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1
Vasović, Miloš. "Beneficial ownership of income as an antiabusive measure in Serbian Tax Law." Zbornik radova Pravnog fakulteta Nis 59, no. 88 (2020): 217–32. http://dx.doi.org/10.5937/zrpfn0-27818.
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The Serbian Corporate Income Tax Act contains a provision on the beneficial ownership of income (hereinafter: the BO provision), which is one of the conditions for the application of the preferential tax rate on income tax after tax deduction, which is envisaged in Treaties for the avoidance of Double Taxation on income and capital (hereinafter: Double Taxation Treaties/ DTTs). The subject matter of research in this paper is the term "beneficial ownership", which is not defined in the Corportate Income Tax Act. It may ultimately lead to abusing the preferential tax rates from the DTTs in tax planning and "treaty shopping" through the use of conduit companies. Tax experts have different opinions on the legal nature of the BO provision, which is given the function of an anti-abusive measure (on the one hand) and a rule for the attribution of income (on the other hand). The author analyzes the current function of the BO provision envisaged in the Serbian Serbian Corporate Income Tax Act (CITA), and its inadequate application. The author advocates for enacting the BO provision as an anti-abusive measure, and examines the possible application of the BO provision in domestic tax law, with reference to Articles 10, 11, and 12 of the DTTs that Serbia contracted with other states, as well as Articles 10-12 of the OECD Model-Convention on Income and Capital (2017) and Commentaries on these articles. Such an application of the BO provision may preclude "treaty shopping". In final remarks, the author points out why the BO provision should be envisaged as an anti-abusive measure in Serbian tax law.
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Khavanova, I. A. "Reservations and declarations to tax treaties." Law Enforcement Review 5, no. 2 (2021): 99–108. http://dx.doi.org/10.52468/2542-1514.2021.5(2).99-108.
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The subject of the article. The article represents a research of conceptual properties and issues of applying reservations and declarations to the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting, developed in frames of implementing the OECD/G20 Action Plan on Base Erosion and Profit Shifting (BEPS). The Multilateral Tax Convention modifies the application of agreements for avoiding double taxation, that are covered by its action. Since January 1, 2021 it has been applied to 34 agreements for avoiding double taxation between the Russian Federation and such countries as the UK, Canada, Latvia, Malta, the Netherlands and France. The Multilateral Tax Convention provides for updating bilateral tax treaties – whether they were developed upon the OECD Model Tax Convention or the UN Model Tax convention. The Convention retains a great degree of flexibility in relation to the implementation of its provisions – especially by the means of reservations, made by the countries.The purpose of the article is to identify the main characteristics of applying reservations and declarations in international tax law.The methodology.The study is based on empirical methods of comparison and description, theoretical methods of formal and dialectical logic.The main results. Reservations have played a minor role in international taxation until now – usually they reflected disagreement, expressed by an OECD member country with the provisions of the OECD Model Tax Convention or its Official commentary. Reservations were formulated in relation to a non-binding (model) document and their importance was limited. Such reservations cannot be associated with declarations, made in relation to legally binding documents like the Multilateral Tax Convention. Analyzing the general points of scientific dispute upon the mentioned range of issues, the author argues with researchers who deem that the structure of reservations to the Multilateral Tax Convention doesn’t correspond with the provisions over reservations in the Vienna Convention on the Law of Treaties, 1969 and thus recognize those reservations as “legal hybrids”.Conclusions. The structure of reservations to the International Tax Convention is deter-mined by the nature of double taxation agreements. The model lawmaking principle (the use of the OECD Model Tax Convention) allowed developing “umbrella” architecture of relationships between the provisions of the Multilateral Tax Convention and the norms of double taxation agreements. The article categorizes types of reservations as reservations of general nature and treaty-specific reservations. The article also considers the specific properties of reservations made in relation to the provisions of the Convention, which com-pose a minimal standard.
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Steenkamp, Lee-Ann. "An analysis of the applicability of the OECD Model Tax Convention to non-OECD member countries: The South African case." Journal of Economic and Financial Sciences 10, no. 1 (2017): 83–93. http://dx.doi.org/10.4102/jef.v10i1.6.
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Most tax treaties (including South Africa's) are based on the OECD Model Tax Convention on Income and Capital and the related Commentary (the 'OECD Model'). Notwithstanding the uncertainty surrounding its legal status, the courts in many countries use the OECD Model in the interpretation of their tax treaties. The OECD launched an action plan on Base Erosion and Profit Shifting ('BEPS') in 2013, which is aimed at improving international tax cooperation between governments. In South Africa, the importance of combating BEPS is highlighted by the fact that the Davis Tax Committee has appointed a sub-committee specifically to address concerns pertaining to BEPS. South Africa's participation in the BEPS project and its tax treaty negotiations with other countries, especially OECD member states, are of the utmost importance to South Africa's National Treasury. Consequently, it is the primary objective of this article to analyse the applicability of the OECD Model to non-OECD member countries, with particular emphasis on South Africa. It will be argued that, if the treaties of non-member countries are in conformity with the OECD Model and no specific position has been taken, the non-members also accept the provisions of the Model and the Commentary as an interpretative aid.
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Selezen, P. O. "NORMATIVE REGULATION OF BASIC PERMANENT ESTABLISHMENT IN TAX LEGISLATION OF UKRAINE." Legal horizons, no. 17 (2019): 89–92. http://dx.doi.org/10.21272/legalhorizons.2019.i17.p:89.
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The basic permanent establishment has been used in the texts of bilateral double taxation treaties since the conclusion of the first ones in the second half of the XIX century. The article is aimed at the characterization of normative regulation of basic permanent establishment in the tax legislation of Ukraine in comparison with their conformity to the provisions of the OECD Model Tax Convention and its Commentaries. Reference to the OECD Model Tax Convention and its Commentaries as a basis for comparison is determined by the fact that it is a recognized and widely used source of interpretation of the provisions of double taxation treaties including the treaties concluded by Ukraine. The comparison of the provisions of the Tax Code of Ukraine and the OECD Model Tax Convention points out the existence of inconsistencies that might have a negative influence on the efficiency of the concept of a permanent establishment in Ukraine and good faith realization of conventional norms on tax matters in Ukraine. There are a few proposals of changes that might help to avoid the undesirable consequences of the abovementioned differences: 1) to replace the words “permanent place of activity” on “fixed place of activity” (Art. 14(1)(143) of the Tax Code of Ukraine); 2) to add the words “but not limited to” after the word “include” at the second part of Art. 14(1)(193) of the Tax Code of Ukraine; 3) to add the words “notwithstanding the provisions of the provisions of the first part of this Article” after the words “except to services of secondment of employees” and “civil rights and duties” at the second part of Art. 14(1)(193) of Tax Code of Ukraine; 4) to provide the mechanism of realization of provisions of Art. 10 of the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS concluded in November 2016. Keywords: permanent establishment; OECD Model Tax Convention; tax legislation; double taxation treaties; interpretation.
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Леонова, Ольга, and Olga Leonova. "VALUE OF PROJECT BEPS AND EU LAW: LIMITATION OF THE USE OF TAX TREATY BENEFITS." Journal of Foreign Legislation and Comparative Law 2, no. 1 (2016): 0. http://dx.doi.org/10.12737/18188.
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This article is devoted to legal relations arising from application of international tax treaties. The subject matter of this article is the norms of international and European Law and also soft law designed for preventing treaty abuse. The author considers Article 22 of the Model US Tax Convention. According to the current recommendations of OECD in the framework of BEPS Project regarding preventing the granting of treaty benefits in inappropriate circumstances, this provision should be considered as legal base for including in the Model OECD Tax Convention. The author focuses on the issue whether the provision regarding limitation of treaty benefits is consistent with EU law and the established practice of the European Court of Justice. The methodological foundation of this article includes general and specific approaches of scientific knowledge. During preparation of this article the author used methods of legal, structural, comparative and linguistic analysis. Moreover, the author applied the technical method for analysis of texts and wordings of model international conventions and international tax treaties. The author analyzed the provision of the Model US Convention regarding limitation of treaty benefits, because it is expected to be included in all international treaties, including in treaties of EU member states in the framework of BEPS Project, elaborated by the OECD.
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Kangave, Jalia. "The Dominant Voices in Double Taxation Agreements: A Critical Analysis of the “Dividend” Article in the Agreement between Uganda and the Netherlands." International Community Law Review 11, no. 4 (2009): 387–407. http://dx.doi.org/10.1163/187197409x12525781476123.
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AbstractIn a bid to attract foreign investment, Third World countries are increasingly concluding Double Taxation Treaties with capital-rich countries, based on either the UN model treaty convention or the OECD model. Using the example of the dividend Article in the Uganda-Netherlands treaty, the discussion in this article illustrates the increased use of tax treaties to shift income from developing to developed countries. By essentially reducing the tax rate on dividend income to nil, that treaty significantly erodes Uganda's tax base. Such agreements raise concern, especially when one takes into account the fact that investment decisions are often driven by factors external to tax, meaning that reduced tax rates do not guarantee increased investments. Worse still, because developing countries are net capital importers, the benefits accruing from such treaties are often one-sided. The paper calls for a rethinking and redrafting of the UN model convention to ensure that the taxing rights of Third World countries are strengthened. In addition, since the practical reality is that developed countries often base their agreements (even with developing countries) on the OECD model, there is a need to amend the latter model to take this reality into account.
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Hagemann, Tobias. "Attribution of Profits Derived Before or After the Existence of a Permanent Establishment under Tax Treaty Law." Journal of Management and Financial Sciences, no. 29 (July 29, 2019): 195–215. http://dx.doi.org/10.33119/jmfs.2017.29.10.
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The attribution of profits to Permanent Establishments (PE) is one of the most discussed topics in international tax literature, the reason being that the attribution determines the amount of taxation in a PE state. Particular problems arise if such profits are derived before or after the existence of a PE. The article discusses the attribution of such profits under tax treaty law provided for by the OECD Model Tax Convention. In doing so, it is found that profits derived before or after the existence of a PE should be attributed to the PE because not only the wording but also the context and purpose of the OECD Model support this view. In further analysis, however, it is shown that slight changes in the attribution may be expected under the new “Authorized OECD Approach”.
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Cho,Myung-Yeon. "The Trend of Amendment OECD Model Tax Convention Commentary―for 2007 revision draft―." Seoul Tax Law Review 13, no. 3 (2007): 266–303. http://dx.doi.org/10.16974/stlr.2007.13.3.009.
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Steenkamp, Lee-Ann. "The Permanent Establishment Concept In Double Tax Agreements Between Developed And Developing Countries: Canada/South Africa As A Case In Point." International Business & Economics Research Journal (IBER) 13, no. 3 (2014): 539. http://dx.doi.org/10.19030/iber.v13i3.8591.
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In this era of globalisation, developing countries have resorted to double tax agreements in order to attract foreign direct investment. The extent to which a countrys tax treaty policy favours developing countries or not depends upon the extent to which the country is prepared to adopt provisions from the UN model tax convention as opposed to the OECD model. Developing countries in particular should carefully consider the design of their tax treaties so as to effectively combat tax avoidance, without sacrificing foreign direct investment. To this end, the Canada/South Africa tax treaty is compared and contrasted with these two models. The concept of permanent establishment is reviewed in this context. It was found that the Canada/South Africa tax treaty is overwhelmingly based on the OECD model. This could indicate that South Africa has a deliberate tax treaty policy of ceding taxing rights to other countries. Thus, developing countries are seemingly unable or unwilling to make use of the UN model so as to retain greater source taxation. A number of recommendations are made to broaden the scope for the source taxation of business income in the developing country.
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Steenkamp, Lee-Ann. "Beneficial Ownership Provisions In Tax Treaties Between Developed And Developing Countries: The Canada/South Africa Example." International Business & Economics Research Journal (IBER) 12, no. 9 (2013): 1107. http://dx.doi.org/10.19030/iber.v12i9.8056.
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In the years since the Organisation for Economic Cooperation and Development (OECD) adopted its first draft tax treaty in 1963, the world has experienced an astonishing surge in international trade and investment. The tax treatment of these cross-border transactions is affected by double tax agreements. As tax treaty networks will likely continue to expand, concerns about tax treaty abuse might be expected to grow. The extent to which a countrys tax treaty policy favours developing countries - or not - depends upon the extent to which the country is prepared to adopt provisions from the UN model tax convention as opposed to the OECD model. Developing countries, in particular, should carefully consider the design of their tax treaties so as to effectively combat tax avoidance without sacrificing foreign direct investment. To this end, the Canada/South Africa tax treaty is compared and contrasted with these two models. The concept of beneficial ownership is reviewed in this context. It is contended that a general definition in South Africa's Income Tax Act of 'beneficial ownership' would assist in the interpretation of the term for the purposes of South Africa's tax treaties. It is submitted that the scope for the source taxation of passive investment income (viz. dividends, interest and royalties) in the developing country could be magnified through treaty negotiations.
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Dumiter, Florin, Ștefania Amalia Jimon, and Florin Gheorghe Bene. "Avoiding Double Taxation Through The Assessment of International Tax Treties. Case: ESP’s versus Anaf Braşov." Journal of Legal Studies 23, no. 37 (2019): 1–15. http://dx.doi.org/10.2478/jles-2019-0001.
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Abstract International double taxation represents one of the main problems’ for which taxpayers have to deal within a world fulfilled with globalization, uncertainty, risk, asymmetrical information and moral hazard. In this sense, in this article it is provided a qualitative overview regarding the appearance and evolution of the main double taxation conventions and their legal framework. In this article it is tackled some important issues, namely: the rationale behind the construction and engaging in double taxation conventions; the need for a coherent and just application of those conventions; the historical appearance and evolution of the double taxation conventions, as well as the quid pro quo OECD Model Convention and UN Model Convention. The conclusions of this article highlight the importance and ultimately need for construction of best practices new and complex multilateral tax convention at the UE level in order to diminish the contagious effects of the treaty shopping practices. The case study presented in this article from the Romanian jurisprudence highlights the multi-faced concept of double taxation and the comprehension approach which must be undertaken in order to solve the complex issues of the international taxation via double taxation treaties.
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Sari, Nuraini, and Ririn Susanti Hunar. "Analysis Method of Transfer Pricing Used by Multinational Companies Related to Tax Avoidance and its Consistencies to the Arm's Length Principle." Binus Business Review 6, no. 3 (2015): 341. http://dx.doi.org/10.21512/bbr.v6i3.944.
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The purpose of this study is to evaluate about how Starbucks Corporation uses transfer pricing to minimize the tax bill. In addition, the study also will evaluate how Indonesia’s domestic rules can overcome the case if Starbucks UK case happens in Indonesia. There are three steps conducted in this study. First, using information provided by UK Her Majesty's Revenue and Customs (HMRC) and other related articles, find methods used by Starbucks UK to minimize the tax bill. Second, find Organisation for Economic Co-Operation and Development (OECD) viewpoint regarding Starbucks Corporation cases. Third, analyze how Indonesia’s transfer pricing rules will work if Starbucks UK’s cases happened in Indonesia. The results showed that there were three inter-company transactions that helped Starbucks UK to minimize the tax bill, such as coffee costs, royalty on intangible property, and interest on inter-company loans. Through a study of OECD’s BEPS action plans, it is recommended to improve the OECD Model Tax Convention including Indonesia’s domestic tax rules in order to produce a fair and transparent judgment on transfer pricing. This study concluded that by using current tax rules, although UK HMRC has been disadvantaged because transfer pricing practices done by most of multinational companies, UK HMRC still cannot prove the transfer pricing practices are not consistent with arm’s length principle. Therefore, current international tax rules need to be improved.
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Bosankić, Dragan. "Tax and legal treatment of hybrid financial instruments." Anali Pravnog fakulteta u Beogradu, no. 2/2018 (July 14, 2018): 244–61. http://dx.doi.org/10.51204/anali_pfub_18210a.
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Besides the motives not prevailingly concerning the tax, hybrid financial instruments are used both in the context of one tax system, and particularly in the international scenario, aiming at tax savings generation. Depending on whether the participants in the transaction are taxpayers within the same tax system, or not, the paper analyses the tax and legal consequences of the classification of hybrid financial instruments. Special attention has been paid to the tax and legal treatment of hybrid financial instruments in the Serbian taxation legislation, in which, for taxation purposes, there is no possibility of different classification in relation to the way it has been done in terms of company law and accounting. This drawback in Serbian taxation legislative on the one hand opens the possibility for tax planning by using hybrid financial instruments, while on the other hand it is an area that should be specifically regulated. In addition, in terms of the international scenario, using a comparative method, the paper analyses the rules for the classification of hybrid financial instruments defined by OECD-Model convention and the relevant EU directives.
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Steenkamp, Lee-Ann. "The use of the OECD Model Tax Convention as an inrpretative aid: The static vs ambulatory approach debate considered from a South African perspective." Journal of Economic and Financial Sciences 10, no. 2 (2017): 195–205. http://dx.doi.org/10.4102/jef.v10i2.13.
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Popović, Dejan, and Gordana Ilić-Popov. "Arbitration in international tax law: legal obstacles to agreeing." Anali Pravnog fakulteta u Beogradu, no. 2/2018 (July 14, 2018): 47–69. http://dx.doi.org/10.51204/anali_pfub_18202a.
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Article 25 (5) of the OECD Model Convention contains a provision that defines the failure of the mutual agreement procedure to solve a dispute whether a person has been taxed in a manner that is not in accordance with the provisions of the Convention within two years as a deferred condition for activating the arbitration clause. The parties in arbitration are the Contracting States rather than the taxpayer who initiated it. Despite the advantages of the arbitration dispute resolution, numerous developing countries do not accept the arbitration clause stating that it would violate their fiscal sovereignty from two reasons. Firstly, the authors point out that relying on the „baseball arbitration“ would diminish the relevance of the objection that arbitration jeopardises administrative independence. Secondly, the objection that the state cannot renounce its right to tax is also untenable since it overlooks the difference between the state’s sovereign inalienable right to introduce tax and its right to collect a disputed amount. Neither remaining two constitutional-law arguments are valid. From the point of view of the rule of law principle, there is no justification to confine arbitration only to the issues concerning the interpretation of facts. From the point of view of the principle of equality, the constitutional courts will not require symmetrical access to arbitration in domestic tax disputes since they tend to interpret this principle in the manner that it applies to the persons in the same or similar legal situations – namely, to those who meet the requirements for arbitration stipulated in a tax treaty. The authors conclude that Serbia should reassess its negative attitude on tax arbitration, which will make it easier for her to deal with the obligation emerging in the accession negotiations to adopt the EU Arbitration Convention as a part of the acquis.
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LOVINSKA, Ljudmyla, Yana OLIYNYK, and Maria KUCHERIAVA. "Implementation of international recommendations for application of a three-tiered approach to transfer pricing documentation in Ukraine." Fìnansi Ukraïni 2020, no. 9 (2020): 95–109. http://dx.doi.org/10.33763/finukr2020.09.095.
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The article considers challenges and consequences of introducing a three-level model of transfer pricing documentation in Ukraine. The purpose of study is to assess the state of regulatory support for implementation of Step 13 of the BEPS Action Plan and to identify institutional measures for further implementation of three-tiered documentation on transfer pricing, taking into account the requirements of the Organization for Economic Co-operation and Development (OECD). The authors analyzed the state of accession of countries all over the world to the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting, in order to counteract the erosion of the tax base and the withdrawal of profits from taxation of the OECD, ratified by the Law of Ukraine dated 28.02.2019 No 2692-VIII. Analysis of national legislation to take into account the requirements of the BEPS Action Plan and the experience of cooperation of the Government of Ukraine with international tax organizations allowed to scientifically substantiate the directions of improvement of national regulations on tax issues and to determine methodology for application of innovative reporting form in the context of further implementation of BEPS Action Plan. It is identified that implementation of a three-tiered reporting model for transfer pricing in Ukraine is at the beginning of the development, in particular legislation. The authors emphasize the importance of counteracting information asymmetry by ensuring the unification of terminology and quality of the database for innovative reporting preparation, in particular, for global documentation on transfer pricing, transfer pricing documentation and Country-by-Country reporting of multinational entities. Within the study it was proved that the organization of the reporting process at all levels of the Three-Level Model of transfer pricing documentation (hereinafter the Three-Level Model) should be aimed at preparing reports that contain reliable information with the maximum exclusion of duplication.
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Black, Celeste M. "Taxation of Cross-Border Transfers of Carbon Emission Allowances under Linked Emissions Trading Schemes." Transnational Environmental Law 6, no. 2 (2017): 335–61. http://dx.doi.org/10.1017/s2047102516000352.
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AbstractEconomic arguments in support of linking emissions trading schemes suggest that such linking could provide access to lower cost abatement options and increase market stability. The decisions of whether and how to link emissions trading schemes often focus on the design features of the relevant schemes, but an additional factor which has the potential to undermine the efficiency of linked schemes is taxation. This article systematically tests two alternative approaches to the direct (income) taxation of cross-border transfers of emission allowances for differential tax outcomes. Four hypothetical transactions are considered under three different linking mechanisms and on the assumption that a tax treaty based on the OECD Model Tax Convention on Income and on Capital is in force. This analysis evidences that, in some cases – and especially if the relevant jurisdictions adopt different approaches to the taxation of allowance transactions under domestic law – there is the potential for timing differences or double taxation that could impact on the efficiency of the linked trading schemes. It is therefore important for tax implications to be considered as part of any linking proposal.
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Zhuravel, M. V. "Analysis of the ways in which a permanent establishment may arise under article 5 of the OECD model tax convention and comparisons with the equivalent provision in the un model convention." Юридична Україна, no. 9 (189) (2018): 35–41.
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EREMIN, Sergey, Konstantin LUKICHEV, Sergey KAMOLOV, Elena MIGACHEVA, and Tatiana VERSHILO. "Systematization and Classification of ‘Soft Law’ Sources in the Financial Law of Russia." Journal of Advanced Research in Law and Economics 9, no. 3 (2020): 810. http://dx.doi.org/10.14505/jarle.v11.3(49).14.
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The aim of this work is to develop a classification of soft law sources in the financial law of the Russian Federation and their systematization. The study revealed the fact that Russian fiscal authorities and courts have increasingly turned to the documents of the Organization for Economic Co-operation and Development (OECD) especially in connection with the taxation issues. The study discloses an important soft-law feature – to transform to the financial law and become legally binding. It was adjusted that there are a large number of soft law legislative acts, regarding transfer pricing and double taxation avoiding have been passed by international organizations and bodies nowadays. These acts are being used a lot in the Russian financial law. The study investigates the most important soft law act – OECD Model Tax Convention and its comments - issued by the Organization for Economic Co-operation and Development (OECD). According to the result of the study, the classification of soft-law acts was carried out. The classification is based on the following criteria: functions, goals, scope (influence), bill passing authorities, types of adopted acts, bill scope. The developed classification and systematization ensure a more efficient and uniform application of the soft law sources in practice. At work there were used general and specific scientific research methods: method of interpretation of the rules of laws, system-structural and formal-legal methods, logical method.
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Du Plessis, Izelle. "Double Taxation Treaty Interpretation: Lessons from a Case Down Under." Potchefstroom Electronic Law Journal 23 (December 8, 2020): 1–22. http://dx.doi.org/10.17159/1727-3781/2020/v23i0a6840.
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In the Australian case of Bywater Investments Ltd v Commissioner of Taxation; Hua Wang Bank Berhad v Commissioner of Taxation (the Bywater case) the Australian High Court dealt with the question of whether certain companies were resident in Australia for income tax purposes. The majority answered this question by applying Australian domestic law. In a separate but concurring judgement, Gordon J also discussed the interpretation and application of the relevant double taxation treaty. This contribution analyses Gordon J's judgment to extract guidance from it for the South African courts on their interpretation of double taxation treaties.
 It is submitted that South African courts should also follow the "first step" proposed by Gordon J when interpreting double taxation treaties. South African courts may find Gordon J's judgment "instructive" when dealing with the interpretation of the "place of effective management" concept in both domestic law and double taxation treaties. In his judgment Gordon J favours the goal of common interpretation and it is argued that South African courts should follow this example and explicitly support this notion in applicable cases. From Gordon J's judgment and the judgement in Krok v Commissioner, South African Revenue Service, it is deduced that the positions in South Africa and Australia are similar in that the courts in both countries will be bound by the principles of Articles 31 and 32 of the Vienna Convention on the Law of Treaties when interpreting double taxation treaties. Moreover, Gordon J's judgment indicates that the domestic principles of interpretation should not be used in the interpretation of double taxation treaties. Recent South African cases have suggested that there are no differences between the South African domestic principles of interpretation and those contained in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. This contribution submits that there are many similarities between the two, but that the rules are not exactly the same. South African courts should be aware of these differences and rather apply the rules of public international law, including those contained in the Vienna Convention on the Law of Treaties, when they interpret double taxation treaties. Gordon J specifically identifies the category of the Vienna Convention on the Law of Treaties in which he places the Commentary on the OECD Model Tax Convention, to rely on it for his interpretation of the relevant double taxation treaty. South African courts may well learn from this approach, to create more certainty in the process of interpreting a double taxation treaty.
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Tiley, John. "Double Taxation Agreements and International Tax Law. (A Manual on the OECD Model Double Taxation Convention 1977.) By Philip Baker. [London: Sweet & Maxwell. 1991. xxxvi, 363, (Appendix) 21 and (Index) 14pp. Hardback £60·00 net.]." Cambridge Law Journal 51, no. 1 (1992): 184–86. http://dx.doi.org/10.1017/s0008197300016974.
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Maryna, GLUKH, SERDIUK Viktoriia, SELEZEN Pavlo, and BABENKO Anton. "The OECD Model Tax Convention and its commentaries as a source of interpretation of double taxation treaties in Ukraine." Juridical Tribune 2, no. 11 (2021). http://dx.doi.org/10.24818/tbj/2021/11/2.08.
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Interpretation of double taxation treaties is of utmost importance for application of their norms according to the criteria of good faith in compliance with the provisions of the Vienna Convention on the Law of Treaties. At the same time, there is no consensus in understanding the role of the OECD MC and its Commentaries as means of interpretation of double taxation treaties. As it is demonstrated on the basis of the development of court practice in Ukraine, the present situation does not add certainty to implementation of double taxation treaties and might even have the negative effect on investment climate in a state of source of income. The article does also contain the ways of improvement of application of the OECD MC and its Commentaries during the implementation of double taxation treaties of Ukraine including (1)preparation of the letter on issue of application of the OECD MC and its Commentaries as a source of interpretation of double taxation treaties by the Supreme Court of Ukraine, (2) granting of the technical assistance to tax authorities of Ukrainein the area of application of double taxation treaties in accordance with the international standards such as the OECD MC and its Commentaries and (3) translation of the OECD MC and its Commentaries into Ukrainian language.
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Djigsa, Wakgari Kebeta. "Taxation of Income from Employment: A Comparative Study of the OECD Model Convention, the UN Model Convention, the Ethio-China Tax Treaty and the Ethio-UK Tax Treaty." SSRN Electronic Journal, 2016. http://dx.doi.org/10.2139/ssrn.2809489.
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Yoon, Seungyoung. "Comparative Study on Anti-Treaty Shopping – Focused on Beneficial Ownership Theory." Asian Journal of Law and Economics 7, no. 2 (2016). http://dx.doi.org/10.1515/ajle-2015-0023.
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AbstractThis article provides an overview of the concept of the traditional qusai-definitions of treaty shopping in an attempt to delineate the outline of such practices. This article also consider the current trends in treaty shopping and the anti-treaty shopping policies in the context of tax treaties, OECD Model Convention, US tax policy and domestic legislation, and its interaction with other domestic anti-abuse rules and judicial doctrines, focusing on recent cases on beneficial ownership. Lastly, this article examines the possible implications of Korean Law on the treaty shopping debate. From a global perspective, specific guidance is needed to harmonize how jurisdictions apply the concept of “beneficial owner” to holding companies. Since the tax authorities throughout the world often refer to OECD Commentary when interpreting Double Tax Conventions, it is critical that the concept of “beneficial owner” be clear and concise so as to avoid confusion and misinterpretation. It should be also noted that the verification of beneficial ownership requirement should be made on a factual basis, to avoid treaty shopping and treaty abuse as it is difficult to establish a general rule.
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Sanghavi, Dhruv. "The Interaction of Articles 6, 7 and 21 of the 2014 OECD Model Tax Convention: A Historical Analysis." SSRN Electronic Journal, 2016. http://dx.doi.org/10.2139/ssrn.2840204.
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"An Analysis of the Taxation of Entertainers and Sportspersons Under Art. 17 OECD-MC." Economic Alternatives, no. 2 (June 29, 2020): 342–49. http://dx.doi.org/10.37075/ea.2020.2.10.
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The double tax treaties (DTT) are an important regulator in international tax law. The Preamble to them defines their aim and purpose – to reduce taxation through tax evasion and avoidance in the field of taxes on income and capital. It should be noted that they do not create new taxes, but they are supranational international agreements ensuring the fair tax treatment between states. According to the Art. 5, para 4 of the Constitution of the Republic of Bulgaria, the international agreements such as the DTTs are part of the domestic law if they have been ratified, promulgated and entered into force. After the fulfilment of the three cumulative conditions, they take precedence over the domestic legislation for any conflicts. The aim of the current study, with no claim to completeness and comprehensiveness, is to outline the scope of Art. 17 of the Model Tax Convention of Income and Capital of the Organisation for Economic Co-operation and Development (OECD-MC) on the taxation of entertainers and sportspersons. The analysis will begin with a brief historical review. For this purpose, the last three versions of the Commentary of the OECD-MC (the Commentary) will be examined. The author will also focus on relevant international and domestic practical issues on the topic as well as a brief overview of the concluded DTTs between Bulgaria and other states. Finally, some thoughts will be expressed on the future development of the concept.
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Djambov, Filip, Martijn Veltrop, and Li Shao Wu. "Tax Seminar I on Relevant Issues Related to the Permanent Establishment in the Light of the OECD Model Tax Convention on Income and Capital." MaRBLe 1 (December 15, 2016). http://dx.doi.org/10.26481/marble.2014.v1.353.
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Jansen van Rensburg, Enelia. "The Interaction between Section 233 of the South African Constitution and the Commentaries to the OECD Model Tax Convention on Income and on Capital." Comparative and International Law Journal of Southern Africa 53, no. 1 (2020). http://dx.doi.org/10.25159/0010-4051/6245.
Full textAbstract:
The Commentaries to the OECD’s Model Tax Convention on Income and on Capital are at times consulted by South African courts when double taxation agreements are interpreted. The question considered in this article is the nature of the interaction, if any, between these Commentaries and section 233 of the Constitution of the Republic of South Africa, 1996. Section 233 requires a court to prefer a reasonable interpretation of legislation that is consistent with international law over other interpretations that are not consistent with international law. The contribution analyses various aspects of the wording of section 233, including the meaning of the phrase ‘international law’. It points out the various roles that transnational sources may play with regard to section 233, for example these sources may either constitute the ‘international law’ to which section 233 refers, or they may be aids to the interpretation of those sources that constitute ‘international law’. The contribution considers which of these roles the Commentaries are most likely to play for purposes of section 233.
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Rajgopalan, Ganesh. "United Nations Model Tax Convention – Proposed Inclusion of Software in the Definition of Royalties in Article 12: Comments on the 2020 Discussion Draft." SSRN Electronic Journal, 2020. http://dx.doi.org/10.2139/ssrn.3715609.
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KOROL, Volodymyr, and Oksana NEBYLTSOVA. "Ukrainian Tax Legislation and the EU acquis Novelties in the Context of BEPS Action Plan Implementation." University Scientific Notes, February 25, 2020, 221–34. http://dx.doi.org/10.37491/unz.73.20.
Full textAbstract:
The article comprises comparative law analysis findings of the tax legislation of Ukraine novelties relating to controlled foreign companies coming into effect on January 1, 2021 in the context of provisions of the Council Directive (EU) 2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market which is effective as of January 1, 2019. The special consideration is given to the types and levels of control necessary and sufficient for qualifying foreign companies as controlled by residents, respectively, Ukraine or EU Member States required by the Tax Code of Ukraine and above-mentioned EU legislative act. In particular, it’s discovered that Ukrainian lawmakers introduced not just legal and economic control but also factual to be provided by residents-related persons. Alongside with that, the peculiarities of concentrated ownership concept, implemented within Ukrainian tax legislation modernized, are examined in depth. It’s highlighted key differences from two models described within OECD Final Report on Action 3 BEPS Project the most commonly used in the world resulting from accepting and integrating just separate elements of each of them. It’s researched both common aspects and differences between Ukrainian and EU’ approaches with regard to passive income which shall be attributed to controlled foreign companies’ controlling parties proportionally to their shares as well as substantive analysis allowing CFC rules non-application. Attention is focused on de-minimis requirements reasonableness and fairness stipulating non-inclusion of CFC’s certain share of income to the taxable income of the residents of Ukraine under the condition that the total revenues of all of the controlled foreign companies from all sources of one controlling party, either legal or physical person, are within limits of 2 million Euro per year. Comparative analysis provided affords ground for conclusion that legislative model relating to controlled foreign companies implemented by Ukraine is stricter significantly then EU’s one. It determines the risks of tax avoidance new tactics and strategies implementation by domestic taxpayers. Keywords: tax avoidance, controlled foreign company, tax burden, passive income, substantial activity, BEPS.
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KOROL, Volodymyr, and Oksana NEBYLTSOVA. "Ukrainian Tax Legislation and the EU acquis Novelties in the Context of BEPS Action Plan Implementation." University Scientific Notes, February 25, 2020, 221–34. http://dx.doi.org/10.37491/unz.73.20.
Full textAbstract:
The article comprises comparative law analysis findings of the tax legislation of Ukraine novelties relating to controlled foreign companies coming into effect on January 1, 2021 in the context of provisions of the Council Directive (EU) 2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market which is effective as of January 1, 2019. The special consideration is given to the types and levels of control necessary and sufficient for qualifying foreign companies as controlled by residents, respectively, Ukraine or EU Member States required by the Tax Code of Ukraine and above-mentioned EU legislative act. In particular, it’s discovered that Ukrainian lawmakers introduced not just legal and economic control but also factual to be provided by residents-related persons. Alongside with that, the peculiarities of concentrated ownership concept, implemented within Ukrainian tax legislation modernized, are examined in depth. It’s highlighted key differences from two models described within OECD Final Report on Action 3 BEPS Project the most commonly used in the world resulting from accepting and integrating just separate elements of each of them. It’s researched both common aspects and differences between Ukrainian and EU’ approaches with regard to passive income which shall be attributed to controlled foreign companies’ controlling parties proportionally to their shares as well as substantive analysis allowing CFC rules non-application. Attention is focused on de-minimis requirements reasonableness and fairness stipulating non-inclusion of CFC’s certain share of income to the taxable income of the residents of Ukraine under the condition that the total revenues of all of the controlled foreign companies from all sources of one controlling party, either legal or physical person, are within limits of 2 million Euro per year. Comparative analysis provided affords ground for conclusion that legislative model relating to controlled foreign companies implemented by Ukraine is stricter significantly then EU’s one. It determines the risks of tax avoidance new tactics and strategies implementation by domestic taxpayers. Keywords: tax avoidance, controlled foreign company, tax burden, passive income, substantial activity, BEPS.
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Lien, Nguyen Phuong. "How Does Governance Modify the Relationship between Public Finance and Economic Growth: A Global Analysis." VNU Journal of Science: Economics and Business 34, no. 5E (2018). http://dx.doi.org/10.25073/2588-1108/vnueab.4165.
Full textAbstract:
Aiming to investigate the role of governance in modifying the relationship between public finance and economic growth, this study applied a seemingly unrelated regression model for the panel data of 38 developed and 44 developing countries from 1996 to 2016. It is easy to see that this research measures public finance by two parts of the subcomponents: total tax revenue and general government expenditure. We also call governance the “control of corruption indicator”. The finding indicates that governance always positively affects the economy. However, when it interacts with public finance, this interaction has a diverse effect on economic growth in developed countries, depending on tax revenue or government expenditure. Nevertheless, in developing countries, this interaction has a beneficial impact on the growth of an economy.
 Keywords: Governance, public finance, economic growth, developed and developing countries.
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