Subject: RE: OTP, OECD and tax collection

From: "Smith, Chris" <[email-masked]>
Date: Mon, 5 Oct 1998 16:09:00 -0400

This thread seems to be one of the best reasons to re-iterate something

     that has been discussed a few times before. This time, I'm going to do 
     the extreme version, to put it in perspective.
     
     The core of OTP doesn't care about software. OTP is a *protocol*. We 
     have carefully stayed largely out of the area of 'specifying software' 
     so that there is opportunity for choice in human interfaces, choice in 
     software architectures, and a chance for vendor differentiation. There 
     has been some discussion about APIs, but those too have stayed out of 
     the human interface area.
     
     Based on your suggestion below, I think all my software would have 
     carry a warning that "use of the software with the options you have 
     identified could result in certain legal consequences". Some of these 
     are rather negative consequences - even my 5 year old PDA could result 
     in me being subject to defamation charges depending on how I use it.
     
     Come to think of it, my pencil should come with the same warning...
     
     As far as the further discussion below, I think the extraterritorial 
     discussion is a red herring. As far as 'my' country is concerned, I am 
     free to buy and sell foreign currencies, and to purchase goods and 
     services anywhere in the world.
     
     Now, if I want to bring these into 'my' country, then the government 
     may insist that I stop at the border, and ensure them that there is a 
     level playing field as regards taxation - that is, I would have to pay 
     tax X if I bought that good inside the country, so if I bring the good 
     in from outside, I still owe the tax X.
     
     If I don't like this, I just leave it outside the country.
     
     The proposals I have seen simply allow the merchant/delivery agent to 
     guarantee that goods to be shipped to 'my' country have already paid 
     taxes as per the above discussion, and may move expeditiously to the 
     purchaser's location, not subject to many of the usual stops and 
     inspections which are necessary without a co-operative tax 
     infrastructure.
     
     This state exists today between Canada and the U.S.; large U.S. 
     mail-order merchants are interested in remitting the G.S.T (Good and 
     Services Tax) directly to the Canadian government, because then their 
     goods, once ordered, can be shipped directly and quickly to consumers. 
     This benefits their Canadian customers, and the merchant sells more 
     goods. If OTP can help to simplify implementation of such a system for 
     online merchants, then many more companies see these benefits. The U.S.

     government will insist on some rigor around the process, but likely 
     views not collecting sales taxes for goods bound out-of-country as a 
     good thing, because U.S. merchants are then competitive abroad.
     
     Viewed from this point, I would suggest that it is essential that such 
     an infrastructure develop if international e-commerce is to succeed. If

     a merchant or manufacturer can make a significant and legitimate claim 
     that their local interests (and those of their customers and employees)

     are being damaged by international e-commerce, then many local 
     governments would move to take action. Since such moves are designed to

     protect local companies (and their employees) they would likely receive

     strong support where it matters - in votes. They are not likely going 
     to be swayed by the idea that all consumers can benefit if they will 
     just switch from real-world to e-commerce.
     
     What might they do?
     
     * insist that payment handlers charge a tax on purchases; for EXAMPLE, 
     banks might be told that credit card company ZZZ (to continue 
     operating in country X) must apply a tax to purchases outside of X 
     when the card was not present for the transaction.
     
     * move to mandatory licensing of service providers; let's be clear 
     here, I can't imagine anyone *liking* this idea, but if you threaten a 
     country's economic base, you'd be amazed what they will try. Some have 
     even been known to use warfare in the past...
     
     * change consumption taxes to income taxes; if they can't get it going 
     from you, they'll get it coming to you. (There are even good reasons 
     to think that this might be a positive step, not a negative one.)
     
     Many of us probably share the view that the above are not pleasant 
     options to consider. (Even members of governments may share that 
     view.) As a result, there is some incentive to look at a co-operative 
     tax infrastructure between countries. If the U.S. and Canada can agree 
     in this manner, then trade between them is subject to less friction 
     (friction which costs $), and the continent starts to be more 
     efficient. If the EEC wants to join the infrastructure and share in 
     the reduced friction, fine. If it doesn't, then fine. It will have to 
     continue to stop goods at the border and inspect them in accordance 
     with its trade priorities.

     
______________________________ Reply Separator
_________________________________
Subject: Re: OTP, OECD and tax collection
Author:  "John Messing" [SMTP:[email-masked]] at Internet 
Date:    1998-10-05 10:33

For starters, the group might consider deciding whether to give a warning to

potential users of the software that use of the software with the options 
you have identified could result in certain legal consequences, in order to 
shield OTP from potential liability, in case a court disagreed with your own

personal beliefs. Ancillary to that decision, you might consider obtaining 
qualified legal advice as to the potential liability of OTP and/or its 
active members with respect to such issues.
     
-----Original Message-----
From: Donald E. Eastlake 3rd <[email-masked]> 
To: John Messing <[email-masked]>
Cc: [email-masked] <[email-masked]>; Steve Schear 
<[email-masked]>
Date: Sunday, October 04, 1998 7:34 PM 
Subject: Re: OTP, OECD and tax collection

>
>It is up to the consensus of this working group as to what it wants to 
>include, exclude, ignore, or consider in future versions of IOTP.  I 
>do not believe that the operation of software that permits certain 
>options to be activated at the operator's discretion, such as the 
>collection of taxes or the automatic copying of all messages to a law 
>enforcement authority, constitutes consent to the actual activation of 
>such options.
>
>I'd be interested in any concrete and specific suggestions you might 
>have to improve the IOTP protocol.
>
>From:  John Messing <[email-masked]>
>Message-ID:  <000801bdefb9$bfdd9500$7825c5a9@www..azstarnet.com> 
>To:  [email-masked], Steve Schear <[email-masked]> 
>Date:  Sun, 4 Oct 1998 10:09:27 -0700
>
>>This is one of those issues which is not as straightforward as it may 
first
>>appear. Apart from merchants whose businesses are physically located 
within
>>the borders of an EEC state, the power of the state to tax may depend upon

>>notions of extraterritorial application of the tax laws. Thus, if an
>
>My understanding is that there is some motion towards an agreement 
>within the OECD nations which would eliminate problems of 
>extraterritorial application of law for those countries.
>
>>American corporation sells goods to a German citizen and has no office or 
>>outlet in Germany, then in a non-virtual transaction, there is little 
legal
>>basis for Germany to claim the right to tax the transaction. The German 
>
>It is my understanding that many places, such as Massachusetts, where 
>I reside, have "sales and use" taxes which tax not just items sold 
>within their territory, but also items imported into and used within 
>their territory.
>
>>citizen had to have been physically located in another jurisdiction to 
have
>>completed the purchase. But in a virtual transaction where the Internet 
>>server and the seller are located physically outside of Germany, the 
>>situation may be less clear. If Germany claims the right to tax any 
>>transaction involving a buyer whose computer or delivery address is 
located
>>within its borders, a question will arise about the basis in international

>>law of the power to tax. To the extent that consent to tax is one such 
>>basis, then inclusion of software at the Internet server used by the 
seller
>>which permits German taxation through OTP could arguably be implied 
consent
>       ^^^^^^^
>
>>to tax -- a result perhaps never intended by OTP or the buyer. It is quite

>>conceivable that Germany would hire an American attorney to collect such 
>>taxes as postulated by this example through the American courts, which an 
>>American corporation could not ignore. Apart from the issue of taxation, 
>>there are other questions about extraterritorial applicable of laws, such 
as
>>digital signature legislation, which involve similar considerations. In 
>>order to avoid such questions, OTP refused to consider them in earlier 
>>drafts. Taking a position or refusing to take a position on such issues in

>>light of the German request probably will result practically in a 
>>substantive decision one way or the other, like it or not, which means 
that
>>such questions can no longer continue to be ignored as either a 
theoretical
>>or practical matter.
>
>Thanks,
>Donald
>
>>-----Original Message-----
>>From: Steve Schear <[email-masked]>
>>To: [email-masked] <[email-masked]> 
>>Date: Saturday, October 03, 1998 10:23 PM
>>Subject: RE: OTP, OECD and tax collection 
>>
>>
>>>David Burdett <[email-masked]> wrote:
>>>>Tax evasion is as old as the centuries. I doubt that OTP if its used for

>>>>tax collection by the governments will change peoples inclination to pay

>>>>(or not pay) one bit. The point is, if governments want to collect taxes

>>>>then they will find a way to do it and most merchants who have a 
>>>>reputation to protect will follow it.
>>>
>>>This is really a rear-view outlook.  If we were in the 16th century, its 
>>>like saying that because the Church has all this authority we're not 
going
>>>to use the press to print anything secular. 
>>>
>>>While it may be true that in the short run merchants with reputation may 
go
>>>along with this foolishness, as long as their risks are low consumers 
will
>>>shop wherever the price is lowest. 10% or more tax is enough separate 
most
>>>consumers from their guilt and place the loyal merchants at a 
considerable
>>>disadvantage. The complaint merchants will pressure the governments to 
get
>>>tough (regulation always favors the regulated). If governments are not 
able
>>>to pressure the non-complaint merchants, as I believe they will not (as 
>>>they were unable to stem the Eurodollar trading), this is the beginning 
of
>>>the end game for such taxes on the Net and perhaps in a broader sense as 
>>>more commerce moves to the Net and places local merchants at an 
increasing
>>>disadvantage.
>>>
>>>--Steve
>>>
>>>
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---

From: Steve Schear <[email-masked]>
Date: Tue, 6 Oct 1998 00:30:55 -0800

>     just switch from real-world to e-commerce.

Perhaps I harbor naieve view. I see the Internet as an opportunity to
enable global (but not international) space for communication, commerce and
culture. To any extent possible, I and many others on Net would like to see
emerging Internet standards which allow persons to operate as non-nation
state citizens.

>     What might they do?

Not much. Even though bearer forms of digital cash have been little more
than curiosities so far, this is unlikely to remain so.  Once DBCs become
easily and anonymously available it should spell the end to both
consumption and income taxes within a generation or so. Only VAT on
meatspace transactions within a country's borders and property taxes may be
reliably collectable. Nation states are no more likely to curtail DBCs and
their impact than the Church (with its on-pain-of-death punishments) was
able to keep the press from being used for anti-Catholic and secular
publication.

Once people and merchants realize they can ignore many taxes via Internet
commerce they will feel no more guilty or freightened than early VCR owers
were of copyright violations.

--Steve