Global Initiative of Electronic Commerce Taxation; Guiding Principles for Pakistan

1. United States of America (USA)

In the United States, legislation was introduced in the House of Representatives and the Senate, creating the Internet Tax Freedom Act, which represents a continuing effort on the part of federal legislation to ensure that the taxation of economic activity, whether electronic or otherwise, is dealt with in an impartial manner. This Act created a three year moratorium for all e-business activities, in effect from October 1, 1998, until October 21, 2001, that excluding certain kinds of special, multiple or discriminatory Internet taxes. The Act itself prohibit the state and local governments to impose sales tax on electronic sales in a similar fashion as imposed on sales made via the telephone or mail order. The Act further calls on the revenue authorities to seek an international agreement that would keep the Internet free of taxes and tariffs. The “Internet Tax Freedom Act” Moratorium on certain taxes The “Internet Tax Freedom Act” provides a three-year moratorium on the following taxes on electronic commerce:

Taxes on Internet access, unless the tax was generally imposed and actually enforced prior to October 1, 1998; and

Multiple or discriminatory taxes on electronic commerce.

Taxes are eligible for the exception for generally imposed and actually enforced taxes, if before October 1, 1998, Internet service providers was provided a reasonable opportunity to know that the State or local tax administration agency and applied the taxes to Internet access services or generally collected the tax on Internet access charges before that date. In general, a tax is a prohibited multiple tax if it is imposed by a State or local government on the same or essentially the same electronic commerce that also is subject to another tax imposed by another governmental entity unless a credit for taxes paid in other jurisdictions is allowed. Prohibited discriminatory taxes are defined as taxes on electronic commerce that are not generally imposed on non-electronic transactions involving similar property or services that are accomplished by other means, are not imposed at the same rate as similar taxes on transactions conducted by other means, or are not imposed on the same party to the transaction as taxes on transactions conducted by other means. For example, a sales tax imposed on Internet purchases of widgets, but not on purchases of the same product at local stores on the taxing jurisdiction would be a discriminating tax. The moratorium was scheduled to expire after October 21, 2001. The Internet Tax Freedom Act states that its provisions do not affect any State and local government taxes other than those described in the Act. The Act contains specific exceptions regarding taxes on Internet access provided by internet service providers that does not include or make available “screening” or similar exclusionary protections against material not suitable for minors. In United States, the Cross-border beyond the jurisdiction of USA federal or state Internet transactions generally are subject to the same set of Federal income tax rules and tax treaty provisions that apply to other cross-border transactions. Accordingly, U.S.-based Internet service providers are subject to U.S. tax on all income, whether derived in the United States or abroad. Foreign-based Internet service providers are subject to U.S. tax only if their income has a sufficient connect with the United States. Present tax laws generally does not provide special income tax rules for Internet-based transactions and activities and the issues arise in connection with these e-transaction, may arise as to the proper application of general US tax concepts to these activities in the cross-border context. These issues may include the determination of whether Internet-based business activities rise to the level of a taxable presence in the United States and also rather geographical source of income arise from internet transaction have any geographical substantial connection with USA or not.

“?the United States will work through the World Trade Organization to turn the Internet into a free-trade zone, and she will advocate as we seek to establish basic rules for international electronic commerce with new regulations and no new discriminatory taxes. ” The Internet as a global and the legal framework should be consistent tax application in all jurisdictions. And further more Taxes and tariffs should be declared a tariff free environment due to its true global medium. No new taxes should be applied and a uniform approach to existing taxes should occur across border jurisdictions. The aim of the united state to turn the global internet economy into free zone will cause erosion of revenue which Pakistan can not afford to do that, the services perform on internet could be given exempt to them, as can be placed under exemption list of services. But in case of the business whose e-record is located in Pakistan can be placed under the exemption list.

2. Canada

The Canada is taking influence from all quarter to influence the policy as adjustable to global policy so as to avoid any legal dispute regarding imposition of taxation and its adjudication. The most important principles are that it is providing the legal frame where the e-transaction could be placed as par with paper based form so that appropriate collection of taxation could be made feasible as par traditional sources of taxation. Canada’s international strategy is based on the recognition that e-commerce is essentially global business and the Canadian tax authorities should work together to influence consistency of global policy in matter connected with imposition of taxation. She also stated that of the Federal legal enactments in Canada regarding e-commerce required the use of paper documents with signatures on paper. Legislation to recognize electronic transactions at par with paper transactions has been tabled and implication of taxation is also recognized on equal footing. The Canadian federal government commission on electronic commerce made following recommendation for appropriate collection of e-commerce taxation; the summary recommendations are to develop a strategy for collection of taxation from electronic commerce and have developed and adopted guiding principles on electronic commerce, facilitate universal access and interoperability, build trust in the electronic marketplace, define the legal framework for electronic commerce taxation, and play a leadership role in internationalization. Revenue Canada continues to review and improve its compliance programs to ensure that they are as efficient and effective as possible. Compliance programs will evolve to take into account electronic commerce. The crux of the legislation in Canada as guidance for Pakistan is that government should establish certification council for purpose of providing license to certification authorities but no response has seen from any equators as provided in electronic transaction ordinance 2002 and also the consistency of the e-tax policy will provide suitable tax culture and appropriate adjudication of tax issues.

3. Singapore

The Singapore is going ahead of other Countries in providing legal frame work for e-commerce transaction which in term is paving way for implementation and legislation of e-commerce taxation. The most foundation of Singapore e-commerce legal order drawn from the UNICITRAL model on law of digital signature laws and on electronic commerce, they have provided the mechanism that can implement licensing of certification authorities. The Singapore Electronic Transactions Act passed in June 1998 provides a framework for the legal definition electronic commerce, electronic signatures, digital signatures and electronic records . Singapore has promulgated the 1999 Singapore Electronic Transactions Certification Authority Regulations; the Singapore Security Guidelines for Certification Authorities and the 1998 Singapore Electronic Transactions Act making it one of the first complete on-line countries. Singapore has a goal to promote e-commerce trading and also to make her being a trusted hub of E-Commerce for both the domestic and international markets which in term will promote e-tax culture and its administration. Currently, Singapore is imposing 3 percent VAT on e-commerce services rendered within her jurisdiction, that is very flexible and reasonable system of imposing of taxation, but the imposition of the taxation made easy because of promulgation of Electronic Transaction and establishment of certification council with in depth input to the Courts for legal adjudication of e-commerce tax dispute. The Electronic Transaction Ordinance, 2002 of Pakistan has taken its sources from UNICITRAL and like that of Singapore which is appreciable legislation in region as to avoid any conflict of law.

4. Australia

Australia’s Attorney General’s office has promulgated the legislation based upon a report of the Electronic Commerce Expert Group which identified a wide range of fundamental legal issues confronted in way of proper implementation of electronic commerce taxation and have evolved the broad policy options for the way in which these legal issues could be resolved. In considered their options they based their principles upon the UNICITRAL Model Law Principles; “Functional Equivalency” and “Technology Neutrality”. Australia has opted the permanent establishment and fixture as primary source of collection of e-commerce taxation negating all other principle of right to impose taxations. UNICITRAL model on e-commerce could provide uniformity in law and could lead to avoidance of international conflict of law which could in terms avoid the problems impeded in way of legislation, execution and adjudication e-commerce tax collection. 9.3. Role of World Institutes for evolving rules of e-commerce taxation Electronic Commerce particularly is carried on over the Internet is in itself Global in nature. The actions in regulating by any one of the domestic states will have very little impact unless they are part of a larger international regulations are not corrected. The international institutions and organizations have various mandates and interests in promoting electronic commerce, and providing solutions to the legal issues encountered by average business person as new medium of conducting of e-transactions. Some of these legal issues I have been highlighted in my paper.

Adil Waseem

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