Aktuelles zum Thema Grundrechtsschutz von Steuerpflichtigen – zugleich Konferenzbericht zum Seminar der ILA Study Group on International Tax Law zu „Public international law and taxation“ am 11.10.2019 in Luxemburg

2019 ◽  
Vol 8 (12) ◽  
pp. 434-436
Author(s):  
Robin Miller
Keyword(s):  
International Law ◽  
Tax Law ◽  
Study Group ◽  
Public International Law ◽  
International Tax

scholarly journals THE SINGLE TAX PRINCIPLE AS A LIMIT TO DOUBLE NON-TAXATION? A BROAD PERSPECTIVE

2019 ◽  
Vol 8 (8) ◽  
pp. 389-414 ◽  
Author(s):  
Alejandro Zubimendi
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
Public Expenditure ◽  
Fiscal Policies ◽  
Broad Perspective ◽  
Public International Law ◽  
Tax Legislation ◽  
Single Tax ◽  
Equity Principle ◽  
International Tax

In recent years, double non-taxation phenomenon has gained some importance. This phenomenon means that income is not subject to tax anywhere. Based on a purported international tax regime, some academics have defended the existence of a single tax principle which prohibits double taxation as well as double non-taxation. From a political standpoint, States enjoy fiscal sovereignty in order to design the rules to accomplish their own fiscal policies. In the current economic context of globalization, countries compete with each other in order to attract foreign investment and capital. To achieve these goals, countries use fiscal instruments, such as public expenditure or taxes. Nevertheless, countries are different from each other and may have different goals in consideration of their preferences. There are countries that base their competitiveness on offering good public infrastructures, whereas other countries are focused on low taxation to attract foreign investment, and even there are other countries, due to their economic structure, able to secure good public infrastructures with low taxes. Therefore, a country is free and sovereign to “untax” the income over which it has tax powers. The question is whether there are limits to the tax sovereignty of countries so that they may prohibit certain forms of double non-taxation. These supranational limits might be identified in the structure of the international tax regime. These attributes of the international tax regime inform largely the tax legislation of the international community. Those principles are the interpersonal equity or ability-to-pay principle, the neutrality principle, and the justice in the allocation of the taxing powers or internation equity principle. Nevertheless, from a positivistic and public international law standpoint, these supranational principles do not bind countries to hold a minimum threshold of taxation.

scholarly journals Revisiting the Case of Customary International Tax Law

2021 ◽  
Vol 23 (1) ◽  
pp. 79-103
Author(s):  
Dirk Broekhuijsen ◽  
Irma Mosquera Valderrama
Keyword(s):  
International Law ◽  
International Taxation ◽  
Customary Law ◽  
Tax Law ◽  
Profit Shifting ◽  
Customary International Law ◽  
The Creation ◽  
International Tax

Abstract Customary international tax law has traditionally not received a lot of acclaim in international tax law literature. However, the infrastructure of international tax law is becoming increasingly multilateral. The recent adoption of the Multilateral Instrument and the creation of the Inclusive Framework, two initiatives related to the OECD/G20 Base Erosion and Profit Shifting Project, have accelerated the width of cooperation on international tax matters. For that reason, the authors (re)consider the existence of customary international law in the area of international tax law. They conclude that, perhaps contrary to the intuition of tax lawyers, the evidence in favour of customary international tax law is building up. The question whether customary law exists within the area of international taxation is therefore not misplaced.

scholarly journals Trends and sources of international taxation = Tendencias y fuentes de la fiscalidad internacional

2019 ◽  
Vol 11 (1) ◽  
pp. 438
Author(s):  
Carlos María López Espadafor
Keyword(s):  
International Law ◽  
International Taxation ◽  
Tax Law ◽  
Double Taxation ◽  
National Examination ◽  
General Basis ◽  
International Tax ◽  
International Conventions ◽  
Legislative Production

Abstract: International Tax Law has grown significantly and this has caused a considerable in­crease in the importance of the legislative production affecting it, through both national and internatio­nal rules. Within those rules of international origin, conventions intended to avoid international double taxation stand out, essentially those following the OECD model. Along with this and also within Eu­ropean Union law, there has been a significant structuring of the rules involving international taxation. That said, we can never lose sight -upon the basis of the dogmatic structuring of international taxation- of the General International Law rules affecting it. These may occasionally be overshadowed by the rules of the countless international conventions on the matter, but the former rules cannot cease to be taken as the basis. Therefore, the globalized structuring of international taxation cannot ignore the gene­ral principles upon which it will be based, either as direct sources in matters of international tax law, or as a sub-discipline within tax law proper. Indeed, the national structuring of international tax law cannot be carried out just by taking into consideration the legislative results of globalization, but also by never losing sight of the principles that lead to general international law tax matters. Even though globaliza­tion as a process begins to play a greater role in tax law issues, the country’s national examination of international tax law cannot divert from the general basis of this tax law sub-discipline.Keywords: International taxation, Financial and Tax Law, International Tax Law, General International Law, sources of Law.Resumen: La fiscalidad internacional ha experimentado un gran crecimiento, aumentando con­siderablemente el volumen de producción normativa que le afecta, ya se trate de normas de origen internacional o de normas de origen interno. Dentro de las fuentes de origen internacional que le afec­tan, destacan especialmente los convenios para evitar la doble imposición internacional, esencialmente siguiendo el Modelo de la OCDE. Junto a ello, también dentro de la disciplina jurídica de la Unión Eu­ropea se ha producido un importante desarrollo de las normas que afectan a la fiscalidad internacional. Ahora bien, en la base de la construcción dogmática de la fiscalidad internacional no se deben perder de vista las normas de Derecho Internacional General que le afectan, ensombrecidas a veces por las normas de los numerosísimos convenios internacionales en la materia, pero que éstos no pueden dejar de tomar como base. Así pues, el desarrollo globalizado de la fiscalidad internacional no puede desconocer los principios generales que le deben servir de base, ya sea como fuentes directas en materia de fiscalidad internacional, ya sea como bases esenciales sobre las que conformar la fiscalidad internacional, como subdisciplina dentro de la disciplina tributaria. Incluso el desarrollo a nivel interno de la fiscalidad inter­nacional no se puede hacer sólo tomando en consideración los resultados normativos del fenómeno de la globalización, sino que debe hacerse también sin perder nunca de vista los principios que derivan en materia tributaria del Derecho Internacional General. Aunque el fenómeno globalizador cobre un espe­cial protagonismo en materia tributaria, la contemplación interna de la fiscalidad internacional no puede alejarse de las bases generales de esta subdisciplina tributaria.Palabras clave: Fiscalidad internacional, Derecho Financiero y Tributario, Derecho Internacional Tri­butario, Derecho Internacional General, fuentes del derecho.

scholarly journals BEPS principal purpose test and customary international law

2020 ◽  
Vol 33 (3) ◽  
pp. 745-766
Author(s):  
Irma Johanna Mosquera Valderrama
Keyword(s):  
International Law ◽  
Public Law ◽  
Political Support ◽  
Tax Law ◽  
Profit Shifting ◽  
Customary International Law ◽  
Arm’S Length Principle ◽  
State Practice ◽  
Subjective Element ◽  
International Tax

AbstractThe overall aim of this article is to analyse the principal purpose test as an emerging rule of customary international tax law. By means of the principal purpose test, the tax administration can deny the tax treaty benefit if one of the principal purposes of the action undertaken by the taxpayer was to obtain a benefit. This principal purpose test has been developed by the OECD with the political support of the G20 as one of the actions to tackle Base Erosion and Profit Shifting by multinationals (BEPS Project). At the time of writing, 137 jurisdictions including non-OECD, non-G-20 countries have committed to the implementation of the principal purpose test in their current and future tax treaties. Based on the analysis of the objective element (state practice) and subjective element (accepted as law), there are indications that this principal purpose test can emerge as a principle of customary international law. In the past, international tax law scholars addressed the customary international law regarding the OECD/UN tax treaty Models, the OECD Harmful Tax Practices, and the arm’s length principle. However, current international tax developments, including the BEPS Project, call for an analysis of the main elements of customary international law in respect of the principal purpose test, a general anti-avoidance rule that by its own nature, is often general, vague, and imprecise. Therefore, the findings of this article can be useful for generating new areas of research by international public law, international law, and international tax law experts.

1 Introduction

2021 ◽  
Author(s):  
Hongler Peter
Keyword(s):  
International Law ◽  
Tax Law ◽  
Comprehensive Understanding ◽  
Global Forum ◽  
History Of ◽  
International Tax

The first chapter of the book starts with some definitions of important terms used throughout the book such as ‘international law of taxation’, ‘international tax law’, or ‘the international tax regime’. Afterwards, reference is made to the history of the international tax regime. Moreover, the competences and the functioning of some of the most important institutions relevant for the international law of taxation are discussed. This includes the UN, the OECD, the Inclusive Framework, and the Global Forum. A particular chapter is dedicated to the question of sovereignty in tax matters. This is necessary for a comprehensive understanding of the sources of the international law of taxation as outlined in Chapter 2.

International Law of Taxation

2021 ◽  
Author(s):  
Hongler Peter
Keyword(s):  
International Law ◽  
Case Law ◽  
Tax Law ◽  
The European Union ◽  
International Treaties ◽  
Major Area ◽  
Trade Law ◽  
International Trade Law ◽  
Investment Law ◽  
International Tax

International law of taxation is a very dynamic discipline, and a book such as this is just a snapshot of the current international tax regime. The goal of this book is to provide the reader with insights on how the international tax regime is embedded in a broader context in the international law regime. The focus of this book, therefore, is on the interaction of the international tax law regime with other legal regimes, such as the international trade law or the investment law regime. Moreover, this book outlines the main elements of the European Union (EU) tax system. Of course, besides these cross-disciplinary areas, this book discusses the functioning of double tax treaties as the main legal sources of the international tax regime. The more recently crafted treaty-based rules of the international tax regime, such as the mutual exchange provisions in various international treaties, are also discussed. This book can and should serve as a course book for a course on international tax law. Depending on how such course is structured, the entire book or large parts of it may be of interest to the students. The book should also serve as a go-to source for practitioners. It is of course impossible to cover all the topics pertinent to the international tax regime in a comprehensive way, but no major area has been left out. Moreover, case law from around the world are referred to and discussed rather than approaching the topic with reference only to a specific jurisdiction.

Taxes and Custom: Tax Treaties as Evidence for Customary International Law

2020 ◽  
Vol 23 (3) ◽  
pp. 747-769
Author(s):  
Céline Braumann
Keyword(s):  
International Law ◽  
Field Research ◽  
International Taxation ◽  
Tax Law ◽  
Test Case ◽  
Best Interest ◽  
Tax Treaties ◽  
Customary International Law ◽  
State Practice ◽  
International Tax

ABSTRACT Scholars of public international law have not paid attention to international tax law in the past. This article seeks to fill this vacuum and to foster cross-field research by studying customary international law in international tax law. It assesses the value of international tax law’s most prominent feature for the identification of custom: the dense network of almost identical, bilateral double tax treaties. The primacy of source-based taxation for business profits serves as a test case for this purpose. The International Law Commission’s conclusions on the identification of customary international law constitute the theoretical reference point that informs the empirical analysis. Thus, this article simultaneously serves as a treadmill test to appraise whether the International Law Commission’s conclusions actually offer practical guidance. The analysis culminates in the conclusion that tax treaties have only little value for the identification of customary international law. First, tax treaties alone do not entail representative state practice. Second, tax treaties give rise to the pitfalls of the Baxter paradox. Third, the tax treaty network yields no evidence that any state practice originates from opinio juris. Judging by the evidence brought into play so far, states likely display uniform treaty practice in international taxation because they believe it is in their best interest, not due to any legal conviction.

scholarly journals A Tributação do Expatriado Estrangeiro à Luz do Direito Internacional Tributário do Brasil

2014 ◽  
Vol 9 (2) ◽  
Author(s):  
Ana Carolina Assumpção Stoffel
Keyword(s):  
International Law ◽  
Multinational Companies ◽  
Tax Law ◽  
Private International Law ◽  
Fiscal Equalization ◽  
International Tax ◽  
Political Economic ◽  
Relationship Of ◽  
The Relationship ◽  
Present World

A TRIBUTAÇÃO DO EXPATRIADO ESTRANGEIRO À LUZ DO DIREITO INTERNACIONAL TRIBUTÁRIO DO BRASIL  THE TAXATION OF FOREIGN EXPATRIATES IN ACCORDANCE WITH BRAZILIAN INTERNATIONAL TAX LAW RESUMO: É indiscutível que o Direito Internacional Privado vem ganhando cada vez mais destaque dada a sua crescente aplicação no presente cenário mundial, especialmente diante da globalização que promove a incessante interação entre pessoas jurídicas e físicas de diferentes nacionalidades. Como uma das resultantes desse fenômeno, inúmeros profissionais são transferidos de seu país de origem, a fim de fixar residência na localidade em que a empresa para a qual trabalha possui filial, matriz ou subsidiária. Ou seja, a expatriação vem se tornando um acontecimento frequente em empresas multinacionais, e dada a complexidade envolvida no processo de transferência de um funcionário de um país para o outro, a temática precisa ser considerada de diferentes ângulos: jurídico, cultural, político, econômico, entre outros. Nessa direção, o presente trabalho dedica-se análise das principais questões ligadas à tributação de estrangeiros que se encontram no Brasil, por questões laborais, o que significa apontar para a tributação de rendas e proventos de qualquer natureza, além de abordar critérios de conexão e residência fiscal no Direito Internacional Tributário e, por fim, a relação dos principais vistos com a tributação e a política de equalização fiscal. PALAVRAS-CHAVE: Direito Internacional Tributário; Expatriado-estrangeiro; Residência fiscal; Tratados Internacionais Tributários. ABSTRACT: There is no doubt that Private International Law is gaining more and more prominence due to its growing application in the present world scenario, especially in face of the globalization that promotes the non-stopping interaction between companies and individuals of different nationalities. As a result of this phenomenon, many professionals are transferred from their country of origin, in order to take up residence in the place which the company for which they work for has an affiliate, matrix, or subsidiary. I.e., expatriation is a commonplace event in multinational companies and given the complexity of the process of transferring an employee from one country to another, the issue needs to be considered from different angles: legal, cultural, political, economic, etc. Thus, this paper focuses on the analysis of the main issues regarding the taxation of foreigners that are in Brazil for labor issues, which means pointing at the taxation of their income and earnings of any nature, as well as to approach the criteria of connection and tax residence under the International Tax Law, and, finally, to approach the relationship of the main types of visa with taxation and the policy of fiscal equalization. KEYWORDS: International Tax Law; Foreigner expatriates; Tax residence; International Tax Trade.

Domestic Anti-Avoidance Legislation in Relation to Tax Treaty Law

2017 ◽  
Vol 6 (2) ◽  
pp. 312
Author(s):  
Shkumbin Asllani
Keyword(s):  
International Law ◽  
Tax Avoidance ◽  
International Taxation ◽  
Main Principle ◽  
Legal Practice ◽  
Tax Treaties ◽  
International Tax ◽  
Tax Payers ◽  
The Relationship ◽  
Domestic Law

In today’s international taxation most of the developing countries enter into tax treaties which are drafted in line with the OECD MC to eliminate double taxation. Yet, is well-known fact that tax treaties in practice are abused by tax payers, therefore, majority of states have introduce legislation specifically designed to prevent tax avoidance and protect their domestic interests. In legal practice and literature the act of overriding international tax treaties and denying treaty benefits in favour of domestic law provisions threatens main principle of international law and therefore is questionable to what extend the relationship between domestic law and international tax treaty agreements bridges the international norms.

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