Το ζήτημα της φορολόγησης του ηλεκτρονικού εμπορίου

SUMMARY«THE SUBJECT OF TAXATION OF ELECTRONIC COMMERCE» With this doctoral thesis we attempt to approach the subject of taxation of electronic commerce, in order to analyze the difficulties to identify taxable transactions and propose the main principles of a system for taxation. This thesis deals with direct electronic commerce, in which lies the main research interest as in the indirect electronic commerce traditional taxation principles are not differentiated. Already from the beginning of the 1190s taxation of digital economy has drawn the attention of tax policy makers. On the one hand, the European Union, in the context of the “EU 2020” strategy, has selected the promotion of digital economy as a key point to the revamping of the economy and the exit from the financial crisis, whilst on the other hand, the specific aspects of taxation of the digital economy are being examined on a European and international level. The thesis is divided in five parts: in the first part, definitions are given on the internet, the electronic commerce and the factors that affect them, the second part deals with the current legislative framework for electronic commerce, in the third part the main principles for direct and indirect taxation for the electronic commerce are analyzed, the fourth part deals with electronic invoicing and finally, in the last part, suggestions and conclusions are formulated.As a matter of method, the application of classical theoretical concepts of tax law in the electronic environment is attempted. As a key challenge of a tax system for e-commerce we recognize the need to combine fiscal revenues and in the same time create and improve the current legislative framework, so that taxation does not constitute a barrier to economic development. In this context, the aim of this thesis is to extract useful, useable conclusions for both Greek and foreign tax authorities in the European Union and in the OECD level. In the first part definitions are listed and the concepts of the Internet, the World Wide Web, electronic commerce and, especially, direct ecommerce are explained. E-commerce is defined as the trade conducted by electronic means, ie, that is based on electronic data transmission, electronically conducted transactions, providing products and services for a fee using electronic equipment for communicating at a distance. The term indirect electronic commerce is used when it comes to electronic ordering of tangible goods that can be delivered only by traditional means, such as mail. Direct is characterized the electronic commerce that involves ordering, payment and delivery of intangible goods and services. Transactions of direct e-commerce transactions are divided into: (a) between business (Business to Business, B2B), b) business to consumer (Business to Consumer, B2C), c) business-Administration (Business to Administration), and d) between users (User to User). The second part is an analysis of the current EU regulatory framework for electronic commerce, as well as national legislation, which has transposed it. In the context of European Law the main text is Directive 2000/31/EC, which aims to promote the functioning of the internal market by ensuring the free movement of information society services information between Member States and identifies the concepts of "services of information society", "provider", "established service provider", "recipient of the service", "consumer", "commercial communications" and "regulated profession." Member States ensure that providing information society services cannot be subject to prior authorization or any other requirement having equivalent effect. As noted in the Directive, the Community legislature considered that the existing provisions of the national law of the Member States may apply respectively to e-commerce transactions, while according to the principle of subsidiarity, the European Union may interfere, only in areas deemed necessary to harmonize national laws in order to allow the free operation of the internal market. Moreover, in accordance with the principle of proportionality, the measures provided should be limited to the minimum necessary to achieve the objective of the proper functioning of the internal market. The third part analyzes the general principles of both direct and indirect taxation of e-commerce. This chapter examines the guidelines that have been adopted at OECD level and in the European Commission. First, the common international guidelines with respect to taxes on consumption, which were adopted at the Council of the OECD in Ottawa in 1998 on electronic commerce are presented: that is, neutrality [taxation should be neutral and not make distinctions between electronic and traditional commerce], efficiency [compliance costs for taxpayers and administrative costs for tax administrations should be minimized], certainty and simplicity [clear and simple tax rules so that taxpayers are aware of the tax consequences of a transaction], effectiveness and fairness [tax laws should be effective and prevent tax avoidance or evasion at most], flexibility [tax systems need to be flexible and dynamic to keep pace with developments in technology and commerce]. In this context it is noted that national legislation and international law principles of taxation on electronic commerce should be structured in such a way as to maintain fiscal sovereignty, to achieve equal distribution of the tax base of e-commerce between the states and to avoid double taxation and non-taxation. Moreover, the guidelines for consumption taxation adopted in 2001 by the Commission for Fiscal Affairs of the OECD for the consumption taxation of cross-border services and intangible assets, in the context of electronic commerce are discussed. In particular, for transactions between businesses (B2B), the place of consumption will be considered as being the place where the recipient has established his business presence, while transactions between businesses and private individuals (B2C), the place of consumption will be considered the usual residence of the customer. Subsequently, the particular issues that arise for direct and indirect taxation of the digital economy are analyzed. In the field of direct taxation, the concept of global taxation of income (residence criterion and the criterion of the source of income) is examined. For the application of double tax treaties, it is observed that the location of a business is determined primarily by the place of effective management. However, in e-commerce, the concept of "place of effective management" can no longer be applied with ease. In this context, the draft published by the OECD to discuss the interpretation of the term "effective management" with relative factors and prioritization criteria proposed to be taken into account when determining the "place of effective management" is explained. Then, it is argued that the specific tax issues raised in relation to direct taxation are primarily to investigate whether the traditional concepts of permanent establishment and the State of source should be revised, the characterization of income and finally, to investigate whether the arm's length principle is sufficient for transfer pricing transactions in the digital economy, as well as the investigation whether the income from new business models of the digital economy are characterized as profits from the sale of goods or services or as rights (royalties).On the question of the permanent establishment, the OECD report which includes comments on the application of Article 5 of the Model Convention for the permanent establishment and final modifications to the comments on Article 5 for electronic commerce are presented. Subsequently, theories to challenge the concept of the permanent establishment, the arguments for maintaining the principle of permanent establishment as a criterion for direct taxation of e-commerce and alternative proposals to replace the concept of permanent establishment are analyzed extensively. It is alleged that the issue of the taxation of income in the State of origin or residence in international transactions is directly related to the characterization of this income. Special issues arise for the characterization of electronic services and intangible digitized products, which can be classified as services, as rights or goods. As mentioned, income from royalties is primarily subject to withholding tax in the source state and income derived from the sale of goods or services is generally subject to income tax in the State of the permanent establishment.It is noted that the special characteristics of electronic commerce make it particularly attractive for abusive transfer pricing practices in the digital business sectors. These transactions will be more difficult to identify due to the transfer of entrepreneurship in the electronic environment. A first issue identified is the displacement of the actual place that economic activity takes place, for example by selecting the country that has the lowest tax rate, regardless of where the transaction actually took place. A second issue is the difficulty of applying conventional principles for intra-group transactions in the digital economy, resulting in the transfer of taxable income or complete tax avoidance. It is argued that if, according to the analysis (in section 3.1.) the criteria for defining a server as a permanent establishment are met, the next issue to be addressed is how much income can be distributed / attributed to such a permanent establishment. Furthermore, the emerging issues of income distribution and transfer pricing in intra-group transactions are addressed. It is recognized that, when applying the traditional principles of profit-sharing it should be borne in mind that the use of the Internet has changed the business models of multinational companies, which include gathering information data, other business synergies, particularl

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