Going To The Source: A New Approach To Personal Income Taxation

Professor Yariv Brauner of the University of Florida Levin College of Law discusses the challenges facing residence-based taxation and his proposal for a new way to tax individuals.

This transcript has been edited for length and clarity.

David D. Stewart: Welcome to the podcast. I'm David Stewart, editor in chief of Tax Notes Today International. This week: reconsidering the source.

For a long time, the right to tax an individual's income has been based on the location of their residence, and while this has worked out fairly well, new pressures are putting strain on that system. Our guest this week has written about an alternative method for taxing rights that he suggests is a better fit for the 21st century. We'll hear from him in just a moment.

Later in the episode, we'll hear from Tax Notes State author Andrey Yushkov about his coauthored article on long-term trends in state personal income tax.

But first, I'm joined by Yariv Brauner, professor of law at the University of Florida Levin College of Law. Yariv, welcome to the podcast.

Yariv Brauner: Thank you very much. Happy to be here.

David D. Stewart: So why don't we start off with a baseline of what the current default scheme is, the idea of taxing people based on residency?

Yariv Brauner: So, really throughout the lifetime of the modern international tax regime, countries, almost all countries, tax based on an axiomatic paradigm. They tax their own residents on the worldwide income, and they tax foreigners to the extent they want to do that, only based on what's called source income. And this is essentially universal, and this has been like that for the last 100 years, basically.

There is a potpourri of citizenship taxation, we know, in the United States and obviously some small deviations here and there, but other than that, we have this paradigm of residence and source control the entire world of tax.

David D. Stewart: How has that become the default? What is it about that regime that makes sense to policymakers?

Yariv Brauner: So makes sense to policymaker is already making an assumption. So historically, of course the modern international tax regime starts with the rich countries, the ex-empires, at that time maybe empires, coming together and trying to solve what we know is the problem of double taxation at the League of Nations.

So they were seafaring, they had the international corporations, and they tried to come to solve it. So from the beginning, their interests were the interests of countries with rich residents, with investors with capital exporting nations. So obviously they had an interest to preserve what they thought was their right to tax the capital.

Now conventionally the thought was, "Well, residence taxation makes sense because the income tax is a personal tax, and if we want to tax the individual, we need to decide, when we talk about international cross-border transactions, what will be the right personal connector to the jurisdiction, and what is more natural than looking at the individual? Say, what individuals belong to us?" And residence emerged as the appropriate connection.

Now the history here, there's a path dependence here because there was a reliance on traditional connectors between individuals and jurisdictions based on private international law. The traditional connectors were citizenship or nationality; domicile really dominated taxation the years prior to the ascent of the income tax and in the beginning of the 20th century as well.

But domicile requires a level of permanence. It's a heavy burden when you want to move from one domicile to another, and residence were deemed more appropriate because you don't carry the baggage. So from one year you can be a resident in one country, and the next year you can be a resident in the other country. That also fit the idea of income taxation assessed on the individual on an annual basis.

Now, of course, when we come to theory or policymakers, there was an attempt to justify beyond just the interests of the rich countries, this tentative idea of similar connectors between an individual and a jurisdiction. So, mostly they tried to justify it with what we call benefits theory.

The idea behind it is if you're a resident in the country, you primarily participate in the economy of that country, then you probably benefit from the services that that state, that country, provides, and therefore that justifies taxing you on all of your income. Whereas if you are a foreigner, you're going to be taxed only on your source income, meaning only the income that arises but is sourced in our country. So you only benefit from our services with respect to that income and not with respect to income that you earn somewhere else. So, that was the paradigm of source and residence.

Now of course the benefit theory is rather weak because there is no real direct connection between the two. So more and more, and this goes really back to the beginning of the 20th century, really the more dominant theory was what people call the ability to pay or the aspiration for progressive taxation. There, the idea was each country wants to tax individuals fairly based on their ability to pay. And because of that, with respect to our own residents, we, the country, the resident's country, we're the only ones that can really look at the entire income, the worldwide income, of that person and appropriately apply the progressive tax system to that person.

So this protection of the ability-to-pay idea, and progressivity is probably the strongest justification, or at least explanation, of the power of residence taxation. Now, source countries, or the poorer countries, tried to resist, starting in the '40s really, but they were powerless. The international tax regime evolved with the leadership of the OECD; as we all know, that is still the case. The justification didn't need any strong backing, intellectual or scientific backing.

There were also other justifications. There is this intuition of if you are a member of society, you should also pay for the benefits of that. So this is more of a political theory than just a simple benefits theory.

Also, there was some justification based on efficiency. Again, the idea is very similar to what we are more accustomed to in the context of corporate taxation, about the more efficient allocation of investment, of the location of investment. There were ideas of sovereignty. So if you are subject to the sovereignty of the state, the power to tax is the most obvious manifestation of sovereignty. Taxation is almost the last bastion, I could call it, of sovereignty.

And finally there was a notion that residence taxation is simpler; it's more administrative. Why? Because we know you're a resident, you're a taxpayer, we control you, we can require all the information, and we can verify, rather simply, the information about you, and therefore we should be in charge, beyond our dessert, to tax you. Now, this didn't work perfectly. There's been issues. Obviously the poorer or the source countries were not that happy. However, the fact that they were given, if you will, the ability to tax at source as a first bite on your earning income within their territory relieved some of the tension. There were at least two instances where problems persisted.

One of them is known as the brain drain phenomenon. So most notably think about engineers that are educated in developing countries, and now when they're educated, when they grew up, now they can contribute back to the state. They go and they emigrate to the United States, for example. Once they move to the United States, they become residents of the United States; they start earning money; the U.S. collects the tax, not their home country.

Other issues arose in the context of border and transitory workers. Again, this didn't fit perfectly the paradigm of residence and source, but these were considered minor problems. It did not involve many people, and it didn't involve powerful countries, so the paradigm persisted.

David D. Stewart: Given that this policy structure has been around for so long, what are the additional cracks that we're seeing in the assumptions that were made, and how are things working out now?

Yariv Brauner: So, over time what happened is that again, all of these, the politics especially, resulted in a continuous gnawing at source taxation. Source taxation meant withholding tax; withholding taxes were considered inefficient; taxpayers hate withholding tax because it's money out of pocket, and obviously the resident states don't like it. Efficiency arguments, that are not really very well-supported, supported that as well. So we ended up with a system where source taxation has been decimated over these years continuously.

The political result as we see now is the developing countries, some of which developed, to some extent. Now we call them emerging economies in the context of the BRICS, but obviously China, India, Brazil, etc. are coming to the OECD and the OECD countries. And they say, "No more. We want a new deal." And recently the UN work on taxation also signals that the developing world has said, "Well, that's not the deal that we agreed to, and now we may have the power to resist it."

In addition, there are external circumstances, and this is the crux of my article: Things that happened in the 21st century, let's call it, that made residence taxation even less sensible. So, one thing that we've had before but really increased recently is the phenomenon of residence by investment schemes. This was known [as] the U.K. non-dom or non-domicile regime. Many countries, almost all countries, including rich countries, are offering rich, essentially, individuals the protection of residence or citizenship, even status, in exchange for investment or capital.

The second phenomenon is even more recent is what we call the digital nomads. The digital nomads are an interesting phenomenon because it defies this reliance on time spent in a jurisdiction to determine residence. In addition, it's interesting because the direction is exactly the opposite, for example, from the brain drain phenomenon that I described before, where we see a lot of tech entrepreneur or tech workers going from developed countries to some nice island; they sit on the beach; we've all seen the pictures of somebody sitting on their computer in some exotic location. Now that person is sitting there, is not here, is not a resident of the United States, for example. Obviously this, again, defied this idea of clear relationship between an individual and the economy where that person participates.

And the third phenomena related is remote work. Remote work challenges this idea of residence taxation because the person could be, again, present in one jurisdiction and participate economically in another jurisdiction. The states in the United States are already struggling with this. We've had even Supreme Court cases with respect to that where, post the pandemic, that really accelerated this phenomenon. We all know that.

We've seen people moving, for example, from Boston or Massachusetts to their summer homes in New Hampshire. Now they are residents in New Hampshire, but they actually work, supposedly, in Massachusetts. Same thing happens internationally in various places in the world. All of that results in a world where the intuitive appeal of residence, beyond its unfairness, is being reduced quite significantly.

David D. Stewart: So that brings us to the point of your article, which is rethinking this residency-based tax system. Why don't we just start from the alternative that currently exists, which is this citizenship-based idea that the U.S. imposes. So what are the pros and cons of that system?

Yariv Brauner: So, citizenship taxation comes up in, let's say, with different hats in this context. For a while, of course, the United States has this parallel system of citizenship and residence-based taxation. The best explanations out there are built on, again, a benefit theory.

So you're a citizen of the United States in need; the Marines are going to come and help you and whatever. Arguments along these lines. These arguments are quite weak. It's difficult to really connect the level of taxation and the potential benefits and actual benefits of citizenship per se, even in the U.S. context. But this article is not about the United States; it's not about justifying our own system. I think that's really important because most of the discussion of citizenship taxation happens really in that zone, in that cubicle of justifying or not justifying U.S. taxation of its own citizenship in a world where nobody else does that.

The question really is, will citizenship-based taxation, can that replace the current paradigm of residence source or residence? Primarily residence taxation. And there are two strands here, one a little bit older. Professor [Edward] Zelinsky proposed citizenship-based taxation as a proxy for what he would've liked to see, which is domicile-style taxation. So correcting for some of the difficulties that residence taxation faces. He says that it's better administratively, it's easier to identify our citizens, etc.

Another idea was professor Reuven Avi-Yonah's idea to have citizenship-based taxation solve the same problems that I just mentioned before. In fact, when I presented these ideas first, he presented his paper on the citizenship-based taxation idea. And his idea is first trying to deal with the problem of non-dom, of residence by investment, and the new nomads. But the intellectual base for his idea is that you as a member of society, a member of the political group, you also have the burden to pay, or to be taxed, by that group as a consequence, or as a duty, that is related to your benefits from being a member of that group.

Well, I don't accept this idea. I don't think that it's obvious. Maybe it's intuitive to many people, but I don't think it's obvious. It's almost the reverse of the slogan that is also not very strong but very powerful in the United States of "no taxation without representation." This idea really means no representation without taxation. And if we believe in democracy and we really think a little bit deeper about this idea, then I think we cannot accept it, and that is because if the member of society is able to be part of that decision-making process, especially in a democracy, then they can make any decisions that they want and do any prioritization that they wish to do.

If you can survive with taxing only foreigners, why not? What's bad about that? I don't think there is some natural law that connects participation in the political group with taxation. I also think it doesn't solve all of these problems. And indeed, professor Avi-Yonah brought this idea not to replace completely the current paradigm, but rather to solve the problem of particular circumstances. And we both agree about the need to solve the problem of taxation based on residence of the rich and the talented that are much more mobile in the 21st century.

David D. Stewart: All right, so let's get into your proposal, your idea here. Switching to a source-based taxation for individuals, how would that work?

Yariv Brauner: So my thought here, so of course I started with the weakness of residence-based taxation, and then the most intuitive thing, or the most intuitive next step would be, OK, the current system is based on source and residence. What happened if we simply eliminated residence taxation? So in a way this was a thought experiment, and it still is. I'm an academic; I don't have to actually write any particular law. I'm developing it a little bit in this particular paper. And I thought there are immediate advantages.

The first immediate advantage is the solution, or the resolution, of this imbalance between people in different circumstances in terms of their mobility. So there's obviously a fairness grain here. You're going to be taxed wherever you earn your income; that is the really core idea. It's intuitive; it's fair, in an obvious way. Internationally, it is also really powerful because it corresponds with this protest or critique of the developing and the emerging economies to say, "Well, the balance tilted too much in favor of you, the rich countries collecting revenue, that really we deserve in this context."

Theoretically, there's been a lot of criticism in the past of source taxation. The main critique was that source doesn't mean anything. Most tax policy was led, and still is led, by economists. And economists come and say, "What is this thing that you call source? This is a ridiculous concept. Income does not really have a source."

Here, prior article by professor Mitchell Kane, I think very convincingly responded to that. It says, "it's not an economic idea; it's a political idea. Taxation, or especially international taxation, is about division of the tax base among countries, and business enterprises operate as singular economic units. But countries want to keep their own taxation, their own revenue, their piece of the pie." So as such, it is a fair idea and very intuitive idea that each country should be able to tax whatever arises within its jurisdiction.

Now at this level it's not really problematic. It becomes problematic when we go into the details, and mainly the details of investment capital investment. So what do you do with investment or business that is remote? For example, who gets this? This phenomenon that some people call homeless income or stateless income, this came up more in the context of the corporate tax, but it applies similarly in the context of the individual income tax. Now this requires attention.

So just eliminating residence taxation is not enough. It is good; it simplifies the system; it makes a single basis for taxation, obviously making the system a little bit less complicated. It is fair; it's intuitive; it complies with this idea of territoriality in the international law, but it doesn't resolve, immediately, the problem that we have with the existing source rules, and that requires work. But my response to that would be, "Well, these source rules require attention already." The whole spiel about the digital economy or the taxation of the digital economy is exactly about this issue. The critique of permanent establishment is exactly about this issue. And, indeed, the OECD itself is willing now in what it calls pillar 1 to eliminate the requirement of physical presence within a jurisdiction for taxation.

Now if that's eliminated, then we open the door to a new way of thinking about the relationship between income and a jurisdiction. Now this particular article, it has the limit of any law review article in terms of size. It's not a dissertation; it's not a full prescription, but I will work further on that. What may be your next question; what's the disadvantage of this? The obvious disadvantage is going to be that the rich countries or the residence countries are not going to like it, and at least some of them may not like it.

Now, I don't think the world is divided as it used to be between residence and source. The United States is the biggest source country in the world. But, beyond that, what would happen if some countries simply don't accept it, they're not willing to go forward with this idea, and they want to keep their residence-based taxation? So here we come into several solutions that are already acceptable in the international tax realm, or they're already on the table. We can use ideas such as minimal taxation; we can use a reassignment of income.

So let's say we have 10 countries, nine of them agree to this idea; they agree, more or less, on the reformulated source rules, and the tenth country does not agree. Or we have some income that is stateless that is not easily assigned to a particular jurisdiction. I think we can use formulae to assign that income to all the participating or the claiming jurisdiction.

Now this lends itself to a more aggressive, or a more advanced solution, that is not simply eliminating residence but rather moving to what I think is inevitable; other people may not agree with that, and that's some formulary taxation of international income. Formulary taxation of international income is [a] really source-based idea. What do we do in formulary taxation? We say, "OK, we're going to divide your income. We're not going to tax you twice. We're going to divide your income among a fairly, or bona fide, tax claims of different states based on some parameters that we're going to put into a formula."

I think that is the obvious next step, I think it's inevitable in the corporate tax area, and eventually I think it'll be inevitable in the individual tax area. And there's a huge benefit of having the same basis for taxation for both corporate and individual taxpayers as well. So this is another benefit of this idea.

David D. Stewart: So this existing system has been entrenched for a very long time. What would it take to replace what we have now?

Yariv Brauner: This is really subject to speculation in some way because it's a political question. I think the current regime is not sustainable. Obviously we see the OECD and OECD officials, this time also the United States, saying, "Well, we have all the world in the inclusive framework, and we all agree on whatever we are going to agree."

At the same time, we see that the majority of countries in the world are not satisfied, are not really going to cooperate with the solution. And this is in the simpler context of the corporate tax, and in the simpler context of only the largest corporations in the world. Remember, this is just a small portion of tax revenues in the world. The corporate tax is what: 6 percent, 5 percent of the largest economy?

In the individual context, we're talking about a much more important move. That would require to see how things settle now in this development of the regime. It's possible that the regime will crumble. It's possible that we're going to see more regional arrangements; we're going to see a little bit of tax wars.

On the other hand, states could start and say, "You know what? We're not participating on these terms anymore. We are going to convert our system to a source-based; we're going to protect our territorially based tax base, and if you're going to cooperate with us, then we're going to be able to do it in a more effective way, and if you're not going to cooperate with us, we are going to find [a] formulary solution." And we already see countries doing that. The digital services taxes are essentially doing that. So if you don't let them withhold taxes on digitally-related income, they're going to apply it on the turnover. Perhaps the UN could go forward with similar ideas, perhaps some regional arrangements. We know that the African nations are now starting to cooperate better and more intensively. And the same thing happens also in Latin America. So this is really part of this rearrangement of the powers of the international tax regime.

So I'm not a prophet. I don't know what exactly will happen, but I think this is a powerful idea that one cannot prescribe to the last detail, but it could fortify it, and it could inform states when they come to renegotiate or revise the international tax regimes, they can maintain the most important elements of the existing regime. So they can maintain progressivity; they can maintain that idea that if income is generated from their resources, from their efforts, they will be able to decide whether to tax it or not. And for the most part, if you have a person that is primarily operating within your economy, you're going to tax their income anyway under the source rules.

David D. Stewart: This is a fascinating issue, and I thank you so much for coming on and explaining how things work now and how they could work in the future.

Yariv Brauner: Right. Thank you very much.