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Avi-Yonah, Reuven S., Taxing Nomads: Reviving Citizenship-Based Taxation for the 21st Century (August 4, 2022). U of Michigan Law & Econ Research Paper No. 22-035, Available at SSRN: https://ssrn.com/abstract=4181471 or http://dx.doi.org/10.2139/ssrn.4181471

Abstract

The COVID pandemic and the rise of zooming has increased the ability of many people (primarily the rich) to work remotely. This in turn has led to more people moving to other countries to benefit from the ability to work remotely while enjoying other benefits such as lower housing prices, a more leisurely lifestyle, and in some cases greater political stability. Many Americans have used their newfound freedom to move overseas, e.g., to Italy. They and others like them are the new nomads.

Such a move is not tax motivated because Italy has higher personal tax rates than the US. It does, however, raise interesting tax issues because the US (uniquely) imposes worldwide taxation on its citizens wherever they live, while Italy (like most countries) does not tax non-resident citizens but taxes its residents on worldwide income regardless of their citizenship status.

The question is whether the US or the Italian regime is preferable in a world in which rich people can freely choose their residence jurisdiction regardless of their citizenship. Most of the literature (including my own) condemns the US approach as a historical anachronism and accepts the Italian approach as obvious. But this question requires reconsideration under changing conditions.

The tax policy choice (whether a country should tax non-resident citizens or non-citizen residents on global income) raises issues that would have been very familiar to Erwin Seligman and his colleagues on the 1923 League of Nations report. A key issue in the US debate on adopting the Sixteenth Amendment (1913) to authorize an income tax was whether federal taxes should be based on the benefits provided to the taxpayer by the government (the benefits or exchange principle) or on the taxpayer’s ability to pay taxes (the ability to pay principle). Seligman was a major advocate of the ability to pay principle, and of the consequent insistence that Congress has the power to tax all income “from whatever source derived,” since all income contributes to ability to pay. The ability to pay principle was also behind the adoption of the foreign tax credit and the rejection of exemption for foreign source income in 1918. The 1923 report is based on the benefits principle (“economic allegiance”), but the insistence that the residence jurisdiction must have the right to tax the income of its residents on a worldwide basis while allowing for credits for source-based taxes is derived from the ability to pay principle.

Which principle is better suited for taxing nomads? In my opinion, it is the ability to pay principle and not the benefits principle. A US citizen living permanently abroad does not derive sufficient benefits from their US passport (and may in some cases not even have one and not be aware of her US citizenship if that resulted from being born in the US). But if taxation is based on ability to pay, the relevant ability to pay is that of adult members of a political community, who get to vote and thereby determine the appropriate tax rates and the degree of progressivity of the tax rate schedule. And since US citizens abroad can vote in US elections, they should be subject to US taxes based on their ability to pay, i.e., on global income from whatever source derived.

Taxation of non-citizen residents, on the other hand, should be based on the benefits principle since they do not get to vote and therefore are not members of the political community in which they reside. Therefore, Italy should only tax US citizens residing in Italy on Italian source income, which reflects the benefits conferred on them by Italy, and not on foreign source income, which does not reflect such benefits. The US should credit those Italian benefits (source) based taxes in accordance with the priority of benefits (source) over ability to pay (residence) established by the 1923 report (the “first bite at the apple” rule).

The problem with this proposal, of course, is that it encourages taxpayers to obtain passports in tax havens and live permanently in other countries, and if those residence countries will only tax them on domestic source income, the result is massive under-taxation of the rich. Such “non-dom” regimes are a serious problem under current rules because countries like the UK (and many others) have adopted them to attract the rich. But there are ways to address this issue since non-dom regimes are politically unpopular and therefore ripe for legislative change in democratic countries. First, a residence country should be able to impose tax on its residents on worldwide income if the country of citizenship does not do so at all. Second, while the country of citizenship should be able to impose any non-zero tax rate it wants on its citizens (that is the point of taxation based on voting in a democratic political community), that choice should be respected by the country of residence only if the citizenship is meaningful, i.e., if the resident non-citizen has real links to their country of citizenship and not just a nominal passport (under the well-established Nottebohm test adopted by the ICJ). Finally, the country of residence should respect the primacy of the country of citizenship only if its citizens (including non-resident citizens) are given a meaningful right to vote in free and democratic elections in the country of citizenship (as determined by outside observers).

Hannah Arendt defined citizenship as “the right to have rights”. In today’s deglobalizing world, citizenship has become more important than ever because an increasing number of people (refugees) are effectively stateless and do not have either diplomatic protection or the right of abode in their country of citizenship. In addition, the ability to work remotely has significantly increased the ability of the rich to move permanently to other countries without obtaining citizenship rights and obligations. In this context, I believe the US approach of taxing its citizens on global income regardless of where they live is justified by the ability to pay principle (but not by the benefits principle), and that the current practice of the US and most countries to tax non-citizen residents on global income is not justified (within the limits of the anti-avoidance rules outlined above). This may not be a drastic change from current rules for resident non-citizens because most of them do not have foreign source income. But for those that do (like the rich nomads of the pandemic), ability to pay (citizenship) is a better basis for taxation than benefits (residence). Seligman, I believe, would have approved.

Disciplines

International Law | Law and Economics | Tax Law

Date of this Version

2022

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