The use of tax havens for the international avoidance of income taxation to a significant extent is based on the formal or actual lack of international cooperation with the country of tax residence of the entity undertaking the action of the so-called international tax optimization.
Therefore, from the perspective of a state wishing to counter such action, a wide range of international cooperation in tax and carnoscar matters is fundamental. The cooperation of countries without harmful tax competition is reflected in the provision of information and legal assistance to each other in tax and tax matters.
The legal basis for this aid is most often bilateral double taxation agreements. At the same time, it is common international practice not to sign these agreements with countries deemed to be applying harmful tax competition, which is an expression of a specific political and economic ostracism towards these regimes130.
This practice is also dictated by the fact that tax havens do not accept the generally accepted standard of a double taxation agreement, the OECD Model Convention, agreeing to a limited scope of contractual cooperation in widely understood tax matters131.
It needs to be stressed that the effective scope of international cooperation and the exchange of information from tax havens is significantly narrower than the formal legal scope of this cooperation.
The various lists of countries (territories) considered to be applying harmful tax competition vary significantly, resulting in a far-reaching inconsistency of the global system of countering harmful tax competition and, inter alia, the possibility for interested parties to make effective use of contractual advantages (treaty-shopping) based on a network of subsidiaries located in different countries, as well as the possibility of both avoidance and tax evasion by using several subsidiaries in different jurisdictions132.
Both the absence of double taxation agreements and the signing of agreements on the exchange of information in tax matters are, in principle, tantamount to the impossibility of receiving such assistance from national authorities (territory).
It should be stressed that the effective lack of international cooperation in tax matters can also be referred to when a State (territory) considered to be tax harmful and to date refusing international tax cooperation has signed a tax information exchange agreement with another State.
It should be stressed that the effective lack of international cooperation in tax matters can also be referred to when a State (territory) considered to be tax harmful and to date refusing international tax cooperation has signed a tax information exchange agreement with another State.
This status quo is a consequence of far-reaching restrictions in national law on the possibility of obtaining any information about international companies located in their territories.
Agreements on the exchange of information in tax matters are a particular category of bilateral agreements which are generally applicable to countries refusing to accept an internationally agreed tax standard, i.e. double taxation agreements133.
From 2008 tax havens have begun signing contracts guaranteeing the standard of cooperation required by the international community. This standard is the Model Agreement on the exchange of information in tax matters with 2002[134].
From a global perspective, despite the dynamic increase in the number of contracts signed by the regimes commonly regarded as applying harmful tax competition, the network of these agreements is far from optimal, and several tax havens still refuse to accept internationally agreed legislation
the standard of tax cooperation, which makes it impossible to obtain any information in cases of both tax strictness and carno-carb character for those countries (territories) even in formal terms135.
Formal or effective non-cooperation by regimes deemed to be applying harmful tax competition in most cases makes it impossible to prove a breach of tax law in the country of residence of the entity concerned, in particular in the case of the use of an intermediary in the transfer of profits to such territory.
As a result, the information embargo formally or effectively applied by tax havens is the cause of failure to prosecute the use of these regimes in such a way as to affect the national law of the home tax residence of the taxpayer136.
The starting point for discussing the scope and limitations of international tax cooperation is the OECD acquis, not of a normative nature, but a model for both double taxation avoidance and tax exchange agreements.
The differentiated legal status of the different solutions to international law is an element which weakens the mechanisms against harmful tax competition.
The legal status of the regulation of international organisations is often not consistent with the legal arrangements created by these organisations and the legal status of the solutions created by the organisation is not always dependent on the status of the organisation and granted to it under the international prerogatives agreement.
As decided Article 90(1) The Constitution of the Republic of Poland may, on the basis of an international agreement, delegate to an international organisation or international body the powers of state authorities in certain matters.
This provision is a constitutional basis for the issuance by international organisations, which are members of Poland, of normative acts of law having binding force on the Polish State.
International agreements setting up individual national organisations as a result of a longer instalment procedure Article 90(2) or section 3 The Constitution of the Republic of Poland, occupy an overarching position towards ordinary laws.
Moreover, based on Article 91(3) The Constitution of the Republic of Poland, if the international agreement establishing an international organisation so provides, then the law by it is directly applicable, having priority in the event of a collision with laws.
This provision is therefore the basis for the direct application of European law. Agreements establishing international organisations do not always grant these organisations the right to legislate binding laws.
For example, the OECD acquis is non-normative and the EU, which is also a formal international organisation, can issue acts of law to which Member States must adapt, and can also be the basis for challenging decisions taken by national authorities by nationals of a Member State137.
So you can talk about two layers of international law and two types of international tax cooperation – normative and non-normative.
Non-normative regulations are not legally binding on the Member States of the organisation concerned and their importance, including legislative ones, is expressed in an extra-legal aspect138.
If a certain group of countries has decided to set up an international organisation with specific objectives, it is without doubt the will of these countries to work smoothly to achieve these objectives139.
The legal solutions developed by such an organisation, despite the lack of binding power, can play an important role in the mutual relations of the Member States, affect their internal legislation, as well as the legal and economic conditions of relations with the States third140. The OECD legal acquis is the best example of this.
In addition, national law is based on the principle of complying with the recommendations or other non-normative demands of international organisations. The principle of pacta sunt servanda, although it remains unwritten, since the Romanum Empire has shaped interstate relations, not only in the circle of European culture of law141.
As a result, if certain countries have decided to set up an international organisation and have committed themselves to pursue their objectives in its forum, it should be assumed that these countries are obliged to take all necessary steps towards each other to achieve these objectives142.
It needs to be stressed that the OECD legal arrangements in this area are, despite the lack of normative character, at a higher level of development than any other international or national standards143.