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Cross-border activities or transactions may trigger tax liability in two or more jurisdictions. In order to mitigate the financial burden resulting from these situations, states have entered into numerous double taxation conventions, which provide for rules that allocate the taxing rights between the contracting states. This book provides an introduction to the law of double taxation conventions. Although principally aimed at students, irrespective of their national background, the book will be of value to tax experts who wish to learn more about double taxation conventions, as well as international law experts who wish to gain a better understanding of tax law. The book does not consider one jurisdiction in particular, but rather takes examples from a wide range of different countries and their jurisdictions. It includes an overview of the problem of double taxation, the state practice in the conclusion of double tax conventions and their effects, the interpretation of double taxation conventions and treaty abuse. This revised edition takes into account new developments that have occurred since the previous edition of 2013, in particular the changes through OECD's BEPS Project and the Multilateral Instrument. It deals with the latest versions of the OECD Model Tax Conventions on Income and on Capital and the UN Model Double Taxation Convention between Developed and Developing Countries (both published in 2017), as well as the latest version of the OECD Model Double Taxation Convention on Estates and Inheritances and on Gifts.

The Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI) is the most forceful multilateral initiative to coordinate tax regimes on a worldwide basis since the dawn of modern income taxation over a century ago. This book evaluates two radically opposed viewpoints on the convention—a momentous and revolutionary paradigm shift versus a mechanism that merely continues an ongoing flow of limited policy coordination—with detailed investigations that bring to life the hopes and the realities of the current era of multilateral tax cooperation. Bringing together authors from national jurisdictions across the globe to scrutinize the MLI and its likely future ramifications, the book provides in-depth commentary and analysis in the following sequence: first, a comprehensive discussion of the design and goals of the MLI as a treaty and an institutional framework; second, an overview of the structure of the convention and its take-up across the globe to date; and third, the substantive implementation of the MLI with a wide range of country reports. Practice areas covered include tax law, international law, and international relations. The legal workings and implications of the MLI might still seem mysterious to those whose daily work is impacted by it, and there is as yet little jurisprudence regarding its legal nature or ultimate effect on the bilateral treaties coming within its scope. For these reasons, this pathbreaking book will be warmly welcomed by in-house counsel and law firms advising cross-border investors and firms; nongovernmental organizations involved in policy analysis and issue advocacy; researchers working on technical areas of international tax law; and lawyers interested in international policymaking, including the creation and diffusion of consensus-based fiscal and related regulatory norms across jurisdictions of differing development levels.

The Law of Double Taxation Conventions Cross-border activities or transactions may trigger tax liability in two or more jurisdictions. In order to mitigate the financial burden resulting from these situations, States have entered into numerous double taxation conventions, which provide for rules that allocate the taxing rights between the contracting states. This handbook aims at providing an introduction to the law of double taxation conventions. It is designed for students - irrespective of their national background, but the author believes that it will also be of great help for tax experts who wish to know more about double taxation conventions, as well as for international law experts who wish to understand more about tax law. The handbook does not consider one jurisdiction in particular but rather takes examples from a wide range of different countries and their jurisdictions. It includes an overview of the problem of double taxation, the state practice in the conclusion of double tax conventions and their effects, the interpretation of double taxation conventions and treaty abuse. Furthermore, this updated handbook takes new developments into account occurred since the last edition of the book from 2013, in particular also the changes through OECD´s BEPS project and the Multilateral Instrument. It deals with the latest versions of the OECD Model Tax Conventions on Income and on Capital and the UN Model Double Taxation Convention between Developed and Developing Countries, both published in 2017, as well as the latest version of the OECD Model Double Taxation Convention on Estates and Inheritances and on Gifts.

The work deals comprehensively with the significance of the OECD model commentary for the interpretation of double taxation agreements and processes literature as well as case law beginning with the work of the League of Nations through the first OECD model commentary from 1963 until today. While concluding that the advantage of the model commentary is non-binding soft law, its importance increases against the background of the BEPS initiative which is illustrated by the specific example of the beneficial owner. Finally, ways are explored to increase the importance of the model commentary, such as by including the definitions from the commentary in a so-called multilateral instrument.

This Festschrift celebrates the work of David Rosenbloom and marks the occasion of his 80th birthday. Throughout his illustrious career, David has developed many close friendships in practice, government and academia, and his creativity and dedication have contributed immeasurably to the field of international taxation. David has also shaped the success of others, particularly alumni of NYU's International Tax Program. Members of David's truly global network wrote the scholarly essays that make up this Festschrift. Their contributions engage David's large body of written work, his government service and his professional career, and they demonstrate his impact on the lives and careers of those fortunate enough to have worked and studied with him. The book reflects David's significant influence on international tax and his natural ability to draw people together from the world over and to cultivate their intellectual curiosity.

International Commercial Tax, 2nd edition takes account of the substantial developments of the last decade. With more than sixty percent new material, the book considers the outcomes of the OECD's BEPS project and the substantial consequential 2017 revisions of the OECD and UN Model tax treaties. With the continuing rise in the economic importance of non-OECD countries and the UK distancing itself from the EU, there has been a refocusing with less direct attention on UK domestic law and greater focus on the approaches of other significant countries, especially other common law jurisdictions. This provides greater flexibility as to how a particular point or issue is illustrated with practical examples. Greater attention is given to the UN Model, which is increasingly important. The book continues to compare the approach under model tax treaties with EU law and is updated with copious references and illustrations from the burgeoning jurisprudence of the EU Court.

Technological advancement and globalization have dramatically impacted the business models of multinational enterprises (MNEs). They have opened new markets, enhanced international collaboration and increased the relevance of intangibles in value chains. All of this has undeniably contributed to more economic growth and global prosperity. It has, however, also substantially complicated the world of international tax law, posing complex challenges in day-to-day fiscal practice and causing public concern about aggressive tax planning and potential tax avoidance by MNEs. Difficulties become especially apparent where companies belonging to the same multinational group collectively develop their most valuable (intangible) business assets or centralize the performance of critical group services. MNEs often structure such intragroup collaboration in legal agreements that foresee a joint ownership of results and that allocate the cost of the shared activities in proportion to each participant's anticipated benefits. These agreements are commonly referred to as cost contribution arrangements (CCAs) or cost sharing arrangements (CSAs). They are a pragmatic tool to allocate a significant part of the MNE's costs and income among the participating group companies. At the same time, and for the same reason, they are also frequently found to play a critical role in tax planning structures. This study sets out to investigate why CCAs are accepted as a legitimate transfer pricing instrument, and it analyses the most relevant rules and regulations governing their tax and transfer pricing treatment. It further outlines how effective those rules are at facilitating bona fide CCAs as well as countering the use of CCAs for tax avoidance purposes.

Current Tax Treaty Issues – 50th Anniversary of the International Tax Group comprises contributions focusing on international tax issues marking the 50th anniversary of a group of experts whose collective writings for decades have landmarked the international literature on tax treaties and international tax law in general. The book begins with a part on tax treaty policy and domestic law, including a review of the history of tax treaties and tax policy and international organizations in the tax treaty context. The domestic law aspects focus on a comparison of various features of tax litigation in the Netherlands and in the United Kingdom. It also includes an in-depth analysis of the “preservation principle” under which treaty provisions are prevented from being construed to restrict exclusions, exemptions, credit or other allowances granted by domestic law. Part 1 concludes with a review of the constitutional issues arising from the parliamentary process of approval of tax treaties. Part 2 deals with treaty interpretation and application with a focus on tax treaty application to states and their political subdivisions and local authorities. It also includes a chapter on “treaty access” dealing with policy and practical considerations on access to treaties by commercial entities with a focus on the principal purpose test and the limitation on benefits provision and the handling of characterization issues under treaties. A separate chapter reviews the use of memoranda of understanding for tax treaty interpretation and administration for tax treaty interpretation. Part 2 concludes with an analysis of the use of the OECD Commentaries in the context of BEPS and the MLI. Part 3 is devoted to taxing rules relating to the jurisdiction to tax, a commentary on the PE definition as revised by the 2017 Update to the Model Convention and the taxation of services income. It also analyses the treaty practice on article 21 of the OECD and UN Models. The definition of “beneficial ownership”, with the impact of the preamble to the 2017 Model Convention and the interpretation of the beneficial ownership limitation are also examined. Finally, a critique on the meaning of “beneficial ownership” before and after BEPS and whether the expression has become obsolete is presented. This book presents a unique and detailed insight into the most controversial issues which may be found in the tax treaty context. As such, it is an essential reference source for international tax students, practitioners and academics.

Capturing the core challenges faced by the international tax regime, this timely Research Handbook assesses the impacts of these challenges on a range of stakeholders, evaluating various paths to reform at a time when international tax policy is a topic high on politicians'agendas. Expert international contributors present an array of perspectives and approaches to research in the field, but all consider the necessity of fundamental reforms. The Research Handbook offers a reappraisal of the foundations and core concepts of the international tax regime, highlighting the need to adjust nineteenth and twentieth century solutions to the challenges of the twenty-first century. Chapters look at the challenges of embracing globalization, the interdependence of world economics, the ensuing impossibility of truly unilateral international tax policy, and the need to accommodate the expanding cast of players on the political map. With a variety of paths to reform suggested throughout, this Research Handbook will prove an invigorating read for law scholars working on taxation law as well as practitioners and policy makers seeking ways to improve, or navigate, the current state of affairs with international tax law.

This book covers all major topics in international tax law, ranging from permanent establishments and capital gains to the taxation of royalties and technical services, transfer pricing, and General Anti-Avoidance Legislation. It also highlights the Indian “story” of status vs. contract by examining four areas of controversy: permanent establishments, FTS (Fees for Technical Services) & Royalty, capital gains, and transfer pricing. The book approaches the subject of international taxation from two opposing yet related perspectives. One is the tax planning perspective, which involves contracts entered into by individuals and companies; the other is that of state regulation through increasingly complex legislation.The area of permanent establishments demonstrates the dominance of contracts over status, at least with respect to Indian tax law. However, some recent judicial decisions in this area demonstrate the susceptibility of contracts to status-related arguments. The areas of FTS & Royalty as well as those of capital gains and transfer pricing demonstrate the Indian government's attempts to establish, through legislation, the dominance of status over contracts.Whereas traditional textbooks on international tax law focus on the legal technicalities of tax legislation, this book provides tax scholars and lawyers with an understanding of tax planning and tax legislation side by side in each chapter, specifying the respective kind of actual or anticipated tax planning activity that in turn prompted a legislative response. As such, it offers readers a contextual and practical introduction to the complexities of international tax law, as well as an in-depth analysis of the latest debates and controversies in this area.

Tax treaty law and EU tax law in connection with hybrid entities Hybrid entities have traditionally been used as an avenue for international tax planning, and extending benefits under tax treaties to such entities has been a source of controversy for many years now. Although the OECD Partnership Report provided solid policy footing on this issue, there was still no common legal basis that countries could rely on for such positions. The increasing focus of countries towards the curbing of tax avoidance and abuse involving hybrid mismatch arrangements culminated in a specific action plan in the BEPS Project being dedicated to the design of domestic rules and the development of treaty provisions that would neutralize the tax effects of such arrangements. This volume provides an in-depth analysis of various aspects of this topic. It is divided into two parts - the first dealing exclusively with tax treaty issues arising in connection with hybrid entities and the second dealing with EU tax law issues surrounding hybrid entities. The former part comprises chapters analysing how tax treaties have historically dealt with this issue with a focus on domestic court jurisprudence, the positions in the OECD and the UN Model Conventions, the developments that have come about owing to the BEPS Project, and the impact of several existing measures, regimes, and vehicles on these tax treaty provisions. The latter part comprises chapters on how hybrid entities are dealt with under primary EU law, under various secondary law directives including the newly enacted Anti-Tax Avoidance Directives, and an analysis of policy solutions offered in this direction.

Wie soll das Steueraufkommen zwischen Industriestaaten und Entwicklungs- oder Schwellenstaaten abkommensrechtlich gerecht aufgeteilt werden? Die vorliegende Abhandlung entwickelt als Antwort darauf ein Prinzip, das sich von der Vorstellung löst, eine zwischenstaatliche Aufteilung des Steuersubstrats müsse sich primär nach dem individuellen Leistungsfähigkeitsprinzip richten. Es stellt vielmehr auf die Fähigkeit der Steuerbehörden ab, Steuern zu erheben. Dieses sog. Prinzip der staatlichen Leistungsfähigkeit wird am Beispiel Vietnams entwickelt. Das Land ist wegen seiner autoritären Staatsform sowie kolonialgeschichtlich entwickelten chinesisch-französisch geprägten Rechtskultur besonders dazu geeignet, das Prinzip herauszufordern. Die Anwendung des Prinzips wird dann an einem »DBA-Betriebsstätten-Dreieckssachverhalt« (Deutschland-Vietnam-Japan) simuliert. Ein Prüfungsschema wird abgeleitet. Implementiert wird es als Korrekturprinzip zum Prinzip der wirtschaftlichen Zugehörigkeit.

This book sheds light on the complexity of the environment in which the BEPS Project operates. It contrasts the commands of the modified nexus approach (BEPS Action 5) with those of EU law, WTO law and international investment agreements. Though it is clear that, as soft law, the Actions of the BEPS Project should remain within the limits established by hard law, the book identifies several instances in which this line has been crossed by the modified nexus approach. This conflict between hard and soft law frameworks is treated as analogous to the notion of fragmentation of international law and, against this backdrop, the book proposes that the notion of institutional dialogue could help build a pathway for a more productive relationship between these frameworks.

Elgar Advanced Introductions are stimulating and thoughtful introductions to major fields in the social sciences and law, expertly written by the world's leading scholars. Designed to be accessible yet rigorous, they offer concise and lucid surveys of the substantive and policy issues associated with discrete subject areas.This second edition of the Advanced Introduction to International Tax Law provides an updated and succinct, yet highly informative overview of the key issues surrounding taxation and international law from Reuven Avi-Yonah, a leading authority on international tax. This small but powerful book surveys the nuances of the varying taxation systems, offering expert insight into the scope, reach and nature of international tax regimes, as well as providing an excellent platform for understanding how the principles of jurisdiction apply to tax and the connected tools that are used by countries in imposing taxes. New to this edition:New material on the OECD Base Erosion and Profit Shifting (BEPS) projectCoverage of the EU's Anti Tax Avoidance PackageAnalysis of the US Tax Cuts and Jobs Act Key features include: defines and discusses the main types of jurisdiction to taxexplains in depth both inbound and outbound taxation on both passive and active incomedelineates the source of income that is crucial for taxing non-residents and foreign tax creditdiscussion of transfer pricing, a variant of source-based taxation that lies at the heart of modern efforts to tax corporations at sourceexplains how the above elements are influenced by tax treaties and looks at the future of the international tax regime.Composed of concise but insightful chapters, this revised second edition will prove to be a key resource for students of international tax law, as well as for scholars within the fields of tax law, international business law and international commercial law.

The 21st century is characterized by unprecedented economic and technological globalization. An increasingly free cross-border flow of goods, services, capital and workforces has led to a greater integration of economies across the world. These developments have also posed some challenges to national tax systems. A seemingly simple rule most countries have adopted and maintained for decades that residents ought to pay taxes on their worldwide income now has to prove its feasibility in the face of these new realities. There is an open question as to how to administer this residence-based tax regime in a world in which states'administrative capacities are highly restricted to their national borders while their residents increasingly trade, invest and provide services across borders. This book aims to introduce a new way of exploring an old but increasingly important topic in income taxation: the enforcement of taxes on the foreign-source income of resident individuals. Central to this discussion is the emerging “automatic exchange of information” (AEOI) system. The author explores the emerging AEOI Standard among governments as a potential mechanism to address the issues and attempts to provide much-needed historical research, conceptual clarification and theoretical support of AEOI. The author also analyses the need for a fair international legal framework for AEOI and discusses he particularities and challenges associated with establishing such a framework.

In recent times, countries have increasingly shifted their focus towards the curbing of tax avoidance and abuse. Accordingly, the G20 countries commissioned the OECD to undertake the BEPS Project, following which the OECD released its Final Reports on 15 distinct Actions in 2015. Further, the OECD also released the Multilateral Instrument, a multilateral tax treaty through which the application of thousands of bilateral tax treaties may be modified as regards the tax treaty-related proposals stemming from the BEPS Project. Presently, while several countries have already implemented large portions of these proposals, others have only implemented them to a limited extent. This may be due to several reasons, such as lack of relevance or administrative capacity, or differing policy priorities. However, as the Inclusive Framework is in the process of peer reviewing the compliance of each member with the minimum standards, more and more countries are implementing at least these minimum standards. Significantly, the BEPS Project has also given rise to new multilateral measures such as the EU Anti-Tax Avoidance Directive, which has led to a minimum level of harmonization in the European Union regarding some of the BEPS measures. This book explores the various ways in which countries have implemented the key proposals emerging from the BEPS Project. Through contributions made by national reporters from 36 different countries – including developed, developing and emerging economies – the book constitutes an expert guide to the varied perspectives towards the BEPS Project across the globe. While discussing the implementation of the BEPS Project, this study provides an in-depth analysis of the obstacles faced by countries in the implementation phase of the BEPS Project, as well as the interaction of such measures with various domestic legal systems. This book is part of the WU Institute for Austrian and International Tax Law – Tax Law and Policy Series.

The main purpose of this book is to review the most fundamental design principles used in international tax policy and some of the most important rules of the current international tax regime. The benchmark for such review is justice as understood in recent theory of political philosophy. The book is structured into three main parts. The first part outlines the international law framework in which the international tax regime operates. It looks at the different sources of international law, such as treaties, customary law, general principles of international law and soft law, in order to demonstrate how these sources are (or are not) influenced by moral theory in general and by the notion of justice in particular. This part aims at demonstrating that the international law framework does not provide for detailed guidance on how to improve the international tax regime. This represents an important contrast with domestic tax systems in which a constitution sets certain orientation lines for the legislator. Based on an in-depth understanding of the international law framework, the second part looks at the recent debate concerning justice in political philosophy. It refers to the existing theories of global justice in order to analyse whether these theories contain elements that can be used to improve the international tax regime. The author concludes this part with his own position on a theory of global justice. The third part reviews some of the most important principles and rules of the international tax regime in respect of their normative validity. That is, the author reviews whether a given principle or rule indeed helps to design a just international tax regime – or whether its application could even lead to injustice. Such analysis is based on the results developed in the second part of the book. The author reviews the following principles: inter-nation equity, ability to pay, efficiency, and the source and benefit principles. In addition, the author discusses the following rules: the arm's length principle, anti-abuse provisions, mandatory arbitration, fiscal transparency and CFC rules.

Este libro tiene como objetivo analizar la aplicación del artículo 7 del Instrumento Multilateral de la OCDE, recientemente suscrito por Colombia. En particular, se pretende estudiar la aplicación y el alcance del test de propósito principal en los términos planteados por el artículo 7(1) de la convención, el cual es una regla antiabuso general cuya textura abierta puede traducirse en una dosis de incertidumbre para el contribuyente. Se busca analizar la aplicación de la cláusula simplificada de limitación de beneficios planteada en el artículo 7(8) al 7(13) de este instrumento, y, además, realizar algunas consideraciones sobre las implicaciones de los cambios en los preámbulos de los convenios suscritos por Colombia para evitar la doble imposición. Así, el objetivo de Abuso en el instrumento multilateral busca ofrecer un marco conceptual que permita llegar a interpretaciones razonables y —en la mayor medida posible— objetivas, para que los contribuyentes puedan tener certeza de qué estructuras caen en el ámbito de aplicación del artículo 7 y para que las administraciones tributarias puedan fiscalizar con criterios rigurosos.

The problem dealt with in this book stems from the rule that interest is deductible (and dividends are not) in calculating taxable income, unless the interest is caught by thin capitalization or anti-abuse rules. Recently, new analysis has shown that multinational groups can plan their worldwide leverage to minimize their overall tax liability, highlighting the risk of base erosion. This has led some countries and international institutions to introduce or recommend the introduction of new, stricter thin capitalization rules, commonly referred to in this book as “Comprehensive Interest Barriers”. This book, after examining the evolution of the tax treatment of interest and thin capitalization rules, carries out a comparative study of some of the domestic regimes that have adopted this new trend of rules, as well as of the OECD recommended approach under BEPS Action 4 and the interest limitation rule adopted under the Anti-Tax Avoidance Directive. On the basis of the examination of these Comprehensive Interest Barriers, this book concludes that these new rules are not in line with basic international tax principles, namely the net income and ability-to-pay principles, the benefit principle and the arm's length principle. In addition, these new rules create economic double taxation of interest and realign the taxing rights regarding the taxation of cross-border interest from the country of residence of the creditor to the source country. On the basis of these conclusions, this book investigates how to implement a single international standard regarding the adequate (i.e. arm's length) capital structure of an entity by proposing the harmonization of the different capitalization requirements applicable to permanent establishments and subsidiaries (the New Capitalization Standard). By implementing the proposed New Capitalization Standard, an international consensus regarding the amount of capital that should generally be attributed to an entity, as well as the manner in which the said total amount of capital should be split between debt and equity capital, would be crafted, and therefore, a solution to the problem of economic double taxation would also be indirectly achieved. This book also addresses the issue of economic double taxation related to any adjustments to the capital structure.