Sunday, September 17, 2023

NYU Tax Policy Colloquium, week 1: Christine Kim's Taxing the Metaverse

 On this past Tuesday, the NYU Tax Policy Colloquium had its first "public" session of the year, thus completing the kickoff to our Year 28. Christine Kim was our guest, discussing her paper Taxing the Metaverse.

The paper defines the Metaverse as virtual worlds in which there is "economic activity," defined as consuming, creating, accumulating, or trading digital items with "real economic value." That in turn is defined as arising when the items can be converted into, or at least measured in terms of, a taxable currency such as U.S. dollars or crypto. [In the rest of this post, I will use "$$" to denote U.S. dollars.]

Some examples include the following:

1) Second Life: In this onlife simulation one can get "Linden dollars" in several different ways. You can earn them through business transactions in the sim world, or buy them for $$, or get some if you subscribe to Second Life rather than playing it for free. You can also sell Linden dollars for $$ on Paypal.

2) World of Warcraft: This online game requires paying a monthly subscription fee. But when you are there, you can earn "gold" inside the system, and make $$ by selling it or various types of items to other players.

3) Nonfungible tokens (NFTs): These are unique items that one can create digitally through Blockchain and then sell for $$ to whoever wants them. One can think of them as akin to, say, trading cards or unique art objects such as paintings.

Then a non-example, under the above definition: To brush up my French, which I learned to a decent degree in my pre-college years but have since spent a lifetime forgetting, I spend a little time most days on Duolingo, doing very gamified 5- or 10-minute French lessons. My "achievements" earn me "lingots." But, so far as I can tell, all I can do with these lingots is buy "streak freezes." Duolingo records how many days in a row I have done at least 1 lesson, but with a streak freeze I can take a day off and Duolingo won't treat it as breaking my consecutive-days streak. This presumably falls well short of "economic value," since I can't get $$ for my lingots or, so far as I know, get anything that is actually valuable for them. (I wouldn't pay any actual cash for a streak freeze.)

In the first three of these items, however, there sometimes is significant economic value. While most Second Life players don't get anything significant via Linden dollars, apparently someone became a millionaire that way. And there are a few World of Warcraft players who do pretty well. NFTs also have become big $$ generators for some individuals.

The paper is concerned with the big hitters from metaverses like these, not just for their own sake but on the view that there may be a lot more of this in the future. Mark Zuckerberg is not the only person who has guessed or bet that the Metaverse (consisting of all the individual metaverses) will become big in the future. For example, I found online a KPMG report positing that, by 2030, "we could be spending more time in the metaverse than in the real world. People will be applying for jobs, earning a living, meeting with friends, shopping, even getting married using the virtual capabilities of the metaverse."

I am not sure how capacious the "we" in this statement actually is. But suppose we have people making money as virtual real estate brokers on Second Life rather than as actual ones in physical reality. Or that, instead of being a tennis pro in the real world, one makes a living selling shields or whatever in WoW. Or that artists who would have made real-world paintings are instead selling NFTs. (This is already happening to a degree.) Then there might conceivably be greater urgency than there is today regarding taxing the Metaverse in a sufficiently similar manner to how we tax activity in the physical world.

At the consumer level, presumably the above "we" will continue to need actual food, a place to stay, etc. But suppose that one was perfectly happy to keep one's "real" consumption minimal, such that, like Hamlet without the bad dreams, one could "be bounded in a nutshell and count [one]self a king of infinite space." The paper aims to address today's heavy hitters in #1-3 above, with an eye towards preparing for this possible future.

Current tax treatment of Metaverse "income" generally involves taxing people when they get actual $$. The paper advocates generally taxing them sooner, i.e., on an accrual rather than a realization basis.

I see the paper as raising 3 main topics: (1) How should we evaluate taxing Metaverse "income' in general?, (2) Should we generally tax it sooner as the paper advocates?, and (3) How should tax jurisdiction over Metaverse items be allocated between countries?

1) How should we evaluate "taxing the Metaverse"? The paper sees a case for taxing anything in the Metaverse  that looks like income under the Haig-Simons definition, or that seems analogous to items in IRC Code section 61. I'd advocate going one turtle deeper and examining the efficiency and equity consequences of taxing versus not taxing it. (People sometimes add a third category to this, administrability, but I regard this as an aspect of the efficiency analysis.)

From an efficiency standpoint, deadweight loss results from tax-motivated substitution. But even a pure Haig-Simons income tax, as conventionally defined, doesn't tax everything. E.g., it reaches work (and market consumption) but not leisure. Thus a key question, with regard to taxing Metaverse items, is the extent to which they are serving as substitutes for taxable rather than nontaxable activity. For example, playing Second Life instead of reading books and going jogging is generally less of a concern than becoming a virtual real estate broker within it instead of an actual-world one.

Note also that earning WoW gold that offsets one's periodic subscription costs is probably less of a clearcut concern than earning $$ value in excess of that amount. The former might be viewed as reducing the expected cost of the consumption, which often is used as a proxy for its subjective value.

NFTs' closest substitutes presumably are various real-world art and trading card items of various kinds. These generally are taxed on a realization basis. This would tend to reduce the efficiency costs of taxing NFTs the same way, rather than on an accrual basis.

From an equity standpoint, the main issue is inequality. I would say that there are generally 3 types of reasons for caring about inequality: (a) because it can affect the marginal utility of $$ that might be taxed, (b) because it can affect the social consequences of inequality that people in the society actually subjectively experience, and (c) because it can affect the application of the observer's / policymaker's own inequality aversion, if any.

So, when people accumulate value of some kind in the Metaverse, does it affect any of these three things? The marginal utility of one's $$s is presumably greatly affected by convertibility into $$. As for the other two, it very much depends on one's framework. By analogy, consider two individuals who are identical in their circumstances and utility functions, except that A is in a happy and fulfilling relationship, while B wants to be but isn't. Clearly A is better-off than B. But does A therefore have lower marginal utility of $$? Not necessarily (although the answer would more clearly be Yes if one could somehow "buy" a fulfilling relationship for $$). Does this type of inequality in circumstances create social distress from inequality that could be mitigated by transferring $$ from A to B? Again not necessarily. (Consider the distinction that Robert Frank and others draw between positional and nonpositional goods.) And do you, if you are the observer, intuitively feel that this sort of inequality is wrong and needs mitigating via $$ transfers? Again not necessarily.

This is not to end the above conversation or reach any particular answer, but just to outline the inquiries that might need to be made.

2) Taxing sooner: I generally share the paper's inclination towards taxing accrued income "sooner" when this is sufficiently feasible. But one is reminded of the debates about currently taxing, say, publicly traded stock on an accrual basis when non-publicly traded, but otherwise similar, assets are not being taxed before realization. This makes the issues more complicated than they would otherwise be.

In discussing the paper with students in the class that we held the week before the public session, I noted the difficulties that arise when one wants to allow tax payments to be deferred, without deferral's reducing their present value, under an income tax. Under a perpetual, fixed-rate consumption tax, deferral does not benefit the taxpayer. E.g., suppose that the tax rate is 40% and the interest rate is 10%. Then, if you earn $100 and can either pay consumption tax of $40 this year or $44 in a year, deferral does not reduce the tax's present value. But under an income tax the effective tax rate, as to the whole, must rise with each year's  saving and reinvestment, if one is to avoid making deferral tax-beneficial. This creates complications that a huge scholarly literature has examined. 

The paper proposes adapting the so-called "ULTRA" method that David Gamage, Brian Galle, and Darien Shanske laid out in a recent paper. This method provides a mechanism that can be used either in a wealth tax or (with modest adaptations) to impose deferred income taxation that is present-value equivalent to current income taxation. But the paper suggests (and I have not had the chance to verify this) that applying it to Metaverse items would require knowing the path of fair market value, which might be feasible for some such items but again raises issues akin to those raised by the divide between publicly traded and non-publicly traded assets.

For Metaverse value that is convertible into $$, one current taxation method would be to pay the tax on a current basis in Lindens or "gold" or whatever, that the government would then immediately sell for $$. But this leads us directly to the next question, concerning tax jurisdiction.

3) Tax jurisdiction: Suppose that Individual A, who resides in Country X, earns income that we agree arose in Country Y. This, from X's standpoint it is foreign source income of a resident, and Y would tax it on a source basis. This brings us into the realm of international taxation and international tax policy, such as the decades-long debate regarding residence-based taxation versus source-based taxation.

A's Metaverse income potentially raises issues in this domain. One might think of it as arising "nowhere," or in virtual rather than physical space. Or one could try to give it a geographical source based on such considerations as where A was physically situated while earning it, or alternatively where the servers or the underlying metaverse-providing company is deemed to have been located.

Because we are dealing here with the taxation of an individual who (let us assume) is located in the space where he or she resides, I am inclined to see residence-based taxation as standing on strong ground. The physical location of corporations and other business entities is much more challenging to tax on a residence basis than that of particular individuals acting as such - both because the former might not literally "reside" anywhere, and because the normative links between a "person" and any given country may be far weaker where the "person" isn't an actual individual.

So, while we have gone pretty far in the international tax realm away from considering residence-based taxation a very good approach for taxing corporations and other business entities, for individuals we are still (I think) pretty much still there, despite the issues presented by migration, the rise of "tax nomads," etcetera.

Still, it is common for the Country Y's of the world to want to tax the income that they reasonably deem to have been earned there by individuals who reside in Country Y. (And of course every country is X in some instances, and Y in other instances.) And, to paraphrase Seinfeld, it's not as if there's anything wrong with that. If I'm an American but I am earning income by selling something to Britishers, there is no compelling normative argument against letting the UK tax that income if the UK likes. (It is not as if some wholly unrelated third country, say Belgium, is inviting international tax chaos by trying to tax this income despite, let us posit, any particular relationship between it and either the income or me.) But once this happens we do have a bit of a problem as between US and UK taxes, if we don't want to tax-penalize cross-border activity.

Still, the motivation to tax such "foreign source income" is probably strongest if the source jurisdiction has some sort of market power that can cause the incidence of the tax to fall, at least in some degree, on the nonresident individual. This might not be the case either if the server happens to be there, or perhaps even if the Metaverse business happens to be there. (We are discussing here taxing the Metaverse user, not the business itself.)

Much of the time, therefore, there may be little reason to take seriously the prospect of source-based, as distinct from residence-based, taxation of people's Metaverse income. But then again, this conclusion will not always follow. E.g., suppose that my business model as a WoW savant is to sell gold and shields to Britishers in particular. The issues raised might not be entirely dissimilar to those posed by, say, Facebook's (I'm sorry, Meta's) earning income in the UK, and thus facing digital services taxes that might conceivably be replaced someday (but I'm not betting on it) by taxes under Pillar 1. Or, at least further analysis would be needed to establish whether these two cases are relevantly different. (But I won't further lengthen this post by including such analysis here - but see, e.g., papers on digital service taxes and the like by Wei Cui, by Bankman-Kane-Sykes, and by myself, among others.) Accordingly, I suppose one can't categorically say that it seems wisest for taxes on individuals' Metaverse income to be taxed exclusively on a residence basis, even subject to such caveats as the ascertainability of a given user's actual residence.

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