Taxation of cross-border digital transactions: development of approaches to income classification

Abstract

The subject. The developing approaches towards the classification of various types of income received as a result of electronic transactions for the purposes of domestic tax legislation and double tax treaties at the level of international tax governance and at the level of Russian tax legislation and practice. The aim of this paper is to test the hypothesis that the legal approach and criteria developed in the course of work of global tax governance institutions (OECD and UN) towards income classification from cross-border transactions in electronic form can be used as a basis for legal approach towards this issue in Russia. The authors use the methods of comparative legal analysis and logical-analytical method. In particular authors perform the detailed review of the related provisions of OECD and UN Model Tax Conventions, commentaries to them and global tax governance expert group’s position and contrast it against the Russian legal practice relating to the subject. The main results, scope of application. Uncertainty in the income classification may arise for almost any type of digital transactions, since income received can fall under at least three different categories. Incorrect legal classification may result in double taxation, non-taxation and distortion of neutrality. There is still ambiguity in the development of international consensus approach towards the issue. There are developing approaches to the characterization of income in the comments to the OECD and UN Model Tax Conventions, however, they can hardly be called fully elaborated due to the specific nature of the digital transactions. The similar situation can be observed in Russian tax legislation where the issue of digital transactions creates a lot of uncertainty. The analysis of domestic court practice indicates the absence of the national approach to the classification of income due to the small number of court cases. On this basis, an attempt was made to form a theoretical and methodological model of classification of digital payments for the purpose of applying the corporate income tax, based on the provisions of domestic law and recommendations of OECD and the UN. Conclusions. The authors find that despite of the presence of some guidance towards characterization of income from digital transactions at the level of OECD and UN a stable legal framework is strongly needed in the domestic tax law. The approach towards classification proposed in this article can be used as a reference point for further academic and practical discussion.