Tax Polymath - A life in international taxation - Review
Tax Polymath: A Life in International Taxation – Essays in Honour of John F Avery Jones, by Philip Baker and Catherine Bobbett
For several decades, John Avery Jones has stood at the pinnacle of the almost uniquely English phenomenon of the academic tax practitioner, a term that might describe the small group of tax professionals who enjoy the highest standing in the profession while simultaneously holding visiting positions as academics and drafting articles that are often vastly superior to those generated by the leading full-time academics. To the relief of those who valued his enormous contributions to tax scholarship, his appointment first as a Special Commissioner to the VAT tribunal and then as a judge of the Tax Tribunal, had no discernible impact on the volume or quality of his academic contributions and writing, contributions that were in fact enhanced by his respected judgments.
In April 2010, on the occasion of his retirement at the age of 70 from the tax Bench, a conference to honour his work was held at the London School of Economics (LSE), where he was a visiting professor.1 Leading practitioners and academics from around the world were invited to present papers and not surprisingly all accepted. Equally unsurprisingly, available places at the conference were quickly filled. However, just days before the conference was schedule to begin, arrangements were thrown on their head when volcanic dust from an Icelandic volcano closed air traffic over Europe. Some continental participants were able to rebook passage on the Eurostar but no transport was available for those from farther afield. The technical team at LSE solved the problem neatly. The program was rearranged to suit time differences and Skype arrangements were made for speakers from Australia and North America. The technology was outstanding, allowing full two-way participation – and the conference proved a great success.
For non-participants, the most valuable legacy of the conference was the set of papers it produced. The volume was too great for a journal or book and a decision was made to split the work for publication, with 12 appearing in a special (and very large!) edition of the British Tax Review and 20 published in the volume being reviewed.
The volume, with a focus on tax treaties, is divided into three parts. The first part on general treaty issues contains four papers, the second part on specific treaty issues has another 13 papers and the closing part entitled “miscellaneous topics” features three papers. Four of the “specific” issue treaty papers are country specific, looking at particular issues in Japan, the Netherlands, Sweden and Germany, and some of the general treaty papers and miscellaneous topic papers are also fairly country specific.
One of the most interesting of the papers dealing with issues other than treaties is that by Guglielmo Maisto on the exercise of legislative taxing powers in occupied territories. The paper is a well-researched study of international law and tax, drawing on examples that range from German occupations of World War II through to the occupation of Iraq, and case law on the extension of Israeli tax to the occupied West Bank. Maisto is a welcome addition to any tax volume and particularly fitting in this one as he also exemplifies that rare breed of tax professionals (not English in this case) with an academic bent and ability to research and write academic treatises of the very highest quality.
Indeed, the large number of practitioner/academic participants in the volume – including contributors from England, France, Austria, Belgium, the Netherlands, and Germany – is fitting given Avery Jones’ straddle of the professional and academic world. It illustrates, too, how closely theoria and praxis are intertwined in tax law. If there is evidence in the volume of the different starting points of the two camps, it is very well hidden. To be sure, the volume features some of the world’s leading academics and practitioners and their work may not be reflective of the normal outputs by the two groups. For the most part, however, papers in the volume by both practitioners and academics are based on a similar mould, setting out theoretical benchmarks, surveying relevant case law or administrative practice and finishing with recommendations for change to bring judicial or administrative results in line with a theoretical benchmark.
The range of topics in the papers also reflects well on the catholic interests of international tax academics and practitioners. Papers covering more traditional international treaty topics include chapters looking at ambulatory versus static interpretation of treaties (Jacques Sasseville of the OECD), the application of the permanent establishment concept to e-commerce arrangements (Daniel Lüthi, a Swiss consultant), the confusing international precedents on the meaning of beneficial ownership (Jinyan Li of Osgoode Hall Law School), and exemption versus credits to relieve double taxation (Jürgen Lüdicke, PwC). More esoteric topics include a paper by Philip Baker (Grays Inn, London) on double tax treaties and human rights, or that of Kees van Raad (University of Leiden) who asks if a truck crossing the country can constitute a permanent establishment in the jurisdiction.
One of the most interesting contributions to the volume is David Ward’s paper on the use of historical materials in interpreting tax treaties. Ward, a close friend of Avery Jones, was a leading international tax lawyer and often a contributor to Avery Jones’ academic papers. Tragically, Ward died in a skiing accident shortly before the conference and his paper, a wonderful contribution to the volume, was read for him.
Rarely are there opportunities to gather together as many tax luminaries as was done for the Avery Jones conference. It is in some ways a shame that the conference papers had to be split between a volume and journal issue. Still, the merit of the book taken as a stand alone work is undeniable. It will be a valuable addition to any international tax library.
1 As it turned out, the retirement was postponed by a year so he could finish a complex transfer pricing case he was hearing at the time.