Nexus Requirements for Taxation of Non-residents' Business Income: A Normative Evaluation in the Context of the Global Economy

This book explores one of the most fundamental issues of international tax law: the conditions under which a state may assert a taxing claim over business income derived by a person who is neither its national nor its resident. The term “nexus” or “genuine link” is commonly used in international tax scholarship to describe such basic requirements for the exercise of income tax jurisdiction. When it comes to non-residents, income tax is intimately connected to the notion of “source”, in that every state has the right to tax income derived from sources located within its territory. The main purpose is to analyse the appropriateness of different nexus norms used by states in the taxation of non-resident business income. Particular attention is drawn to developments associated with the global economy, e.g. the introduction and expansion of e-commerce and the rise in cross-border services trade. Methodologically, the value-oriented approach is followed, analysing the research question in light of traditional tax policy benchmarks, such as equity, neutrality and administrability. A substantial part of the analysis is devoted to the permanent establishment (PE) concept, which acts as a general proxy for the source of business income in a tax treaty context. One conclusion is that the use of a PE nexus in its traditional forms (i.e. fixed place PE and agency PE) places inappropriate restrictions on the tax jurisdictions of the “market states”, where the customer base for taxpayer goods and services is located and important benefits related to the derivation of non-resident income are provided. This book advocates an evolutionary approach through a new PE-deeming rule based on a de minimis revenue threshold being added to tax treaties, supplementing traditional PE forms. This rule would allow a state to tax a non-resident taxpayer's business income as soon as he derives an ex ante specified amount of gross revenue from catering to customers located in that state, irrespective of physical presence. The proposal suggests that the administrative concerns surrounding the application of such a rule can be resolved in a comprehensive manner, e.g. by relying on an interim withholding regime in respect of business-to-business payments.