The Role of the Rule of Reason, the Standard of Reasonableness and the Principle of Proportionality in Assessing Fair Taxation

Abstract

The central question in this thesis asks how the rule of reason, the standard of reasonableness and the principle of proportionality may function in assessing fair individual taxation and efficient and fair tax systems. This question is answered by investigating the case law of selected jurisdictions on the standard of reasonableness and the principle of proportionality particularly regarding human rights and international trade in their interaction with taxation. This work also discusses how the international canons of taxation, (equity, certainty, and economy) may be balanced via proportionality coupled with reasonableness. Would there be an optimal solution to combine those canons and other fundamental tax principles? How would be possible and desirable in terms of efficiency and fairness to apply an international standard of reasonableness in tandem with the principle of proportionality to tax issues that have reciprocal consequences in different jurisdictions, such as cross-border situations addressing tax avoidance, fiscal supervision, non-discrimination, and other tax issues that may go to the foundations of many tax systems? The hypothesis that is also tested is whether they may be regarded as overarching principles of law. The above fundamental questions are also posed in the light of international human rights that may be the ground and the foundation for fair taxation. Nevertheless, it is worth noting that the subject of this thesis is proportionality and reasonableness in the interaction of fundamental freedoms, fundamental rights - with some regard to trade and taxation. The focus is not on any specific issues that are analysed as an illustration of how those principles may work and whether or not they achieve fairness.