Tax treaty making in federations

Ondertitel:division of tax treaty making competence and power between different levels of government

Component state autonomy, including fiscal and tax autonomy, is and remains a sensitive issue in many federations. This raises questions concerning the division of the competence and power to conclude treaties in those federal states, as well as questions about the legitimacy of the treaties concluded by that federation or its component states. The competence to conclude treaties in federations is typically allotted to the central, federal government. And when the component states are awarded treaty making competence, this is often subjected to several specific conditions, translating it into limited treaty making power. Belgium appears to be the federal state which has attributed the largest treaty making competence and power to its sub-federal entities, based on the in foro interno et in foro externo principle. According to this principle, its Regions and Communities are granted not only the competence, but also the power to conclude treaties concerning the policy domains for which they are internally competent. One of those policy domains is taxation. After establishing a theoretical framework based on the works of Jürgen Habermas, Ronald Dworkin and Pierre Rosanvallon, the relevant international, European and domestic legal frameworks are identified. The theoretical framework is of a general nature and can be applied to other areas of law than taxation. It particularly provides answers to questions such as the following. Which federal entity should conclude which treaties? What code of conduct should the other treaty partner observe when concluding treaties with federations and/or their component states? How should legitimacy be judged at pivotal moments, such as the treaty’s conclusion, amendment or termination? How should a treaty’s legitimacy be judged between those pivotal moments? These questions lead the author to in fact identify different kinds of legitimacy and relevant theoretical frameworks. The legal frameworks are specific to taxation. The current Belgian tax treaty making practice is subsequently put to the practical test and analyzed in light of these frameworks. This dissertational research is at crossroads of legal philosophy, international, European and domestic constitutional as well as tax law. The combination with qualitative research methods to analyze how the aforementioned are translated in day to day treaty making, allows the author to reach some interesting conclusions, identify best practices and make pinpointed recommendations for realistic improvements.

Jaar van publicatie:2020

Trefwoorden:Doctoral thesis

Toegankelijkheid:Closed