Restoring the place of effective management as a tiebreaker rule for corporate residence

Abstract

Articulating an optimal global standard for determining corporate residency for tax purposes is notoriously difficult, especially given the competing theories underpinning corporate taxation. However, exploring this topic is key when considered against the backdrop of an unprecedented and intensifying examination of the taxing rights of corporations by the global community. Since 2013, the OECD has endeavoured to codify international tax rules governing cross‑border transactions under the Base Erosion and Profit Shifting (BEPS) project and, as part of these efforts, removed the corporate residence tiebreaker rule that hinged on the place of effective management in its model tax convention, with the United Nations (UN) following suit. This article considers an optimal basis for attributing residency to corporations. It examines the background and competing theories in relation to corporate residency in both domestic and international tax contexts. It argues that the place of effective management remains fit for purpose on a view that strategic and high‑level managerial activities provide a requisite economic nexus to establish taxing rights. The lack of a standard tiebreaker rule for corporate residence is expected to exacerbate international tax conflicts at a conceptual level and thus advocates reviving place of effective management as a tiebreaker rule for corporate residence. The article notes the inefficiencies in the mutual agreement procedure as a mechanism for resolving dual‑residency disputes. When dual residency arises, a legislative model based on the place of effective management should be restored and supplemented by a second‑order hierarchical order of residency tests to address the totality of the circumstances.