De mondiale minimumbelasting van de OESO als oplossing voor de belastingstelsel in de 21e eeuw?

Since its conception, Pillar Two has drawn a lot of attention from tax academics, practitioners, policymakers and even from the mainstream media. Rightfully so, because it is set to bring the international tax system into a new era. Pillar Two consists of a global minimum tax, referred to as the Global anti-Base Erosion (GloBE) rules, and a Subject-to-Tax Rule. This thesis mainly focusses on the GloBE rules, which impose a minimum corporate income tax of 15% on in-scope multinationals in each jurisdiction in which they operate. By doing so, they seek to address some of the challenges of the current, out-dated international tax framework in light of the ever increasing digitalisation and globalisation, most notably, base erosion and profit shifting and tax competition. In that way, Pillar Two should contribute to a more effective tax system for the 21st century. This thesis aims to provide an extensive analysis of Pillar Two, and in particular the GloBE rules, in light of the following three criteria: effectiveness, complexity and political feasibility (broken down into tax revenues for developing countries and mutual trust). On the basis thereof, flaws in the current design are identified and recommendations for improvement are made. Through these recommendations, Pillar Two should ultimately become more suitable, to be understood in light of the above criteria, to tackle BEPS and limit tax competition, and hence, to make the international tax framework more fit for the 21st century. In the light thereof, the main research question that will be addressed is the following: "To what extent can Pillar Two, and in particular the Global anti-Base Erosion rules, be improved in order to be best suited to contribute to an effective tax system by addressing both base erosion and profit shifting (BEPS) and tax competition?" In order to answer this question, the thesis is composed of five main parts. After providing an overview of the methodology, a definition of the concept "minimum tax", and a brief overview of a selection of different minimum taxes in Parts I and II, Part III provides a detailed, legal-technical analysis of the GloBE rules and the Subject-to-Tax Rule. First, the operation of the GloBE rules is analysed using a five step method taxpayers should apply when making their GloBE calculations. Afterwards, a brief overview is given of some of the particularities of the EU directive. A final chapter is dedicated to the operation of the Subject-to-Tax Rule. Part IV contains the main evaluation. To conduct this evaluation, an integrated approach was adopted. This means that particular design elements are analysed under the criterion where they are most relevant, but any evaluation also immediately takes into account the other criteria. This integrated approach allows to cover a wide range of design elements and avoids unnecessary repetition or fragmentation. This part does not exclusively focus on Pillar Two, but also more broadly analyses whether, from the outset, tax competition in general should be addressed. Based on the evaluation conducted in this Part, Part V provides several recommendations in order to improve the design of Pillar Two to make it more suitable to tackle BEPS risks and limit tax competition. This thesis finds that Pillar Two does indeed improve the current international tax system when it comes to countering tax avoidance and tax competition. However, because of its design, Pillar Two is more suited to limit tax competition than to combat tax avoidance. Therefore, the study recommends not abolishing CFC regimes in light of the introduction of Pillar Two. Nevertheless, the Pillar Two rules are flawed in several places. This thesis therefore suggests some improvements, the most important of which are listed below. First, this thesis recommends the use of a single accounting standard for all calculations. Although this increases complexity, it ensures that effectiveness is also increased by ensuring neutrality between different multinationals and avoiding competition in accounting standards. A second recommendation is to phase out and abolish the so-called carve-out, a reduction of the taxable base with a routine return from economic, substantive activities. A less far-reaching alternative is to drastically narrow the scope of the carve-out so that it focuses only on certain regimes that serve a laudable purpose. Finally, the thesis also recommends revising the derogatory and favourable regime for certain tax credits such that it would be more in line with reality and would prove to be a less interesting alternative for states to still engage in tax competition. An often-cited criticism is that the rules are extremely complex. The thesis therefore makes some recommendations to alleviate the complexity, including by removing some unnecessary but complex concepts. In addition, the study stresses the importance of safe harbours. Finally, the study looks at political feasibility. In that respect, an often-heard criticism from developing countries is that they will not collect enough revenue from the Pillar Two rules. The study shows that this criticism is justified, but has lost some importance since the introduction of the QDMTT, which gives low-tax countries the primary right to collect the minimum tax. Solutions to increase tax revenues for developing countries were examined, but were not adopted as recommendations for several reasons. Finally, the thesis also finds that the rules clearly took into account the aspect of mutual trust. Again, the study makes recommendations, including the introduction of a peer review system.