Because not always B comes after A: Critical Reflections on the new Article 12B of the UN Model Tax Convention on Automated Digital Services

Abstract

On April 20th, 2021, the UN Tax Committee approved the final version of the new Article 12B to be incorporated into the 2021 version of the UN Model Tax Convention. In the absence of a Permanent Establishment or physical presence of the service provider in the Source State, Article 12B allows a Contracting State to tax income from automated digital services paid to a resident of the other Contracting State on a gross basis at the rate negotiated bilaterally with an option to the taxpayer to pay tax on a net profit basis. The paper analyzes the new article from a critical perspective and argues that: 1) The new article is unnecessary as the alleged need for the new article is only the result of the restrictive and incorrect reading of Article 12A of the UN Model Tax Convention 2017 made by the Commentaries to the Model. 2) The new article is not only unnecessary but also counterproductive as it jeopardizes the institutional prestige of the Committee on Fiscal Affairs, extraordinarily and unnecessarily reduces the scope of application of Article 12A, exacerbates the already severe problems of conceptual delimitation between Fees for Technical Services and Automated Digital Services and, therefore, between Articles 12A and 12B and, finally, introduces serious asymmetries in the treatment of these two types of services. The paper closes with some advice for those States that have negotiated conventions containing Article 12A or similar provisions and intend to retain their taxing rights on automated digital services without the need to renegotiate their conventions.