The so-called collaborative economy is one of the economic sectors born under the digitalisation of the economy which has, in recent times, generated interest for its tax implications. As to what we can include in this concept, the definitions are varied and include different economic activities, but to simplify we can bring up the definition given by the European Commission in its 2016 communication “A European Agenda for the collaborative economy“, The term “collaborative economy” refers to business models in which activities are facilitated through collaborative platforms that create an open market for the temporary use of goods or services often offered by individuals.

The growth of this way of doing business has undoubtedly attracted the growing attention of the authorities, not only tax authorities. This growth is still scarce in relative terms, but in process of expansion. In 2015, it was estimated that in the EU, the gross revenues of collaborative platforms and providers amounted to 28,000 million euros.

In Spain, this phenomenon began to be known between 2012 and 2013, especially in the tourism sector, and in 2014 in the transport sector.

One of the effects of this growth has been a change in the economic nature of the exchanges. At the beginning, the phenomenon allowed an exchange of goods and services between individuals. Now it has resulted in a model of intermediation services in which both individuals and more and more professionals businesses participate. This has complicated the legal framework, and not only the tax framework, applicable to them. A proof of this has been the ruling of the EU Court of Justice of December 20, 2017 on UBER or the ruling of the Central London Labor Court of 2016 related to the same company.

The collaborative economy involves three economic agents: the service providers that can be individuals offering services on an occasional basis or providers of professional services; the users interested in the goods or services offered; and the platforms that connect users and service providers.

When it comes to ensuring the proper compliance of tax obligations by each of the participating actors, perhaps the main challenge that tax administrations have to face is the difficulty of accessing information on the operations carried out through the platforms.  Many times the information that may be in the possession of the platform is in a jurisdiction different from the jurisdiction where the platform has its tax residence, which in turn may be different from the jurisdiction of who has obtained income using the platform to offer goods or services. The exchange of international information, as it is configured today, has limitations that do not allow solving the information access issues. Perhaps it is necessary to reflect on a change in the parameters on which article 26 of the OECD Model Convention is based, in the same way that at that time a step was taken with the requirements on groups of taxpayers, or take another step and include this information within the framework of the automatic exchange of information.

Given this scenario, States are adopting various strategies aimed at accessing information, and there are States that have chosen to seek a cooperation agreement with the platforms, the most paradigmatic being that reached by the Estonian Administration with a platform for the provision of drivers’ services; through this agreement, and with the consent of the drivers, the platform informs the Administration about the income obtained by each one of them. Other countries such as Mexico or Ecuador have reached agreements for the platforms to facilitate voluntary compliance with their drivers’ tax obligations.

Other States have opted to legally demand that the platforms provide information periodically, Spain has focused on the companies that are intermediate in the market of tourist housing leases, demanding information on ownership, property identification, transferees, amount received … Italy It has gone even further by forcing intermediaries to make a withholding on gross amounts paid to users.

Another challenge is posed by the taxation of the platforms themselves, since as in other types of businesses, which can be argued to have always existed (nobody doubts that the exchange of goods between individuals is not new), digitization has facilitated their dematerialization in the jurisdictions in which they operate. These internet-based platforms do not need a physical presence (or at least a very small one) in the countries where the users or service providers are to develop an intense economic activity and obtain income generated in them. As with other economic operators with a broad digital base, the current paradigms of international taxation have proved insufficient to guarantee the adequacy of taxation to the ways of doing business. This lack of adaptation has been identified in the BEPS Project and an attempt has been made to respond, but with clearly insufficient measures because they are still based on the traditional principles of international taxation that pivot on the physical presence as a determining element of the capitation of income to a jurisdiction, principle included in both the model OECD and the UN.

The answers given with the BEPS Project, whether the modification of Article 5 regarding the configuration of the permanent establishment, the OECD Guidelines, especially on intangibles, anti-hybrid standards, do not seem to provide a clear solution to the problem, at least in the short term. The recent report of the Task Force of Digital Economy (Tax Challenges Arising from Digitalisation – Interim Report 2018) shows a not very encouraging panorama on how the countries that have signed the Multilateral Agreement have accepted the measures that could respond to some of the problems posed by the digital economy, especially those referring to changes in the permanent establishment. Further evidence of the lack of consensus is the fifth chapter of the interim report of 2018 that limits itself to classifying the countries’ position into three groups, but without a proposal for a solution.

Perhaps this situation is what has led some countries to consider, or even to adopt (Italy or India) a temporary measure with which to tax the income of certain digital businesses, while the recent initiative of the European Union or the one contained in the sixth chapter of the aforementioned interim report on the challenges of the digitalization of the economy are in this sense paradigmatic.

We can conclude affirming that, as in other areas of the digital economy, in the platform-based collaborative economy sector we are beginning to adopt measures that can guarantee compliance with tax obligations by the actors involved. Both from the point of view of the information collection and tax policy measures that guarantee a taxation consistent with the changes produced in the business models. In the coming times we will witness the implementation of unilateral measures more or less coordinated by some countries, and this is likely to further complicate the tax scenario.

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