxing its citizens who move from Finland to another country as residents of Finland, for the first three years after moving there, unless they demonstrate that they no longer have any ties to Finland. After this period, they are no longer considered residents of Finland for tax purposes. France taxes its citizens who move to Monaco as residents of France, according to a treaty signed between the two countries in 1963. However, those who have lived in Monaco continuously since 1957 or since their birth, or who also hold Monégasque nationality, among other cases, are not subject to taxation as residents of France. Italy continues taxing its citizens who change their registered residence from Italy to a tax haven as residents of Italy, unless they demonstrate that they actually reside in the other country. Japan levies inheritance and gift taxes on a worldwide basis for a period of 10 years after residence in Japan ends. These "look back" wealth taxes apply to Japanese citizens and certain other prior residents of Japan. Mexico continues taxing its citizens who move from Mexico to a tax haven as residents of Mexico, for the first five years after moving there. After this period, they are no longer considered residents of Mexico for tax purposes. The Netherlands taxes the worldwide inheritance and gifts left by its citizens for the first 10 years after moving from the Netherlands to another country, as if they remained residents of the Netherlands. Portugal taxes its citizens who move to a tax haven as residents of Portugal, for the first five years after moving there, unless they demonstrate that they moved for an acceptable reason. After this period, they are no longer considered residents of Portugal for tax purposes. Singapore requires its citizens and Singapore Permanent Residents born in 1980 or later to pay CareShield Life premiums no matter where they reside. CareShield Life is a government-operated disability insurance program. Severely disabled claimants can receive monthly cash benefits for life. The premiums (social insurance taxes) are owed from age 30 (or age of entry if later) to age 67 and are reduced or waived for low income Singaporean citizens. If Singaporean citizenship or Singapore Permanent Residence ends (is lost or terminated) then the CareShield Life coverage also ends, and there are no premium refunds. Singapore also requires its citizens and Permanent Residents to pay MediShield Life (basic hospitalization insurance) premiums no matter where they live, but Singaporean citizens can opt out of MediShield Life after 5 years of overseas residence. Spain continues taxing its citizens who move from Spain to a tax haven as residents of Spain, for the first five years after moving there. After this period, they are no longer considered residents of Spain for tax purposes. Sweden continues taxing its citizens (as well as foreigners who lived there for at least ten years) who move from Sweden to another country as residents of Sweden, for the first five years after moving there, unless they demonstrate that they no longer have essential connections to Sweden. After this period, they are no longer considered residents of Sweden for tax purposes. Turkey taxes its citizens who are residing abroad to work for the Turkish government or Turkish companies as residents of Turkey, but exempts their income that is already taxed by the country of origin. A few other countries used to tax the foreign income of nonresident citizens, but have abolished this practice:

Romania used to tax the worldwide income of its citizens regardless of where they resided, but abandoned this practice some time between 1933 and 1954. Mexico used to tax its citizens in the same manner as residents, on worldwide income. A new income tax law, passed in 1980 and effective 1981, determined only residence as the basis for taxation of worldwide income. However, since 2006 Mexico taxes based on citizenship in limited situations (see above). Bulgaria used to tax its citizens on worldwide income, regardless of where they resided. A new income tax law, passed in 1997 and effective 1998, determined residence as the basis for taxation of worldwide income. The Philippines used to tax the foreign income of non-resident citizens at reduced rates of 1 to 3% (income tax rates for residents were 1 to 35% at the time). It abolished this practice in a new revenue code in 1997, effective 1998. Vietnam used to tax its citizens in the same manner as residents, on worldwide income. The country passed a personal income tax law in 2007, effective 2009, removing citizenship as a criterion to determine residence. In Iran, Iraq, North Korea, the Philippines, and Saudi Arabia, citizenship is relevant for the taxation of residents but not for non-residents.

Special temporary regimes

Some jurisdictions offer special temporary regimes for new or recently arrived residents under which foreign income and gains may be exempt, taxed only on remittance, or covered by a fixed annual substitute tax; examples include Israel, Italy, Greece, Poland, Portugal, the United Kingdom, Uruguay, China, Japan, and lump-sum taxation in some Swiss cantons.

Other

There are some arrangements for international taxation that are not based on residency or citizenship:

United Kingdom imposes global income tax on anyone who owes UK student loans. These are not true loans, but borrowings to be repaid through an additional 9% income tax, levied above a certain income threshold, until the balance of the loan expires in 30 years. The interest rate is expressed as a punitive addition to the UK Retail Price Index inflation rate (e.g. RPI + 3%), so the value of the loan cannot be inflated away. The loan cannot be repudiated by declaring bankruptcy. The income tax is imposed irrespective of citizenship or residency, which means the UK HMRC must track the location and income of all loan holders, wherever they are in the world, for several decades.

Corporations

Countries do not necessarily use the same system of taxation for individuals and corporations. For example, France uses a residence-based system for individuals but a territorial system for corporations, while Singapore does the opposite, and Brunei and Monaco taxes corporate but not personal income.

Exclusion

Many systems provide for specific exclusions from taxable (chargeable) income. For example, several countries, notably the United States, Cyprus, Luxembourg, Netherlands and Spain, have enacted holding company regimes that exclude from income dividends from certain foreign subsidiaries of corporations. These systems generally impose tax on other sorts of income, such as interest or royalties, from the same subsidiaries. They also typically have requirements for portion and time of ownership in order to qualify for exclusion. The United States excludes dividends received by U.S. corporations from non-U.S. subsidiaries, as well as 50% of the deemed remittance of aggregate income of non-U.S. subsidiaries in excess of an aggregate 10% return on tangible depreciable assets. The Netherlands offers a "participation exemption" for dividends from subsidiaries of Netherlands companies. Dividends from all Dutch subsidiaries automatically qualify. For other dividends to qualify, the Dutch shareholder or affiliates must own at least 5% and the subsidiary must be subject to a certain level of income tax locally. Some countries, such as Singapore, allow deferment of tax on foreign income of resident corporations until it is remitted to the country.

Individuals versus enterprises

Many tax systems tax individuals in one manner and entities that are not considered fiscally transparent in another. The differences may be as simple as differences in tax rates, and are often motivated by concerns unique to either individuals or corporations. For example, many systems allow taxable income of an individual to be reduced by a fixed amount allowance for other persons supported by the individual (dependents). Such a concept is not relevant for enterprises. Many systems allow for fiscal transparency of certain forms of enterprise. For example, most countries tax partners of a partnership, rather than the partnership itself, on income of the partnership. A common feature of income taxation is imposition of a levy on certain enterprises in certain forms followed by an additional levy on owners of the enterprise upon distribution of such income. For example, the U.S. imposes two levels of tax on foreign individuals or foreign corporations who own a U.S. corporation. First, the U.S. corporation is subject to the regular income tax on its profits, then subject to an additional 30% tax on the dividends paid to foreign shareholders (the branch profits tax). The foreign corporation will be subject to U.S. income tax on its effectively connected income, and will also be subject to the branch profits tax on any of its profits not reinvested in the U.S. Thus, many countries tax corporations under company tax rules and tax individual shareholders upon corporate distributions. Various countries have tried (and some still maintain) attempts at partial or full "integration" of the enterprise and owner taxation. Where a two level system is present but allows for fiscal transparency of some entities, definitional issues become very important.

Source of income

Determining the source of income is of critical importance in a territorial system, as source often determines whether or not the income is taxed. For example, Hong Kong does not tax residents on dividend income received from a non-Hong Kong corporation. Source of income is also important in residency systems that grant credits for taxes of other jurisdictions. Such credit is often limited either by jurisdiction or to the local tax on overall income from other jurisdictions. Source of income is where the income is considered to arise under the relevant tax system. The manner of determining the source of income is generally dependent on the nature of income. Income from the performance of services (e.g., wages) is generally treated as arising where the services are performed. Financing income (e.g., interest, dividends) is generally treated as arising where the user of the financing resides. Income related to use of tangible property (e.g., rents) is generally treated as arising where the property is situated. Income related to use of intangible property (e.g., royalties) is generally treated as arising where the property is used. Gains on sale of realty are generally treated as arising where the property is situated. Gains from sale of tangible personal property are sourced differently in different jurisdictions. The U.S. treats such gains in three distinct manners: a) gain from sale of purchased inventory is sourced based on where title to the goods passes; b) gain from sale of inventory produced by the person (or certain related persons) is sourced 50% based on title passage and 50% based on location of production and certain assets; c) other gains are sourced based on the residence of the seller. In specific cases, the tax system may diverge for different categories of individuals. U.S. citizen and resident alien decedents are subject to estate tax on all of their assets, wherever situated. The nonresident aliens are subject to estate tax only on that part of the gross estate which at the time of death is situated in the U.S. Another significant distinction between U.S. citizens/RAs and NRAs is in the exemptions allowed in computing the tax liability. Where differing characterizations of an item of income can result in differing tax results, it is necessary to determine the characterization. Some systems have rules for resolving characterization issues, but in many cases resolution requires judicial intervention. Note that some systems which allow a credit for foreign taxes source income by reference to foreign law.