Abstract
This thesis encapsulates the nature of the research which is looking at profoundly challenging issues in taxation at the forefront or border of New Zealand’s international or national experience. “Border” in this context has a multiplicity of meanings, including:
1. Taxing across jurisdictional borders; In respect of the taxation of the digital economy, “border” takes on a physical and jurisdictional legal concept because digital multinational giants have been able to structure their operations so that they can trade in, and with markets without triggering taxation consequences;
2. Taxing across different sources of law; In respect of the interpretation of international tax law and its relationship to domestic law, “border” examines the interface of domestic and international law, raising important relational issues between these sources of law and whether the domestic law can override international law, whether the good faith principle can be invoked to prevent domestic legislation renegotiating double taxation agreements and other important questions on the “border” of these two sources of tax law;
3. Taxation and the role of statutory interpretation on the “border” between the general anti- avoidance provisions and other operative substantive provisions. This area of law is one of the most challenging areas of interpretation. In what circumstances does the general provision preventing avoidance apply to negate otherwise lawful specific tax consequences, such as a deduction expressly allowed by the Income Tax Act. When is the line or the border crossed by an impugned arrangement or transaction?
4. Taxation at the “border” of the income tax base in the New Zealand tax reform context. This area of research examines the New Zealand tax base and considers whether the border between capital and revenue should be broadened, or even dispensed with.
In all these areas, namely taxing digital transactions, the relationship between international and domestic tax law, the interpretation of general anti-avoidance rules and the broadening of the tax base, there are very significant and, largely, unsolved problems. The research referred to, and further explained in this document, in this thesis examine these respective areas of the legal taxation “border”.
A broad overview:
There are three books (one monograph, one solely edited, and one jointly edited) and thirteen articles or chapters (nearly all of which have been published in international A*journals) in the work submitted in this thesis.
The monograph on the taxation of the digital economy, published by Cambridge University Press and described in greater detail below, deals with the profoundly tricky question of how to tax global multinational companies. This book was a central part of the University of Auckland Research Medal Award awarded to just two individual researchers across the whole of the University in 2022. The book has received international acclaim, as set out in the application. The other two books are edited collections and represent the drawing together and coordination of international and local tax scholars to produce conferences and publications on the current state of international tax and the taxation of capital gains.
The thirteen articles, or chapters, also reference excellence, not only because of the prestigious publications (such as the Oxford Handbook of International Tax Law, or the British Tax Review) in which they have been published but also because four of them have been selected for shortlisting for the Frans Vanistendael award for international tax publications. This is an award for the best publication in international tax made by an international jury, and only six research works are selected each year. Craig is the only person in the world to have had as many papers shortlisted in this award over the last decade since it was introduced, although the prize of winning has, so far, escaped him.
Some of these publications, particularly in the tax avoidance law, have received multiple citations in the New Zealand Supreme Court and other New Zealand courts. This brief description records the works which formed the basis for this application for a Higher Doctorate in law. The four main areas of work, as indicated above, are now more fully discussed.