Blurring the separation of powers – a legal and political study of the phenomenon of tax administrations moving from the executive branch towards the legislative branch

Abstract

This article elucidates the more recent developments concerning the role and mandate of tax administrations and the consequential contemporary challenges that these events pose to democracy, in particular the separation of powers. In some jurisdictions, there has been a noticeable evolution whereby tax administrations have moved from being the executive branch, stated differently, enforcing tax laws, and collecting tax revenues, towards being part of the legislative branch. The Covid-19 pandemic and the emergency mandates that were enacted amidst it facilitated various governmental agencies, such as the tax administration, to gain greater numbers of mandates and to operate without boundaries due to the ongoing crisis. However, the extension of the mandate given to tax administrations was already noticeable in some jurisdictions before the pandemic with Sweden being one good example, a pre-existing process that the author argues has been enabled and exacerbated by the last three decades of international tax developments at the OECD and EU levels in connection to the regulation of international tax competition and harmful tax practices. Sweden is used as a case study, but the findings are applicable to a multitude of jurisdictions given the nature of the topic and subsequent discussions.

Blurring the separation of powers – a legal and political study of the phenomenon of tax administrations moving from the executive branch towards the legislative branch