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Articles 1 - 30 of 40
Full-Text Articles in Law
Deeper Into The Knight: Exploring Deans Knight And Its Effects On The Canadian Gaar, Jinyan Li, Marshall Rothstein, Steve Suarez, Jeffrey Trossman
Deeper Into The Knight: Exploring Deans Knight And Its Effects On The Canadian Gaar, Jinyan Li, Marshall Rothstein, Steve Suarez, Jeffrey Trossman
Articles & Book Chapters
This article discusses the most recent decision of the Supreme Court of Canada in Deans Knight Income Corporation v. Canada (2023) and explores its implications for the Canadian GAAR.
Interlinking Between Income Tax, Citizenship And Democracy? A Case Study Of Canada And China, Jinyan Li
Interlinking Between Income Tax, Citizenship And Democracy? A Case Study Of Canada And China, Jinyan Li
Conference Papers
The interlink between taxation, citizenship and democracy appears to be obvious in Western democracies: citizens are voters, taxpayers and beneficiaries of public spending funded by tax revenues. The literature on the politics of taxation suggests that democratic institutions affect taxation at every stage of the policy-making process, the type of elections and governance model influence the level of redistribution and complexity of the tax system, democracies generally choose policies that are more favorable to the poor than non-democracies, the tax mix varies with the nature of the political regime, and more repressive governments rely less on personal income taxation. Political …
The Future Of The Corporate Form In Income Tax: A Case Study Of Canada, Jinyan Li
The Future Of The Corporate Form In Income Tax: A Case Study Of Canada, Jinyan Li
All Papers
A corporation is nothing but a piece of paper. And yet, this piece of paper enjoys the status of a person and has an independent identity as a taxpayer (the “separate entity principle”). It can generate tremendous value for its shareholders through tax savings resulted from tax deferral, tax shifting, and tax subsidies. Why does tax law allow such value to exist? Is there any hard line constraining the scope of the tax benefits associated with the corporate form? To what extent can the two pillars (Pillar One and Pillar Two) crush the corporate form? What is the future of …
Introducing A Global Minimum Tax (Pillar Two) In Canada: Some Knowns And Unknowns, Jinyan Li
Introducing A Global Minimum Tax (Pillar Two) In Canada: Some Knowns And Unknowns, Jinyan Li
Articles & Book Chapters
This paper provides a high-level overview of Pillar Two Global Minimum Tax in terms of its policy objectives, technical design and implications for Canada. After teasing out some significant known and unknown challenges, it offers some thoughts on whether, and if so, how and when Canada can proceed with implementation.
Canadian Qdmtt Challenges, Jinyan Li, Angelo Nikolakakis, Jean-Pierre Vidal
Canadian Qdmtt Challenges, Jinyan Li, Angelo Nikolakakis, Jean-Pierre Vidal
Articles & Book Chapters
Nobody believes that Canada is a tax haven. The fact remains that the effective tax rate of certain entities could be less than 15%. If nothing is done, Pillar Two could therefore apply and taxes that naturally accrue to Canada could end up in foreign hands. We must therefore find a solution and the most obvious is that of adopting a qualified domestic minimum top up tax. Other solutions are possible, but they seem less attractive. A QDMTT still presents some challenges. These challenges include sharing with the provinces, determining the priority to be given to certain foreign taxes relating …
The Pillar 2 Undertaxed Payments Rule Departs From International Consensus And Tax Treaties, Jinyan Li
The Pillar 2 Undertaxed Payments Rule Departs From International Consensus And Tax Treaties, Jinyan Li
Articles & Book Chapters
The OECD released pillar 2 model rules last December to provide a template for domestic legislation to implement the agreement reached on October 8, 2021, by almost 140 inclusive framework members on a two-pillar solution to address global ta challenges. The model rules are limited to the income inclusion rule (IIR) and undertaxed payments rule (UTPR) (collectively known as the global anti-base-erosion (GLOBE) regime) in the October agreement. However, and rather surprisingly, the meaning of the letter “P” in the UTPR was effectively changed from payments to profits in the model rules. There was little, if any, public discussion about …
The Misuse Or Abuse Exception: The Role Of Economic Substance, Jinyan Li
The Misuse Or Abuse Exception: The Role Of Economic Substance, Jinyan Li
Articles & Book Chapters
The “misuse or abuse” exception under subsection 245(4) of the Income Tax Act draws the line between acceptable and unacceptable tax avoidance. As a “safety valve” or “relieving provision,” this exception has proved to be the “most crucial and controversial single factor in the application of the GAAR.” Whether a transaction that lacks economic substance is subject to the general anti-avoidance rule (GAAR) is the question considered in this chapter.
The Global Tax Agreement: Some Truths And Legal Realities, Jinyan Li
The Global Tax Agreement: Some Truths And Legal Realities, Jinyan Li
All Papers
With much pomp and ceremony, it was announced that member jurisdictions of the G20/OECD BEPS Inclusive Framework “agreed to a two-pillar solution to address the tax challenges from the digitalization of the economy” (the “Two-Pillar Agreement”) This agreement has been hailed by some as “historic”, “momentous”, “revolutionary”, but criticized by others as “harmful to developing countries”, cartelistic power grabbing by a few powerful countries, or neocolonialism. So, is the agreement a cause for celebration or the opposite? What is the chance of the Agreement become real law? In this article, I try to first explain what the two-pillar agreement is …
Finding The Purpose Of Tax Treatyprovisions Under Gaar: Lessons From Alta Energy, Jinyan Li
Finding The Purpose Of Tax Treatyprovisions Under Gaar: Lessons From Alta Energy, Jinyan Li
Articles & Book Chapters
Establishing the object and purpose of tax treaty provisions lies at the heart of applying antiabuse rules, such as general antiavoidance rules under domestic law and the principal purpose test (PPT) in tax treaties. Tax planning arrangements like treaty shopping, designed to obtain treaty benefits, are not abusive unless they contravene the object and purpose of the provisions relied upon by the taxpayer.
A Critique Of The Private Law Approach To Tax Interpretation In Brazilian Scholarship, Ivan Ozai
A Critique Of The Private Law Approach To Tax Interpretation In Brazilian Scholarship, Ivan Ozai
Articles & Book Chapters
In this paper, I point out that since the late 1960s, Brazilian tax law scholarship has increasingly rejected any attempt to integrate economic perspectives in the interpretation of tax legislation. The prevailing theory suggests that tax jurisdictions established in the Brazilian Constitution should be interpreted based on concepts from private law and should disregard any consideration of the economic context referred to by the constitutional legislator. Building on Luhmann’s systems theory, which suggests that operational closure of the legal system requires cognitive openness to other social subsystems, I argue that the predominant Brazilian tax theory (which I call private law …
Repurposing Pillar One Into An Incremental Global Tax For Sustainability: A Collective Response To A Global Crisis, Jinyan Li, Sophie Chatel
Repurposing Pillar One Into An Incremental Global Tax For Sustainability: A Collective Response To A Global Crisis, Jinyan Li, Sophie Chatel
Articles & Book Chapters
This article proposes to repurpose the OECD/IF Pillar One Blueprint from a taxing rights reallocation mechanism into an incremental global tax for sustainability. With a common goal and DST-like feature for simplification, the proposal aims to ease the negotiation of essential and drastic simplifications required to deliver a workable solution.
Repurposing Pillar One Into An Incremental Global Tax For Sustainability: Some Blue Sky Thinking In The Midst Of Global Crisis, Jinyan Li, Sophie Chatel
Repurposing Pillar One Into An Incremental Global Tax For Sustainability: Some Blue Sky Thinking In The Midst Of Global Crisis, Jinyan Li, Sophie Chatel
Articles & Book Chapters
In this article, the authors make a case for repurposing the OECD Pillar One from a mechanism for reallocating taxing rights to a global tax on the largest and most profitable MNEs’ market-based profits. Such global tax would have the hybrid features of a net-basis corporate income tax and a turnover-basis digital services tax through a conversion formula that ensures a low-rate DST on sales can replicate a higher rate CIT on a country’s share of the profit determined using under the formulary allocation method. More importantly, the authors instill a common purpose of the international tax consensus – to …
A Different Unified Approach To Global Tax Policy: Addressing The Challenges Of Underdevelopment, Tarcisio Magalhaes, Ivan Ozai
A Different Unified Approach To Global Tax Policy: Addressing The Challenges Of Underdevelopment, Tarcisio Magalhaes, Ivan Ozai
Articles & Book Chapters
Experts from the North have long tried to teach countries in the South how to tax. For decades, they assumed the main challenges were domestic and there was a right answer to be found somewhere in the developed world that could be replicated everywhere else. Only more recently have they dedicated more attention to the international realm, yet their solutions remain tied to technical rules designed by a few specialists, as exemplified by the OECD Secretariat’s “Unified Approach” for the taxation of the digital economy. From a critical and historical socio-legal perspective, this Article argues that such technocratic approaches are …
Tax Reform: A Missing Piece In Canada's National Housing Policy, Jinyan Li
Tax Reform: A Missing Piece In Canada's National Housing Policy, Jinyan Li
All Papers
No abstract provided.
Digitalization And International Tax Dispute Resolution: A Window Of Opportunity For Britacom, Jinyan Li, Nathan Jin Bao, Shanghua Hu, Wei Hu, Matias Zerbino
Digitalization And International Tax Dispute Resolution: A Window Of Opportunity For Britacom, Jinyan Li, Nathan Jin Bao, Shanghua Hu, Wei Hu, Matias Zerbino
Articles & Book Chapters
Digitisation technologies are facilitating and transforming tax administration and dispute resolution in various ways. This paper presents some existing and emerging best practices in digitalized tax administration and smart dispute resolution. Inspired by the objectives of the Belt & Road Initiative and BRITACOM and these best practices, this paper suggests that BRITACOM take advantage of digitisation and seize upon the unprecedented opportunity to create a digitalized mechanism for resolving cross-border tax disputes among Belt & Road jurisdictions.
Taxation Of Intangibles, Jinyan Li, Angelo Nikolakakis
Taxation Of Intangibles, Jinyan Li, Angelo Nikolakakis
Articles & Book Chapters
This paper examines the tax treatment of intangibles in Canada and recent developments internationally. It suggests that the special features of intangibles and the rapid rise of intangibles as value-drivers in the global economy may render existing tax rules inadequate in defining Canada’s tax base and/or competing for investment in research and development in Canada. Recent developments at the international level (such as the BEPS Project) and national level (such as US 2018 tax reform and changes in Japan, UK and China to implement BEPS recommendations) may point to some directions for Canada to consider.
Tax Weapons In The Covid-19 War: A Preliminary Study Of Brazil, Canada, Denmark, Uk And Us, Jinyan Li, Nathan Jin Bao, Shanghua Hu, Matias Zerbino
Tax Weapons In The Covid-19 War: A Preliminary Study Of Brazil, Canada, Denmark, Uk And Us, Jinyan Li, Nathan Jin Bao, Shanghua Hu, Matias Zerbino
Articles & Book Chapters
The COVID-19 pandemic is killing hundreds of thousands of people and crippling businesses worldwide. There is no medical cure or vaccine yet. To prevent COVID-19 from crushing the health care system, non-essential activities have been paused and people are asked to stay home and keep “social distancing” in order to slow down the spread of the virus. Between 37 and 40 percent of jobs in the United States (US), the United Kingdom (UK) and Sweden can plausibly be performed entirely at home, but most workers cannot continue working. Such pause means no income for workers and no revenues for businesses …
Automation And Workers: Re-Imagining The Income Tax For The Digital Age, Jinyan Li, Arjin Choi, Cameron Smith
Automation And Workers: Re-Imagining The Income Tax For The Digital Age, Jinyan Li, Arjin Choi, Cameron Smith
Articles & Book Chapters
In the age of automation, more and more workers lose jobs or become gig workers, and the share of labour income in national income is expected to decline further. These developments threaten the sustainability of Canada’s 102-year-old income tax as a major source of government revenue and a key instrument for redistributing social income. The authors make the case for re-imagining the income tax to suit the digital age. They propose that all workers should be taxed the same, regardless of the private-law arrangements or technical means used to carry out the work. They call for a reconceptualization of the …
Beps And The Emerging Global Approach To Taxing Multinational Enterprises, Jinyan Li, Jin Bao, Huaning (Christina) Li
Beps And The Emerging Global Approach To Taxing Multinational Enterprises, Jinyan Li, Jin Bao, Huaning (Christina) Li
Conference Papers
The G20/OECD Base Erosion and Profit Shifting (BEPS) Project aimed at revising existing tax rules to align the taxation of profit with the location of economic activities and value creation (the “value creation principle”). It has received much commentary in literature and general debates and has been regarded as “the most significant re-write of the international tax rules in a century”, an opportunity to “rebuild a healthy scheme for allocating taxation rights”, having the potential to significantly alter the contours of the international tax regime, transforming the international tax regime, signaling a “new struggle over international taxation”, or representing the …
International Tax Simplification In South Africa Through Managing Substantive Complexity And Improving Drafting Efficiency, Jinyan Li, Teresa Pidduck
International Tax Simplification In South Africa Through Managing Substantive Complexity And Improving Drafting Efficiency, Jinyan Li, Teresa Pidduck
Articles & Book Chapters
This chapter discusses the complexity of the South African international tax legislation in terms of both its substantive complexity and drafting complexity. Substantive complexity is established by examining the current legislation governing tax jurisdiction, the taxation of resident taxpayers and non-resident taxpayers as well as international tax incentive measures and anti-avoidance rules. Drafting complexity is established by comparing the South African Income Tax Act to the Canadian Income Tax Act in respect of the drafting of individual provisions and arrangement of provisions. The chapter recommends ways to simplify the South African international tax legislation by: (a) accepting substantive complexity that …
Value Creation: A Constant Principle In A Changing World Of International Taxation, Jinyan Li, Nathan Jin Bao, Huaning Li
Value Creation: A Constant Principle In A Changing World Of International Taxation, Jinyan Li, Nathan Jin Bao, Huaning Li
Articles & Book Chapters
The authors consider the new nomenclature of value creation in terms of its meaning, theoretical basis, and importance in the context of the international taxation of business profits. The authors’ central claim is that the principle of value creation is a profound elaboration of the doctrine of economic allegiance, which is the theoretical basis for the current international tax system; and that international tax norms, such as the arm’s-length principle, are meant to give effect to the doctrine of economic allegiance (and now to the principle of value creation). As demonstrated by the Organisation for Economic Co-operation and Development/Group of …
The International Tax Environment And Simplification Of South African Tax Legislation: A Double-Edged Sword, Jinyan Li, Teresa Pidduck
The International Tax Environment And Simplification Of South African Tax Legislation: A Double-Edged Sword, Jinyan Li, Teresa Pidduck
Articles & Book Chapters
In this paper, we examine the relationship between the international tax environment and legislative complexity in South Africa’s international tax system. We suggest that the international tax environment is a double-edged sword. It causes complexity in South Africa’s tax legislation as it largely responds to the needs of OECD countries and produces tax rules to deal with ‘sophisticated’ tax problems and taxpayers (such as multinational enterprises). When such rules are transplanted into South Africa, they are typically more complex than local rules dealing with local taxpayers. On the other hand, the international tax environment offers ideas for ‘scientific’ drafting of …
Consultation Paper On Tax Planning Using Private Corporations, Jinyan Li
Consultation Paper On Tax Planning Using Private Corporations, Jinyan Li
Commissioned Reports, Studies and Public Policy Documents
I am a tenured professor at Osgoode Hall Law School of York University, teaching and researching in the area of tax law. I am the lead author of Principles of Canadian Income Tax Law (9th ed.) (Li, Magee and Wilkie, 2017) and International Taxation in Canada (3rd ed.) (Li, Cockfield and Wilkie, 2014). I am also the lead editor of Income Tax at 100 Years (Li, Wilkie and Chapman, 2017). I am a member of Panel of Experts Reviewing Federal Tax Expenditures (the Expert Panel) (http://www.fin.gc.ca/access/tt-it/rfte-edff-eng.asp), but was not involved in drafting the consultation paper on Tax Planning Using Private …
Chapter Viii: Protecting The Tax Base In The Digital Economy, Jinyan Li
Chapter Viii: Protecting The Tax Base In The Digital Economy, Jinyan Li
Articles & Book Chapters
Protecting the tax base in the digital economy is Action 1 of the Organisation for Economic Co-operation and Development (OECD) project on Base Erosion and Profit Shifting (BEPS). The reason is simple: “International tax rules, which date back to the 1920s, have not kept pace with the changing business environment, including the growing importance of intangibles and the digital economy.” They can no longer distribute taxing rights fairly among countries and adequately define a country’s tax base.
Celebrating The Centennial Of The Income War Tax Act, 1917: The Future By The Light Of 100 Candles, Jinyan Li, J. Scott Wilkie
Celebrating The Centennial Of The Income War Tax Act, 1917: The Future By The Light Of 100 Candles, Jinyan Li, J. Scott Wilkie
Articles & Book Chapters
No abstract provided.
Source Of Income And Canadian International Taxation, Jinyan Li, J. Scott Wilkie
Source Of Income And Canadian International Taxation, Jinyan Li, J. Scott Wilkie
Articles & Book Chapters
No abstract provided.
Legitimate Expectations In Canada: Soft Law And Tax Administration, Sas Ansari, Lorne Sossin
Legitimate Expectations In Canada: Soft Law And Tax Administration, Sas Ansari, Lorne Sossin
Articles & Book Chapters
This chapter examines the relationship between legitimate expectations and soft law. In what circumstances can an agency’s guidelines create law — or at least legally enforceable expectations? At first glance, the answer would appear obvious. The key reason for developing soft law is to provide guidance and transparency as to the process (and sometimes the substance) of administrative action. Soft law by its nature gives rise to expectations. Whether those expectations, in turn, give rise to legal effects is decidedly less clear. In fact, this question has vexed Canadian administrative law. Nowhere are questions of soft law and legitimate expectations …
Registered Savings Plans And The Making Of Middle Class Canada: Toward A Performative Theory Of Tax Policy, Lisa Philipps
Registered Savings Plans And The Making Of Middle Class Canada: Toward A Performative Theory Of Tax Policy, Lisa Philipps
Articles & Book Chapters
Politicians across Canada’s political spectrum strive to position themselves as defenders of the middle class, and tax policy is a prime vehicle for making this pitch. Any tax reform proposal can be examined critically to evaluate its likely distributional impacts and how well these map onto specific definitions of the middle class. This article attempts, however, a different project. Drawing on the ideas of Judith Butler, it analyzes instead how tax policy produces middle-class identity through the very process of claiming to advance middle-class interests. The case study for this purpose is the rise of tax incentives for saving as …
Implementation Of Arbitration Decisions In Domestic Law, J. Scott Wilkie
Implementation Of Arbitration Decisions In Domestic Law, J. Scott Wilkie
Articles & Book Chapters
Arbitration, even if it seems simply providing for the possibility of arbitration, is increasingly attracting attention as a possible means to discipline the resolution of otherwise potentially intractable international tax controversies concerning the allocation of taxing rights under tax treaties.While perceived, though not without reservation, to be a potential welcome addition to a typical mutual agreement procedure (MAP) patterned on article 25 (“the MAP article”) of the OECD Model Tax Convention on Income and Capital(“the OECD Model”) in the form of article 25(5), other provisions of article 25, notably its “interpretive” and “application,”and “legislative”,aspects and contemplated recourse to a “joint …
Taxing State-Owned Enterprises: Understanding A Basic Institution Of State Capitalism, Wei Cui
Taxing State-Owned Enterprises: Understanding A Basic Institution Of State Capitalism, Wei Cui
Osgoode Legal Studies Research Paper Series
State-owned enterprises (SOEs) have become active investors in global markets in the last decade, challenging policymakers in Canada and other OECD countries to confront the logic of “state capitalism.” This article develops a novel theory of the income taxation of SOEs. Many countries subject their SOEs to the income tax, but economists tend to dismiss SOE taxation as superfluous. A contrary, popular belief holds that SOE taxation is necessary to ensure fair competition. This article shows that both views are mistaken and explains SOE taxation in terms of the agency problem for dividend policy. Because typical devices to give private …