We tax lawyers take pride in the complexity of our handiwork. The website of the US Internal Revenue Service quotes no less than Albert Einstein for the proposition that “the hardest thing in the world to understand is the income tax.” We take comfort in the notion that its complexity shields tax law from the damage done by ordinary human foibles. How could rules so byzantine possibly be distorted by racism?
As much as we might like to imagine otherwise, however, tax laws do not operate like the laws of physics. Not even the most brilliant tax expert will discover a universal truth like E = mc2. Law professor Dorothy Brown has shown that US “taxpayers bring their racial identities to their tax returns,” so that “being black is more likely to hurt and being white is more likely to help.” In global tax policy, anti-Black racism continues to be exploited to craft a system that will favor the haves (generating hundreds of billions in revenues for the United States) at the expense of the have-nots (banning a tax that would generate hundreds of millions for countries like Kenya and Nigeria).
This month, we’re seeing that dance play out in real time as the Organization for Economic Cooperation and Development (OECD) meets to revisit “key elements of the century-old international tax system.” For more than half a century, the world has tasked the OECD with overseeing the composite of national tax laws and international tax treaties governing the taxation of multinationals. Over those decades, the world has changed—but the OECD’s rules governing the taxation of multinationals have not.
That stability has preserved a profound inequality, invariably privileging the interests of insiders. Why would it prioritize the interests of some? Because the OECD is, and always has been, an exclusive club, an organization of elite global players. When designing tax policies, it has always acted for the benefit of its members—the world’s richest countries—at the expense of others. Who are those others? Aside from Antarctica, Africa remains the only continent that does not boast a single OECD member. Brown explains that within the United States, “it is the decision-making by white Americans that is largely responsible for Black outcomes today,” and, unfortunately, the same remains true globally.
As the OECD has met this month, headlines have breathlessly declared that the organization has changed its elitist ways and, as a result, now stands at the brink of solving the twin challenges of taxing the digital economy and stamping out the scourge of tax havens. According to the organization, its new openness is the result of an “Inclusive Framework” that means “developing countries’ perspectives and inputs are increasingly influencing the development of international standards on corporate taxation.”
Critics, however, have pointed out that this new arrangement does not offer membership to these other countries but merely an opportunity to participate in its rule-making process, creating little more than the appearance of open engagement on global tax policy. More serious still, recent research by law professor Shu-Yi Oei suggests that the Inclusive Framework has been used to coerce nonmember countries into “committing to reform their domestic tax laws to reflect the standards and policies prioritized by the” OECD. In other words, not only has it been far from inclusive; the framework has been used in Orwellian fashion to force poorer countries to embrace the agenda of the OECD’s wealthy members.
That is precisely what we are seeing this month as the OECD leans heavily on that “inclusive” approach to finalize its plan to remake parts of the international tax system. The OECD has given this process a name—the “Two Pillar” approach—and it consists, you guessed it, of two steps: first, of constructing a complex new mechanism for reallocating as much as $125 billion in taxes on profits of roughly 100 companies; second, of implementing a “common approach” to minimum taxes on corporate profits, which is meant to help stem the practice of multinational tax avoidance. Both pillars are to be finalized over the next two years.
But these OECD reforms are not quite what they appear to be, giving with one hand while taking with the other. In order to participate in this Two Pillar system, the OECD insists, countries must abandon promising new taxes on digital corporate giants—and those that have already instituted the new tax must stop collecting it.
The digital services tax (“a tax on selected gross revenue streams of large digital companies”) was pioneered by France, where it was signed into law by President Emmanuel Macron in July 2019. It allows countries to impose taxes on companies like Facebook or Amazon that do business inside their borders and then either ship the proceeds back to their corporate homes, or, more frequently, to the Cayman Islands, Singapore, or Switzerland
These taxes offer a near-term solution to a dire revenue picture for countries in the Global South. But the United States has decided that Facebook, Google, and other online behemoths should not pay it. Obediently, the OECD has decreed that no country, whether or not an OECD member—and no matter how badly they need the revenue—should be able to impose such a levy. It has relied on the Inclusive Framework to enforce that edict.
Much as Dorothy Brown focuses on tax disparities between Blacks and whites to highlight the harmful impact of racist tax policies on the broader community, looking at the impact of the OECD’s policies on Africa likewise highlights their unfairness for the whole Global South. Like all developing countries, African states rely disproportionately on taxes paid by corporations. For years, entrenched rules—overseen by the OECD—have shielded corporations headquartered in its member states from taxation elsewhere. The Tax Justice Network observed that the OECD is “responsible for over half of all the tax losses that countries lose to tax havens”—$237 billion per year.
Kenyan scholar and now UN Independent Expert Attiya Waris has described the impact of these and other OECD rules on Africa. Waris has documented that most of the countries in Africa collect tax revenues amounting to less than 15 percent of their total economic output. The United Nations has set a 20 percent ratio as the absolute floor needed for sustainable development.
OECD indifference to the priorities of poor countries—including those in Africa—has helped perpetuate a grim reality in which “a fifth of the world’s population still lives in abject poverty.” While a digital services tax would hardly solve all of the continent’s problems, Kenya estimated that the tax would generate $45 million in urgently needed revenues in its first year alone. Unmoved by the plight of a continent that could put those millions to work—not least by purchasing vaccines—the OECD has been unyielding in its opposition to digital services taxes.
Despite extraordinary pressure—and perhaps channeling Brown’s skepticism of a system designed with others in mind—many African countries have been notably skeptical of the OECD’s Two Pillar effort. According to the Zimbabwe Independent, the OECD effort “will benefit a few rich countries.” Two of Africa’s largest economies, Kenya and Nigeria, have openly defied the OECD, refusing to publicly embrace the Two Pillar plan. It is no coincidence that both have enacted digital services taxes that the OECD, reflecting the priorities of the United States, plans to eliminate.
Scholars and leaders from the Global South have long pushed back against the OECD’s exclusive structure. For decades, they have forcefully rejected the notion that an organization dominated by a handful of wealthy countries can speak for the whole world.
One of the first rebellions against the OECD’s methods took place in 2001, led not by outsiders but by consummate insiders. Tasked with ending harmful tax practices, the OECD’s tax experts managed to earn a stinging rebuke from the United States itself. The blunder that derailed the OECD’s much-anticipated effort? It identified Liberia—but not Switzerland—as a tax haven and threatened it with sanctions.
Liberia was, at that moment, caught up in a spiral of violence. As the OECD correctly observed, it lacked the sophisticated tax administration boasted by the OECD’s wealthy members. But—as the OECD might have understood had it had even one African member—that had nothing to do with tax evasion.
Switzerland, for its part, was hurtling toward a different reckoning. Within a decade the “omerta of Swiss banking” would be shattered, revealing a world marked by “millions stashed in Swiss bank accounts.… precious jewels and artwork whisked into hiding.… diamonds smuggled in a tube of toothpaste.” Apparently, unbeknownst to the OECD, while Liberian children fought and died, Swiss bankers helped global elites—including kleptocratic rulers looting Africa’s wealth—to shield their booty.
Recognizing the grotesque cruelty of the OECD’s double standard, the US Congressional Black Caucus forced President George W. Bush to withdraw support from the OECD’s blacklist. Yet the OECD’s tax experts learned the wrong lesson from that episode. Rather than acknowledge the racism that infects its policy-making process, the OECD learned not to bite the hand that feeds it—namely, the United States, by far its largest source of funding.
Since then, the OECD’s fierce loyalty to its members has been rewarded. In 2015, developing countries came up with a proposal to shift the center of power away from the OECD’s exclusive rich countries’ club. In the words of the Jayant Sinha, at the time serving as India’s finance minister, it would have “mov[ed] the formulation of global tax policy from the OECD to the UN, where it actually belongs.” But wealthy jurisdictions, including the United States, defended the OECD’s turf, ensuring that poor countries would remain at the margins and that its members would continue to reap the rewards.
While unsuccessful, that 2015 effort did force the OECD to at least create the appearance of equality with its Inclusive Framework. Translating that expressive victory into substantive change, however, demands that poor states be granted a meaningful opportunity to decide how multinationals can be taxed. Opening up the country club to give those long denied membership occasional access to the golf course just won’t cut it.
In a better world, there might be a third Pillar designed by the United Nations (or an organization like the African Tax Administration Forum) to ensure that all countries have access to the revenue they need to meet the basic needs of their citizens. An ATAF proposal—or one of the “concrete proposals put forward by developing and emerging countries” that “have been ignored”—would certainly have done more to help the Global South and less to shield Facebook and Google from new taxes. You don’t need to be Einstein to see that allowing poor countries to impose digital services taxes—to recapture some of the wealth generated by their own citizens’ consumer spending—would help undo some of the harm caused by years of racist global tax policies.