Object of taxation under digitalization

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National Research University «Higher School of Economics», Moscow, Russian Federation

Object of taxation under digitalization

Olga I. Lyutova

Abstract

taxation law legislation

The article investigates the problem of content change of the concept object of taxation in the Russian tax law on the path to digital economy. The purpose of the article is to analyze the provisions of the Russian tax legislation, international norms, as well as academic literature devoted to identification of certain new goods and phenomena as possible objects of taxation, thus updating the concept of the object of taxation itself. The development of information technologies generates the following unavoidable problems related to the object of taxation concept content, which allows reviving the discussion about the content of this tax and legal category: the impossibility to assess implementation operations as potential tax objects with the help of the classical triad «product, work, service»; recognition in certain situations (for example, in case of electronic money payment) as the object of taxation is not one, but a set of legal facts (cause of action); the need to establish the object of taxation through the so-called «tax relationship» between the object and the subject of taxation. In connection with the first problem, the author proposes to unambiguously define in the Tax Code the legal nature of transactions with digital products for tax purposes, treating them as a new type of service. The conclusion is based on the experience of international regulation and suggests supplementing the provisions of the Tax Code in terms of legal regulation of the concept taxation object as well as VAT taxation. The re-search of the second problem leads to the conclusion that it is necessary to clarify the rules of the Tax Code when the counterparties carry out taxable transactions, whose settlements are made with electronic money. In this situation, the object of taxation is not single, but suggests several legal facts-actions of the potential tax-payer. On the third problem the author raises the issues of identification of the taxpayer in case of certifying the taxable transaction by the digital signature analogue. Taking into account international experience, as well as national civil law regulations, it is considered necessary to include provisions on digital certificates and digital signatures in tax legislation.

Key words: electronic commerce, digital economy, tax object, legal fact, legal composition, digital goods, electronic money, «tax forming communication», analogue of digital signature

Introduction

The global character of the digitalization process allows researchers to seriously characterize the ongoing transformation of social and economic relations as a new (fourth) technological revolution. It is being shaped by the rapid development of information and communication technologies, which in turn increases the role of legal regulation of relations emerging in the digital society. This process is associated with an objective need for scientific reflection on a number of phenomena resulting from the digitalization and informatization of society, which has been repeatedly stated in legal literature (Habrieva, 2018:19; Blazheev, Egorova, 2020:5-13). There is also a growing need to address a number of practical issues related to legal support for the digitalization of the economy and other areas of public life.

In the legal doctrine it is becoming more and more relevant to carry out sectoral legal and interdisciplinary research on the current social and technological changes in terms of revising the classical notions used both in science and in the texts of normative acts. In tax law, this approach is already being implemented, for example, categories of tax legal personality (Lyutova, 2019:40-42), tax sovereignty (Andreev, 2018:13-16; Khavanova, 2017:34-38) and others. This is evidenced not only by numerous publications of articles, monographs and educational literature, but also by grants studying the processes of digitalization and related international integration directly through the prism of a sectoral approach.

A number of works on tax law pay considerable attention, as noted E.G. Belikov, to the issues of legal regulation of the objects of taxation definition in respect of taxes arising from activities in the markets for digital services (for example, in the field of electronic commerce, using the technology of distributed registers) (Belikov, 2019:23-26). Such problems require further research, which is conditioned by the impossibility to apply the traditional approach to the definition of the tax object in the new economic reality. The implementation of digitalization concept necessitates to clarify the object of taxation concept and to establish appropriate tax consequences in respect of new business models, for example, various types of electronic commerce in the form of sale of goods and trade in access to intangible assets and/or objects of intellectual property (Pokrovskaya, 2016:171). Some scholars argue that the object of taxation for such transactions is specific. For example, the income as a result of new digital processes, recognition of which as taxation object requires special tax structures allowing objectively assess, as well as fairly and efficiently withdraw part of the income without slowing down the pace of economic development (Koroleva, 2019:92).

We will be interested to look at the problem of revising the theoretical definition of the object of taxation concept in the new conditions and discussions on qualification of tax consequences of the sale of digital goods in electronic commerce. At the same time, doctrinal rethinking of the object of taxation concept has quite pragmatic goals: according to N.T. Mambetaliev's fair comment, “dynamically developing branch of e-commerce expands the list of objects subject to tax collection...” (Bukach, 2017:10-16). Thus, the definition of the taxation object adequate to the current realities will allow to objectively assess the tax consequences of entrepreneurial activity for business in conditions of digitalization, as well as to fairly and efficiently withdraw part of the income to the state treasury; this can be done without slowing down economic growth, while ensuring and protecting both private and public interests.

Subject of taxation definition in contemporary science

It should be noted that the issues of definition of the object of taxation concept occupy a significant place in the scientific works of domestic legal scholars specializing in tax law: K.N. Grigorov, O.O. Zhuravleva, M.F. Ivlieva, I.I. Kucherov, S.G. Pepeliaev, D.A. Smirnov, V.A. Churkin and others. The problems of determining the object of taxation in the conditions of economy digitalization, as well as the need to expand the list of the taxation objects with certain types of income are investigated; this issue is investigated, for example, with regard to the tax on professional income in the works of A.A. Kopina, S.M. Mironova, E.Y. Stetsenko and others.

The review of some foreign scientific works on tax law and taxation showed that there are scientific publications in the field of general theoretical concept of the obj ect of taxation and its relation to related concepts (Kucheryavenko, 2003:11-13).

At the same time, it may be noted that there is no consistent approach to the definition of the object of taxation concept and the need to establish criteria for attributing certain events to the taxation objects, which determines the relevance of the issue taking into account modern tendencies in the development of science and tax law practice.

It is traditional for Russian tax law to characterize the object of taxation by listing the phenomena related to it, an open list of which is contained in Article 38 of the Tax Code: sale of goods (works, services), property, profit, income, expense or other circumstance. As it is known, the legislative wording of the object of taxation concept is applied from the moment when the first part of the Tax Code of the Russian Federation came into force. At the same time, attempts to develop any qualifying features of the object of taxation, which would allow to unambiguously identify certain objects and phenomena as objects of taxation, as well as classifying them, have not been successful to date. However, researchers and practitioners specializing in tax law have formed two different approaches to the definition of the object of taxation concept, which can be conventionally denoted as economic and legal.

Representatives of economic sciences believe that the only right thing to do is to further develop the legislatively established idea to formulate the object of taxation concept exclusively by listing various objects. In this case, their task is to assess one or another object as to whether it is possible and/or necessary to establish liability to pay tax on it. This approach was studied in detail in the dissertation of A.V. Churkin, who was one of the first to raise the issue of object of taxation concept definition and its delimitation from related scientific categories. (Churkin, 2002:11).

Lawyers, in their turn, consider the object of taxation as a legal fact, entailing obligation to pay tax (Pepelyaev, 2001:89; Ivlieva, 1997:39). At the same time, only those legal facts that are conscious volitional actions of taxpayers or their results, namely, actions related to the sale of goods, works, services or income, are recognized as objects of taxation. As it is known, depending on the identification of an object as goods, works or services, the tax law establishes various legal and related financial consequences in respect of transaction (Articles 38-39 of the Tax Code), for example, in calculation and payment of VAT.

In our opinion, the initial refusal to develop criteria for determining the object of taxation, implemented in economic science, implies a high degree of subjective discretion of the state when classifying an object as one of those suggesting tax obligations. All this leads to the idea that, basically, taxes can be levied on almost anything. In any case, such judgments are found in the works of other authors as well (Karagusova, 1994:17). It would be impossible, therefore, to contrast the economic and legal approaches, as they are complementary and specific to each other. It should be remembered that economic science and legal theory have similar phenomena: the former studies how to produce, distribute and consume goods more efficiently, the latter studies how to do it rightly and legitimately (Napso, Napso, 2019:161). This allows for a balance in the expression of public and private interests through recognition of the coercive power of law, based on a reality analysis. Thus, at present, the phenomena listed in the Tax Code of the Russian Federation are recognized as the object of taxation, which have the statutory characteristics (monetary, quantitative, physical) and are legal facts and actions.

Under the circumstances the author asserts that it is possible to use the principles of economic analysis to develop models of legal regulation and specific rules. Studying the mutual influence of the economy on tax law, A. Raskolnikov, generally expresses similar thoughts, regardless of digitalization (Shaviro, 2014:455).

Challenges in defining the tax object in the digital era

In the context of implementation of the National Program “Digital Economy” in modern Russia, the three principal problems arising in the definition of the object of taxation concept are the following: objective impossibility to assess realized transactions as potential objects of taxation with the help of the classical triad of “product, work, service”; recognition that the object of taxation is not a single legal fact, but a set of legal facts; revision of the issue of establishing the object of taxation through the so-called “tax-forming relationship” of the object and subject of tax.

The first problem, connected with the lack of universality in the approach to identification of the phenomena as taxation objects through the triad “product, work, service” can be demonstrated in attempt to apply it to the digital goods typical for Intemet trade. There is currently no definition of such goods, as well as of the digital market where they are traded, both at the legislative level and in judicial and other law enforcement practice, as noted by experts (Kadar, 2015:342). In science, so far, there is only a discourse on the issue of assigning various types of cryptocurrencies to them (Savelyev, 2017:136-153). At the same time, a significant number of various products which hypothetically can be described as digital, are being traded. This means that transactions with such goods require adequate legal assessment, including in terms of their tax and legal consequences.

In reality, digital goods can, for example, be downloaded from the manufacturer's website, without the need to transfer its material carrier. This means that it can be realized by sending by e-mail or by uploading to the Internet, organizing appropriate access. Usually, digital products are texts, sounds and video files. It is often difficult to determine which type of product is a digital product, whether it acts as an asset, work or service. For example, in case a digital product is in the form of a temporary link to a training text file or video (audio) record on the site, the nature of such a legal fact is controversial in terms of the classic triad of “products, work, service”. From the point of view of tax law there is a question: Has a buyer purchased a training service, a license to use the site, a communication service or goods in the form of the training information itself? In case of identifying it as the goods transfer, can we talk about the transfer of ownership? No. Due to the limited time of use. From these positions, it turns out that in case of information transfer by reference to the consumer for his/her permanent use (both options, permanent and/or temporary access, are possible depending on the cost) the possibility to identify it as a product or service that does not have the appropriate result is highly disputable (for example, in case of purchasing a video lesson).

A good example is the European Union regulation of taxation issues concerning digital goods. The content and meaning of the European Union Directive allows to conclude that digital and electronic products should be recognized as “services provided electronically” (European Union Council Regulation № 282/2011 “Establishing Measures for the Implementation of Directive 2006/112 / EC on the General System of Value Added Tax (as amended)”). It also provides a list of such services including server software, hosting of clients' websites, remote maintenance of programmes and equipment, supply of software and its updating, supply of images, texts and information and access provision to databases, supply of music, films and games, including gambling, and political, cultural, artistic, sports, scientific and entertainment broadcasts and broadcasts, supplying distance learning. Thus, for all countries of the European Union, the sale of digital products is considered a new type of service. Since the Russian Federation does not participate in the documents of the European Union, its territory requires its own legal regulation concerning identification of digital products as works or services both at the level of national law and in the acts of the international communities of which it is a member. D.A. Mitin supposes that a good solution may be reached through establishing definitions of digital products and digital delivery as categories in the Russian tax legislation or in a special legislative act related to legal regulation of digital rights; it is also necessary to define the list of digital products. In his opinion, this will facilitate determination of the taxable entity in cases where digital goods are traded (Mitin, 2018:36-39). It should be assumed that in addition to the actual definition of the legal nature of digital goods, it is also essential to supplement the definition of the object of taxation concept in paragraph 1 of Article 38 of the Tax Code in terms of listing the services provided, and defining their types in analogy with the list presented in the European Union Directive 2006/112/EC. We also consider it logical to supplement Article 146 of the Tax Code with special rules related to calculation and payment of VAT on digital goods, understood in the meaning of electronic services. This would allow the law enforcer to unambiguously consider all digital deliveries as a new type of service, applying the relevant rules and tax rate.

From the point of view of determining the legal nature of new digital phenomena in order to attribute them to the taxation objects, it is interesting to assess the phenomenon of cryptocurrencies («virtual currencies») using the triad “product, work, service”. It is known that in the Russian Federation most transactions with cryptocurrencies are currently conducted outside of legal regulation, and cryptocurrencies themselves are not guaranteed or provided for by the Central Bank of Russia (Information of the Bank of Russia dated 04.09.2017 “On the use of private "virtual currencies" (cryptocurrencies)”). It is quite rightly noted in the analytical materials that, based on the requirements of modern legislation, cryptocurrencies (bitcoins, in particular) do not meet the requirements usually imposed on money; they cannot perform all their functions (Yermak, 2013).

Variants of qualification of bitcoin and other kinds of cryptocurrencies presented in Russian and foreign scientific literature are diverse. In fact, they are assessed as an asset that can be described as a component of an investment portfolio, foreign currency, quasi-currency, vouchers (Lambooij, 2014:140) and the like. Cryptocurrency is most often regarded as a type of property, as a commodity or a so-called «economic asset» (Matsuura, 2016:45-47).

It may be noted that legal regulation of the consequences of transactions made with cryptocurrencies in foreign countries is prior to the issue of determining their legal nature. For example, the most comprehensive tax and legal regulation of the use of block technologies and virtual money, both at the federal level and in the regulatory acts of states (subjects of the federation), has been created in the USA to date. Cryptocurrencies in this state are qualified as property, investment instrument or foreign currency (Wiseman, 2016: 416-440). Therefore, most often cryptocurrencies are identified with the help of known legal terms and constructions based on the so-called “barter” approach, which is implemented through the transfer of civil law terminology to tax relations.

Barter approach has also raised huge criticism, arguing that the rules created for transactions with traditional property do not take into account the fundamental feature of virtual currencies (the use as a means of exchange and mechanical application of old principles) and leads to poor results. This approach is assessed as imperfect, not feasible and/or difficult to implement from the perspective of promoting rules (Hampton, 2016:331, 334).

A similar approach to establishing taxation rules prior to determining their legal nature is applied in Russia. Thus, the Russian Finance Ministry believes that operations with cryptocurrencies should be taxed on personal income (Letter of the Ministry of Finance of Russia dated October 13, 2017 № 03-04-05 / 66994), recalling that in accordance with the provisions of Article 228 of the Tax Code of the Russian Federation, individuals should calculate and pay the tax themselves, receiving remuneration from individuals on the basis of civil law contracts. In other words, if one natural person sells bitcoins to another natural person, he/she should independently determine the tax base, report on the income received, calculate and pay the tax. In this case, the Ministry refers to the provisions of Article 41 of the Tax Code on the definition of income.

It should also be noted that a few years ago the Bank of Russia warned citizens and legal entities against the use of “virtual currencies” for the exchange of goods (works, services) or money in rubles and foreign currency (Information of the Bank of Russia dated January 27, 2014 “On the use of "virtual currencies"”, Bitcoin, in particular, when making transactions).

The second problem associated with the definition of the object of taxation concept in the digital age is the need to consider not a single legal fact, but their set as such object. An example is payment for goods traded with electronic money as the equivalent of real money (fiat, as it was called by John Maynard Case (Cesarano, 2008:124), the nominal value of which is set and guaranteed by the state, regardless of the value of the material it is made of or stored in the bank's vault), but traded only within a specific electronic payment system (Yandex. Money, QIWI, E-port and others) (Grishina, 2019:21-27). The mechanism of settlement with electronic money is based on the right of the owner of electronic money to redeem it from the operator (exchange for cash or non-cash funds). Electronic money is recorded in a special virtual account (“e-wallet”), while the money account is reflected in the bank account of the electronic money operator, due to which all electronic money accounted by the electronic money operator will be redeemed. Another important detail is that prior to the transfer of e-money, cash or non-cash payments are supposed to be made in advance; only after that it is possible to make a payment and the e-money operator transfers the e-money to the recipient. The transfer can be made by the payer's order or at the recipient's request. Electronic funds are debited from the payer's virtual account (“electronic wallet”) and credited to the payee's virtual account (Tsindeliani, 2019:219).

It should be noted that, according to the official position of the Russian Ministry of Finance, the income received from payment for purchased goods with electronic money is subject to taxation (Letter of the Russian Ministry of Finance No. 03-11-11 / 1415 dated 01.20.2014), and the fact of payment is confirmed by a statement on the respective account with the payment system operator or a message from the payment system operator (Letter of the Russian Ministry of Finance No. 03-11-11 / 163 dated 05.06.2013). Therefore, the taxation object in this case may arise as a result of not one but two legal facts, one of which is a security condition in relation to the second.

At the same time, there are no changes in the tax legislation of the Russian Federation related to the need to fix the consequences of not one but two legal facts for establishing obligation to pay tax in respect of a particular subject of tax. We believe that it would be logical in this regard to adjust paragraph 1 of Article 38 of the Tax Code on defining the object of taxation and indicate that it may be a set of facts. Such set includes not only a circumstance, but also a set of circumstances, one of which has a value characteristic and the other is of organizational and supporting nature.

The third digitization challenge to the tax law in terms of formulating the object of taxation concept is the issue of establishing the necessity of the tax-forming connection between the object of taxation as a phenomenon of the material world and a potential taxpayer when determining the tax. E.V. Porokhov stated about the existence of such connection, defining it as a stable legal connection of the subject of tax with the subject of taxation (Porokhov, 2001:99). I.I. Kucherov emphasized the importance of this connection for the real establishment of the fact of presence or absence of the object of taxation in the activities of a potential taxpayer: “This connection is decisive, because, in our opinion, it forms the object of tax -- the most important element of its legal construction” (Kucherov, 2009:2-5). In practical terms it means that in order to attribute a legal fact to the objects of taxation it is necessary to establish a legal connection of the object of the material world (object of tax) with an individual, having at the same time a mechanism of unambiguous identification of the latter. In the conditions of digitization, there are identification difficulties of the parties to a transaction, as well as their location and status when performing electronic transactions, which is significant from the tax point of view.

One of manifestations of such problem is the question of legality of transaction certification when using analogues of handwritten signature.

As a temporary solution to the problem, it was suggested that the Organization for Economic Cooperation and Development should use digital certificates and digital signatures to identify parties to taxable transactions, which would help to identify a particular entity as a taxpayer related to a certain benefit for which the State could impose an obligation to calculate and pay tax.

As it is known the civil legislation of the Russian Federation regulates the use of analogues of handwritten signature in a transaction (paragraph 2 of Art. 160 of the Civil Code). The researchers note that the “projection” of these provisions on tax and other relations that are not civil law, is possible only if there is a corresponding indication of this possibility in the law. It seems that the difficulty of applying digital certificates and digital signatures by the parties to the transaction, the consequences of which are taxable, is due to the absence of such special provisions in the tax legislation.

Conclusion

Therefore, the result of the course taken by the state to develop the digital economy is a significant transformation of both tax law theory and its legal regulation. In order to introduce new technologies in tax relations it seems necessary to carry out research aimed at development of separate, though rather narrow, but indisputably important issues connected with application of digital technologies in legal sphere (Khabrieva, 2018:6). For this reason, issues related to the definition of the subject of taxation require further study and development.

The review of academic literature on the issue of definition of one of the most important terms of the tax law -- object of taxation -- conducted within the framework of the present article allows to highlight existence of two approaches; both of them seem far from ideal taking into account modern digital challenges to Russian economy. Besides, the tax and legal terminology needs to be unambiguously updated due to the normative definition of digital goods.

It seems that the main drawback of the current definition of the object of taxation is the obsolescence of approaches to its formulation. In our opinion, there is a need for the doctrinal concept of transformation of tax relations with regard to the digital age; then further improvement of tax legislation will become real. At the same time, such concept should focus on the development of new terminology, as well as the methodology adequate to the digital realities, which implies the use of a comprehensive approach for the purposes of tax law. Such approach should combine legal, economic and sociological knowledge along with information technologies.

The practical value of such approach is to create a universal triune formula -- “legal regulation, public administration, technology”, which serves as the main conceptual idea for further digitalization of both the Russian economy and the activities of government agencies. Indeed, successful introduction of some or other new technologies into the processes of interaction between private and public entities can be successfully realized only in case of preliminary substantiation of managerial decisions based on such technologies, as well as corresponding modifications in normative legal and individual regulation.

We believe that the idea of ensuring the unity of technology, law and public administration is of conceptual value not only in relation to certain areas, such as taxation. In our opinion, it is characterized by its universal character; in this connection it should be used as a methodological basis for digital transformation of state and municipal bodies' activities.

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