The Ethics of Tax Cloning

Abstract

During the past decade, stories have appeared from time to time in the tax press recounting Western (and particularly American) influence on the tax reform process in the transition countries of Central and Eastern Europe and the former Soviet Union. This article considers the propagation of Western tax rules in these countries from an ethical perspective, focusing on the relationship between American tax experts and the transition countries that they advise. Arguing that this relationship is fiduciary in nature, the article begins the process of exploring the relationship's ethical boundaries, employing the norms that govern the analogous attorney-client relationship as a benchmark.

Before taking up the task of developing ethical guidelines for tax cloning, however, the article first suggests that the term legal cloning replace the term legal transplants as the conventional means of referring to the propagation of legal rules. This change in terminology would not only more accurately describe the process of effectuating the penetration or importation of legal rules, but, because of the decidedly negative connotation of the word cloning, would also tend to evoke the ethical dimension of this phenomenon and add a needed dose of caution to attempts at propagating Western tax rules in transition countries.

Then, given the aptness of the cloning analogy, the article turns to the bioethics debate over human cloning for aid in developing ethical guidelines for tax cloning. After analyzing the arguments made by opponents and proponents of human cloning, it is concluded that the principle of nonmaleficence is at the core of this debate. The article next turns to the attorney-client relationship, in its role as benchmark for developing ethical guidelines for tax cloning, and analyzes the ethical standards governing the professional conduct of lawyers to determine whether the principle of nonmaleficence also serves as part of the general framework for analyzing problems in legal ethics. Determining that it does, the article concludes by suffusing the principle of nonmaleficence - in its specific application to the context of tax cloning - with content and meaning by describing the extant comparative law literature on issues related to legal cloning and synthesizing from it ethical guidelines that American tax experts can employ when considering the propagation of Western tax rules in transition countries.

Keywords: Tax, transition countries, Central Europe, Eastern Europe, Soviet Union, newly independent states, legal transplants, legal cloning, ethics

JEL Classification: K33, K34