In our final talk of the academic year, we will be joined by Professor Alice Abreu of Temple University. Please join us on Thursday 5pm UK time. See “meetings” section for more information or contact Guy Mulley (firstname.lastname@example.org) or May Hen-Smith (email@example.com) for the link.
In this talk Professor Alice Abreu will link a series of observations: 1) The relative lack of diversity in the US tax bar; 2) The traditional view of the tax law as involving one value – raising revenue – rather than multiple and heterogeneous values, exacerbated by the concept of tax expenditures, which places non-revenue values outside the purview of the tax law; 3) The implicit bias that is baked into the tax law through its privileging of capital and its owners, among other things, producing an Internal Revenue Code that is racially blind but not racially neutral; and 4) How many of the Biden Administration’s legislative proposals, for both individual and corporate taxpayers, might begin to disrupt that, perhaps even leading to the long-term provision of a universal basic income.
Professor Alice Abreu is Professor of Law, and the Director of the Center for Tax Law and Public Policy, at Temple University in Philadelphia. A graduate of Cornell University and Cornell Law School, Professor Abreu has lectured at Harvard and at Yale Law Schools. Professor Abreu began her career in practice and was actively involved with the tax section of the American Bar Association. Professor Abreu’s areas of interest include income tax (both local and international) and the formulation of tax policy. Professor Abreu also has the unusual distinction of having both lectured in and run marathons in Rome. As usual, no prior knowledge of or experience in taxation is necessary in order to attend this meeting of the Cambridge Tax Discussion Group.
We are delighted to have distinguished legal academic and tax commentator Professor Steven Dean as our speaker, who will be explaining themes of his forthcoming book“Predatory Cooperation: Racial Capitalism and the Taxation of Cross-Border Transactions”.
The rules governing the taxation of cross-border transactions have been re-made, to tame the perceived threat to global markets posed by decolonization and again to tame the perceived threat to the welfare state posed by the lawlessness of those former colonies. In both instances, a subtext of racial anxiety distorted the machinery of cross-border taxation. This book retells the story of cross-border taxation from a new perspective, providing an opportunity to create rules and institutions that serve all rather than reflecting the biases of the few.
Dr Steven Dean is Professor of Law at Brooklyn Law School. He writes, tweets and podcasts about tax law and social enterprise. As well as a substantial body of scholarship on international and corporate taxes, Dr Dean also lectures on personal and income taxes and on tax policy. after an undergraduate degree in Political Economy, Dr Dean gained his J.D. (Doctor of Law) from Yale Law School.
This week we have Adam Glen, member of the Cambodian Department of Taxation Technical Working Group speaking. We look forward to welcoming everyone to this talk on Thursday April 29th, 17:00-18:00 online. Please contact May Hen-Smith (firstname.lastname@example.org) or Guy Mulley (email@example.com) for the link. More information on other meetings can be found under the “Meetings” tab.
Adam Glen sits in the unique position of being a non-Khmer who has been advising the Cambodian government about the development of the country’s tax system.
For the past 600 years, Cambodia has been attempting to both survive and regain its Sovereignty. For a brief period in the second decade of the 21st century, Cambodia managed to partially reclaim its Sovereignty through the improvement in tax revenue collection due to the successful application of Tax Law. Being a dual currency economy it has not yet achieved Fiscal Sovereignty as it is pegged to the US Dollar but in other aspects Sovereignty was re-established. However, the lack of development in Administrative Law means that events since 2013 have resulted in Sovereignty migrating from the Constitution to the Executive.
Setting his presentation in a geo-political and historical context, Adam will consider the economic, constitutional and legal influences that have helped to shape Cambodia’s emerging tax system.
Adam began his working life as a fraud investigator in Australia, before moving into the IT sector to specialise in corporate governance and regulatory compliance, working in Europe, Russia and the Middle East. Since 2012 he has been helping various departments of the Cambodian government, notably in advising Non-Governmental Organisations (NGOs) on Tax Law.
Adam started his working life in accountancy with a Chartered Accountant in Australia working on fraud investigation but, when it moved to audit, sanity prevailed and he moved to the UK to serve as an infantry platoon commander in the British Army. After escaping from that job he started work in the IT industry. He spent time in East Europe, Central Europe, Russia and the Middle East supporting subsidiary companies in corporate governance, regulatory compliance and high-value contractual disputes. In 2006, at 56, he attended Edgehill University where he obtained a 1st Class Honours in Law. Subsequently, he presented at the BILETA conference on the technical issues in enforcing copyright law against file-sharers. After working for two questionable Law firms in the UK as a paralegal he decided not to follow a career in Law but rather focus upon applied law.
In 2012 he volunteered with VSO as a Strategic Advisor to the Department of Fisheries in Phnom Phen. His first introduction to Cambodian Law was Cambodian Labour Law and Contract Law while negotiating changes to employment and procurement contracts.
On retirement, he volunteered to help Cambodia NGOs to understand their legal obligations, strategic planning and organisational change. In 2016 he was asked to help NGOs with Cambodian Tax Law and has continued that work. In 2019 he was co-opted by the Ministry of Economy and Finance to sit on a Technical Working Group to examine and advise on Tax Law related to NGOs. He is the only non-Khmer person in that Working Group. From a viewpoint of the development of Cambodia, he tries to restrict his work to advising, educating, knowledge transfer, mentoring and guiding Khmer citizens. He is not paid for any of his work.
In addition to his UK law degree, Adam has completed Diplomas in Cambodian Tax Law and Cambodian Company Law. He lives in Cambodia, his wife is Khmer, he does not speak Khmer and now, after 9 years, speaks broken English and Australian.
This week, Dr Pichhadze will be identifying and explaining the necessary role of an intra-disciplinary approach to taxation research and analysis. He will use the example of the ‘transfer pricing’ rules, to demonstrate the need for such an approach in delineating transactions. Dr Pichhadze will argue that a tax rule can be applied to a transaction only after the transaction has been correctly delineated. A risk arises in practice that contractual terms may not be correctly analysed by tax jurists, unless they are alert to the need for an intra-disciplinary approach.
Dr Pichhadze is a prolific and energetic thinker in the field of Tax Law. In addition to his undergraduate LLB , he holds an LLM in Taxation from the London School of Economics and an LLM in International Taxation from Michigan Law School, where he also attained his Doctorate. Alongside his extensive academic writing, Dr Pichhadze has been an editor and a referee for numerous law journals. Away from academia Dr Pichhadze has held a Judicial Clerkship at the Tax Court of Canada. Dr Pichhadze is also a talented artist who has received numerous commissions for his work.
See “Meetings” tab for more information. We hope you will join us Thursday March 4th from 17:00-18:00 (GMT). The meeting will be held ONLINE. E-mail May Hen-Smith firstname.lastname@example.org or Guy Mulley email@example.com for link
This week we are delighted to have Dr. Dominic de Cogan present his work to our group. As most of you may know, Dominic conceived of and co-founded the Cambridge Tax Discussion Group in October 2015 which eventually formed in to a PhD-student led group. We have been running since then with Dominic’s support and have used the forum to provide thoughtful, cutting-edge and engaging discussions on tax related topics at a very high level; and made accessible to all throughout the University and beyond. Please join us this week in what will be an engaging look at tax from a constitutional and public law perspective.
Summary of talk: Dr Dominic de Cogan, from the Faculty of Law at the University of Cambridge, will give a presentation on “Tax, The Constitution and Public Law”. Author of Tax Law, State Building and the Constitution, Dominic will be expanding on his 2020 monograph, to address some topical aspects of the discourse on the relationship between tax and the State. From domestic issues, such as devolution in the United Kingdom, to international concerns, such as the taxation of multi-national corporations, Dominic will be challenging our established perspectives. Dominic will also be explaining his current work about the relationship between tax and public law.
See “Meetings” tab for more information. We hope you will join us Thursday February 18th from 17:00-18:00 (GMT). The meeting will be held ONLINE. E-mail May Hen-Smith firstname.lastname@example.org or Guy Mulley email@example.com for link
This week on the Cambridge Tax Group we have a presentation by Robert Hartley. We will begin at our normal time of 17: 00 on Thursday February 4th. We hope you will join us.
Please contact Guy Mulley (firstname.lastname@example.org) or May Hen-Smith (email@example.com) for access to the meeting link.
Title: A Career In Tax Disputes?
Robert Hartley takes a practical look at tax disputes in the UK over the last twenty years and how tax disputes progress from initial enquiries to resolution. The talk will touch on matters such as developments in the way HMRC approach tax avoidance, evidential issues such as privilege, and the human cost of unresolved tax disputes. This talk is ideal for anyone looking to gain some insight into what a career in tax looks like, or who is considering a career specialising in contentious matters more generally.
Robert Hartley is a partner and solicitor-advocate in the tax disputes team at the (hopefully) well-known firm of Mishcon de Reya LLP. Having graduated from Magdalene College in 1993, he joined the post-graduate Cambridge LLM course the same year. He then worked for a time as a junior barrister before beginning a tax career in 1999 at what is now Hogan Lovells LLP. Alongside his work on a number of high-profile contentious and non-contentious tax matters over the years, he spent a number of years teaching VAT at King’s College London, and specializes in “big ticket” direct and indirect tax disputes. He is not an accountant, but he will work with spreadsheets if he really has to.
The Cambridge Tax Discussion Group is a PhD student run meeting group with weekly discussions of wide-ranging tax-related topics. We have been meeting weekly during term-time since 2015 and hope to continue with engaging topics that are tax or tangentially tax-related topics! This term, we are meeting fortnightly. We are friendly, open to all and interdisciplinary. We sincerely hope you will join us on our next online meeting which will be on Thursday 21 January at 17:00-18:00 (GMT). See our “Meetings” page for updated talks, links and previous topics covered.
Abstract:The presentation examines the strategic role of tax in relation to Canada’s colonial administration of Indigenous nations and the broader role of tax in relation to settler colonialism. I will discuss some of the ongoing analytical problems in tax scholarship in relation to colonialism and look to build an approach that focusses on the informal and ideational life of tax. The case study examines the First Nations Financial Transparency Act, which paired ideas about transparency with taxation, accountability, and citizenship. I aim to show how the state bureaucracy aimed to re-make Indigenous political identity around ‘taxpaying’.
About Our Presenter
Kyle Willmott is Assistant Professor of Sociology at Simon Fraser University in Vancouver, British Columbia, Canada. Working between political sociology, fiscal sociology, and economic sociology, his research attends to the cultural politics of taxation, Indigenous-settler relations, settler colonialism, and liberalism. His work has been published in Economy and Society and Critical Social Policy. He is Mohawk from the Mohawks of the Bay of Quinte First Nation.
This week we have four special guests from Copenhagen Business School who will be introducing and discussing their work in tax from three different fields of research. With thanks to Yvette Lind who has co-ordinated this group of speakers for what will be a very engaging discussion on tax but also three approaches to studying tax. We will begin an hour earlier than normal on Thursday October 29th at 16:00-17:00 London time and, as always, all are welcome to attend.
Updated information on this talk and other talks at the University of Cambridge can be found here.
Karen Boll is Associate Professor at Copenhagen Business School. Karen conducts ethnographic and qualitative studies of tax authorities’ work, business’ tax compliance practices and collaborative tax regulation. Karen’s work has been innovative in seeing tax compliance as an assemblage of relations and actors, and groundbreaking in her access to studying tax administration in both Denmark and Sweden. Karen’s work on taxation has been published extensively in journals such as Journal of Organizational Ethnography, Nordic Tax Journal, Critical Perspectives on Accounting, Journal of Cultural Economy, Journal of Tax Administration and Accounting, Organizations and Society.
Yvette Lind is currently an Assistant professor in tax law at Copenhagen Business School (CBS Law). Swedish jur.dr. (JD) specializing in international taxation with an emphasis on challenges arising from globalization, increased taxpayer movement and the fragmentation of law. Awarded Swedish TOR/Skattenytt post-doc between 2017-2019 in connection to defending her doctoral thesis, facilitating specialising in EU state aid law in various fiscal contexts, e.g. tax avoidance and environmental taxation. Currently working on her taxation and democracy project in which she explores the effects of increased taxpayer mobility with reference to the allocation of not only taxation and access to (social) welfare benefits but also political rights and benefits such as voting privileges. Regular guest researcher and teacher at the Faculty of Law, Lund University.
Saila Stausholm is a doctoral student at Copenhagen Business School, currently finishing her dissertation on the International Political Economy of international taxation, through the Horizon 2020 project COFFERS “Combating Fiscal Fraud and Empowering Regulators”. Stausholms research spans different dimensions of the political economy of corporate taxation and exploits new datasources on hard-to-study phenomena.Her projects have identified the role of transnational professionals in offshore finance through mapping the geography of tax advisors and Big Four accounting firm employees, investigated the effectiveness of tax incentives in developing countries, and estimated the revenue impacts of a global reform of corporate taxation towards destination based cash flow taxation.
Leonard Seabrooke is interested in the micro-level elements that permit the macro composition of the international political economy and transnational governance. This includes: how professionals compete and coordinate to establish new regulations and new markets; the professional careers of those involved in international economic governance and transnational activism; generational conflicts between groups seeking to secure housing and financial assets within different national systems of residential capitalism; and conflict between groups over taxation and accounting issues. His work frequently draws upon analytical and methodological tools from political economy and economic sociology, including sequence analysis and social network analysis, among others.
During this term we will meet fortnightly. For this week’s meeting we will be able to hear about tax research across the academic spectrum and from around the world. For information on upcoming and past meetings click on our “UPCOMING MEETINGS” tab.
We have five mini-presentations:
Professor of Law Neil Buchanan, from the University of Florida, will be explaining how he chooses topics for scholarly writing, how theoretical research advances the conversation and how to deal with economics in tax analysis.
Philip Baker QC, tax barrister and a visiting Professor, will be discussing the practising lawyer’s approach to academic tax law and the role of practicing lawyers who also engage in academic work, as well outlining his own journey into tax academia and some of his current research plans.
Dr Amir Pichhadze, from the University of Oxford, will be bringing his international academic experience to bear on the subject of tax law teaching and research.
Christina Allen, lecturer in law at Edith Cowan University in Perth, Australia, will be using her forthcoming tax project about definitions of wealth and income to illustrate the challenges of framing and narrowing a research question.
Gabriel Nwodo, a Nigerian law graduate, will be articulating why he is returning to academic study, as a newly arrived LLM postgraduate student at the University of Cambridge.
As usual, there will be the opportunity for discussion and asking questions.
Does the Internal Market Bill alter the tax devolution settlement?
The Internal Market Bill was introduced to the House of Commons of the UK on 9 September 2020 with the intention of ensuring “free trade in goods and services between the four nations” and “to prevent new barriers to intra-UK trade from emerging”.
A great deal of attention has been paid to the alleged inconsistency of clauses 42, 43 and 45 with the UK’s international legal obligations and in particular the Northern Ireland Protocol to the EU-UK Withdrawal Agreement. This blogpost addresses a narrower but still important question, which is whether the Bill alters the devolution of taxation between the UK and the devolved administrations in Scotland, Wales and Northern Ireland.
The internal markets in goods and services
At first sight, this seems extremely unlikely. Paragraph 9 of Schedule 1 provides that:
The United Kingdom market access principles do not apply to (and sections 2(3) and 5(3) do not affect the operation of) any legislation so far as it imposes, or relates to the imposition of, any tax, rate, duty or similar charge.
This seems to preclude any argument that a devolved tax rule or decision might impede the internal market. Those hoping to replicate the success of claimants before the CJEU who have argued that the tax rules of member states have discriminated against them, in contravention of the fundamental freedoms of the EU, are likely to remain disappointed.
This picture changes, but only in detail, when we look at the definition of “market access principles” in clause 1 of the Bill. Clause 1 provides that:
(2) The United Kingdom market access principles are—
(a) the mutual recognition principle for goods (see sections 2 to 4), and
(b) the non-discrimination principle for goods (see sections 5 to 9).
This confirms that the above exclusion of tax only applies to Part I of the Bill dealing with the internal market in goods. Does it follow that a taxpayer might have greater success in arguing that a tax rule or decision discriminates against them and hence impedes the internal market in services, covered in Part II of the Bill? In a word, no. Part 3 of Schedule 2 provides that clause 17, which governs mutual recognition of authorisation requirements for the provision of services, does not apply to:
Any authorisation requirement in connection with taxation
Likewise, Part 2 of Schedule provides that clauses 18 and 19, which govern non-discrimination in relation to regulatory requirements for the provision of services, do not apply to:
Any regulatory requirement in connection with taxation
So, tax also appears to be effectively excluded from the provisions of the Bill dealing with the internal market in services. The important thing to notice, though, is that the exclusions of tax in Schedules 1 and 2 only relate to specific provisions in the Act, and indeed there is no general exclusion of tax from the Bill as a whole.
Distortive or harmful subsidies
This becomes significant when we look at clause 48 of the Bill, which intervenes in the highly charged question of which of the powers being repatriated from the EU should be assigned to the central UK institutions and which powers should instead be assigned to the devolved administrations in Scotland, Wales and Northern Ireland. Clause 48 confirms that the regulation of State Aid, or in other terminology ‘distortive or harmful subsidies’, will be treated as a matter reserved to the UK.
Whether or not the reservation of these matters to the UK is appropriate in general is irrelevant to the present blogpost, though I note that the UK is likely to need some degree of subsidy control in order to comply with its obligations under WTO law. My concern here is to ask whether this clause has the potential to upset either the existing distribution of devolved tax powers or the trajectory of tax devolution. As the following paragraphs explain, my answer to this is “yes”, with the proviso that clause 48 does not itself regulate tax subsidies (or any other type of subsidy) but merely reserves to Westminster the right to do so. In reaching this conclusion I consider, first, whether a tax rule or decision can in principle be seen as a distortive or harmful subsidy; second, what the Bill says on the matter; third, whether tax is excluded from the operation of clause 48; and fourth, whether there is any special protection for existing arrangements.
On the first question, aside from the provisions of the Bill, we are likely to conclude that a tax relief provided in a discriminatory or otherwise improper manner can certainly be described as a distortive or harmful subsidy. We have all heard of “pork barrel” politics whereby governments provide questionable tax benefits because of family connections or in return for promises to vote for a given political party. Under EU law, too, it is beyond doubt that tax treatments can be held to constitute illegal state aid, even if the recent litigation around the Republic of Ireland’s treatment of Apple has highlighted the uncertainties in difficult cases.
On the second question, the scope of the reservation in clause 48 is expressed as follows:
Regulation of the provision of subsidies which are or may be distortive or harmful by a public authority to persons supplying goods or services in the course of a business.
The definition of “subsidy” further down in clause 48 does not either include or exclude tax explicitly, but paragraph 168 of the government’s earlier White Paper on the internal market suggests that it was intended to be included:
A subsidy is, broadly speaking, support in any form (financial or in kind) from any level of government – central, regional or local – which gives an advantage to a business that it could not obtain otherwise. This advantage could be in any form, including a grant, a tax break, a loan or guarantee on favourable terms or use of facilities below market price.
There is a strong prima facie argument, therefore, that a “tax break” can in principle count as a distortive or harmful subsidy and that the power to regulate such subsidies will fall to the UK under the reservation in clause 48 even in relation to fully and partly devolved taxes.
The third question is whether the Bill excludes tax from the operation of clause 48. The answer to this is that there is no evidence of such an exclusion. As explained above, the exclusions in Schedules 1 and 2 only apply to specified clauses of the Bill and clause 48 is not amongst them.
The fourth question, and perhaps the most worrying of all to devolved administrations, is whether the UK could make use of the reserved powers under clause 48 not only to influence the future trajectory of tax devolution, but to argue that existing “tax breaks” provided by the devolved administrations are distortive or harmful subsides that are now within the competence of the UK to remove. There are a number of “grandfathering” provisions preserving existing arrangements even when they would otherwise contravene the Bill, but there are no such provisions in relation to clause 48 (though perhaps understandably given that the Bill leaves detailed regulation of subsidies to a future occasion). Equally, there is no guarantee of a de minimis level of subsidy that will automatically be left alone, which raises the possibility that subsidies that were too small to attract the attention of EU state aid law may be vulnerable to attack under the powers reserved to the UK by clause 48.
It must be emphasised that we know very little about the likely scope, approach and even existence of the subsidy regime that the UK may implement under the powers reserved by clause 48. There may also an opportunity for the devolved administrations to give or withhold legislative consent once such a regime is proposed and is impact on tax devolution becomes clearer. Hence, my claim here is not that clause 48 represents a direct or immediate attack on the tax competences of the devolved administrations. It is instead that the clause provides a wide gateway for the UK to argue in the future that “tax breaks” provided by the devolved administrations represent harmful subsidies and that they can be removed by the UK notwithstanding that they otherwise fall within devolved competence.
The consequences for devolution
As an EU member state, the UK and its constituent parts have long been subject to EU state aid law and are likely to remain subject to WTO rules on subsidies. Indeed, the Scottish administration has for several years been involved in negotiations on the EU state aid status of a favourable tax regime for air travel in the Highlands and Islands. The application of subsidy control to tax measures is not novel. It is also understandable that the UK might wish to exert such control after the Brexit transaction period, not least to guarantee compliance with its obligations under WTO law and under the terms of any relevant trade agreements. From this perspective there is a clear rationale for the reservation of subsidy control in clause 48 as well as the apparent inclusion of taxation.
This said, devolved administrations could be forgiven for a degree of alarm at the blanket nature of the reservation in clause 48; the lack of detail on the extent or scope of the UK’s post-Brexit subsidy control regime; the uncertainty about the interaction of this regime with tax devolution; and the lack of clarity on grandfathering and de minimis arrangements. To the question “can we now provide a tax break without being vulnerable to this new reserved power” my answer is “who knows?”. This seems rather an unfortunate side-effect of a Bill that is not primarily about tax, and the devolved administrations would do well to seek urgent clarification.
Many thanks to the colleagues who have reviewed this post and provided helpful suggestions. Any remaining inaccuracies are mine alone.
 These differ between Scotland, Wales and Northern Ireland but include full devolution of some property and environmental taxes and limited income tax powers: see in more detail Dominic de Cogan, Tax Law, State-building and the Constitution (Oxford, Hart, 2020) Ch 2.
Dominic de Cogan is a Senior Lecturer in Tax Law at the Faculty of Law, University of Cambridge, and a Fellow of Christ’s College, Cambridge. He is one of the Directors of the Tax Research Network and he is a member of the Tax Law Review Committee of the IFS. In addition to Tax, Dominic teaches on the Administrative Law, Equity and Law of Succession courses, and he has recently published the book Tax Law, State-Building and the Constitutionwith Hart Publishing.