Reformulating corporate residence: a coherent response to international tax avoidance

Thesis

This thesis analyzes the concept of corporate residence, with particular reference to the law in the UK and Canada. It explores why corporate residence is relevant in tax policy, how corporate residence is understood in law, and how revenue authorities respond to the use and alleged 'abuse' of residence rules. Part I argues that the residence of taxpayers generally (individual or corporate) remains a relevant factor in international tax design, that taxation of corporations on the basis of residence has some justification, but that there is a disjunction between meaningful residence-based taxation and current definitions of corporate residence in domestic law and tax treaties. The formulations of residence based on incorporation, central management and control, and place of effective management, particularly as applied to multinational enterprises, are considered and are found to be deficient. Part II critically analyzes the major policy responses of the UK and Canadian governments to the exploitation of corporate residence. It argues that key legislative and administrative responses to international tax avoidance activities, for both outbound and inbound investment, are purportedly based on the acceptance of formal corporate residence yet undermine that concept in an effort to impose tax or refuse treaty relief based on where economic interests actually exist. The responses considered are the application of controlled foreign companies legislation to offshore subsidiaries, the invocation of treaty anti-abuse rules with respect to offshore intermediaries, and the use of overarching general anti-avoidance measures to challenge varied structures that rely on offshore entities. These haphazard anti-avoidance rules are overlaid with revenue authorities' indignation at the motivations that underlie many corporate relocations. It is argued that a more coherent approach would be to focus on the objective reality or unreality of corporate establishment, by reformulating corporate residence in domestic law and tax treaties.

Authors: Loomer, G

• Publication date: 2011
• DOI: 10.5287/ora-n1bg6wryn
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: tax planning; residence; corporations; tax avoidance; companies; resident; multinational enterprises
• Subjects: Taxation; Economics; International taxation; Law; International business