Salle / Hall : Bibliothèque CUJAS - Cerdoc
Horaire / Schedule : 15h05 - 16h25
Président de séance : Tomasz Nowak (Associate Professor, University de Lodz - Pologne)
Langue / Language : English
At the time when an international cooperation in the field of trade and labor migration are increasing, problems connected to cross-border taxation are becoming more and more common. That requires cross-border exchange of taxpayers data between tax authorities of different coutries. The exchange of data has been regulated in a number of legal acts, in particular under the Convention on administrative assistance in tax matters from 1988th or under the provisions of double taxation agreements. There are also different regulations related to that issue in the European Union. Creation of the internal market resulted in economic events that could potentially cause the tax effect in more than one country. Cross-border exchange of data in the field of public law obligations may refer to several planes, not only the data needed to impose tax liabilities, but also data needed to enforce tax liabilities. Because of the fact that range of taxpayer’s data that are communicated to tax authorities of other country is wide, it is an important issue is to protect the rights of the taxpayer. The exchanged data are sensitive data. They often refer not only to e. g. the amount of income, but also the taxpayer's trade relations with other entities, business secrets. Apart from the obligation to ensure the confidentiality of the data, it is necessary to ensure an adequate level of protection of the rights of the taxpayer. The taxpayer is often not at informed about the cross- border exchange of information concerning him. He is not aware that the data are the subject of the cross- border exchange, which tax authority has requested for the information and for what purpose. Moreover, the taxpayer has no opportunity to respond to the content of the data or the accuracy of the legal procedure of their acquisition. The data obtained from tax authorities of one country may affect the outcome of legal proceedings that has been taken against the taxpayer in another country. In view of the concept of open government it is necessary to inform the taxpayer about the data that has been exchanged and make them available for him (e. g. by the taxpayer’s safe profile secured by the digital signature). The taxpayer should be also informed about the reason for the cross-border exchange of data, and the name of the country which requested for the data.
The accessibility of the law for any taxpayers remains an important issue in the XXIst century. But the notion of accessibility can be understood in two different ways. It can mean the simple fact of being able to read the legal dispositions on tax matters. And it can also mean to be able to understand all of those dispositions without being a tax law specialist. The specialization and complexity of the tax topic generate a factual inequality between those who have the tools and the capacity to understand the law and those who don't. Because the law is complex and may be unclear, there is a margin of interpretation that can lead to conflict between taxpayers and the tax administration. However, the digital era offers new possibilities by improving the transmission tools of information. By doing so, it gives new capacity for taxpayers regarding the material accessibility of the tax law trough a transparency mechanism. It might reduce the factual gap between taxpayers by improving the publication of interpretation propositions’ which were made by the tax administration. However, it is possible to wonder if the new technologies give us a better right of access in the tax matter.
In France the right of access to public information has been reinforced due to the European directives that affect the norms of publications and create a right to reuse public data. The norms of publications have evolved because of the digital tools, but not only for that reason. In fact, what is interesting is that, the French system for a long time had an automatic publication of the tax law and interpretation made by the tax administration with a limited accessibility throughout published fiscal official journals. It is undeniable that the new technologies have improved that material aspect of accessibility. But the non material aspect has fully changed. To prevent the taxpayers from the modification of the administrative interpretation of tax laws, the publication creates a juridic opposability to the tax administration with its own interpretation. A taxpayer that followed the interpretation of the tax administration cannot be prosecuted even if the interpretation is non conform to the law. The problem with the new technologies is the real visibility of the evolution of those interpretations. In a certain way, it has threatened the stability of the protection system against the instability of the tax interpretation made by the tax administration. To be more precise, the publication of those interpretations has been the subject of an important reform. However, that reform was not a simple modification of the publication format for papers to online publication, but was also a modernization of the interpretations which has led several times to the suppression of old published interpretations. Also, there is a risk is to suppress interpretations without respecting the due formalism consisting in a new publication that canceled explicitly or implicitly the old one. The Open Government doesn't mean a full transparency or a full access to tax information or tax interpretations, especially regarding the personal interpretations like agreements. And the online information cannot always be regarded as an opposable interpretation to the tax administration, such as an email sent by a tax agent to a taxpayer. Those examples show us the complexity of the real efficiency of the right to access on the tax subject that persists in the digital era.
In many countries which implemented it, Value Added Tax represents the main tax revenue and fraud it is subject to is thus crucial for governments. Europol estimates intra-EU VAT fraud only could represent 40 to 60 billions euros of tax losses every year. Along with tax authorities, this missing trader fraud is a challenge for taxpayers, which could be held responsible for their business counterparties if these set up a carousel scheme. Besides making it possible to carry real-time tax audits and better identify this fraud, as it does in a rising number of countries, digital can be an opportunity to strengthen transparency between tax authorities and taxpayers, in order to better prevent fraud. The Russian tax authority’s approach illustrates it very well. By sharing with taxpayers an always larger volume of data about their counterparties, the tax authority makes it possible for the taxpayer to identify risks himself and avoid taking part to a fraudulent scheme. Russia is not the only one who started this journey towards this open governance framework: the Mexican tax authority also publishes a black list, thus being quite transparent with honest taxpayers.
The low tax performance is mainly result of the inability to mobilize internal fiscal resources, the tax incentives inadequate and very unequal, the difficulty of tax administration to recover the taxes owed and the ineffectiveness to improve taxation of certain sectors. The tax burden remained very low at around 10% of GDP, among the lowest in Africa. This issue is several years old and we haven’t made very much progress on it. So far, the country has not been able to find a solution to the problem. Too many tax reforms implemented have failed. The tax policy currently in force is inefficient. The gap between the citizens and authorities, between the tax administration and the taxpayers, is growing.
It is now time to deal with the problem differently, in a more fundamental way. The future fiscal stance and the implementation of tax reforms should consider the prevailing social environment and understand the difficulties in terms of the interrelation between the Malagasy and taxes. What is needed is a new fiscal social contract. Indeed, in a context where the failure of the concept of "citizen tax" is a reality, the new contract would, in a dialogic approach to redefine and guide tax policy. Moreover, the collaborative governance paradigm called the government to increase the transparency and accountability of its activities for the population. This new fiscal agreement would be the framework for dialogue between civil society, private sector and government.
This process of dialogue and negotiation is inevitably complex but it requires above all a democratic institution. The Malagasy concept fokonolona or community provides an ideal framework for such institutionalization of democracy. This is an institution for social and political dialogue, negotiation between the components of the state. The strength of Fokonolona lies indeed in solidarity and collective responsibility. This concept of fokonolona contains all the principles of life, specific to Malagasy. It already was the basis of the Malagasy society, even before the monarchy and continued to stake all regimes that have succeeded, namely colonial and republic now. This constancy is a proof that it is an institution that fits well with the culture and spirit of Malagasy society.