International Exchange of Information in the Field of Direct Taxation

In connection with continually widening public budget deficits and related attempts of States to remove (or at least to eliminate) unfair tax practices, issues regarding the exchange of information, which is necessary for the proper performance of provisions of conventions for the avoidance of double taxation and/or national laws, have become topical. The purpose of this paper which includes starting points for subsequent analyses is to describe and assess the existing situation in the area of enshrinement of the concept of exchange of information in current conventions for avoidance of double taxation concluded by the Czech Republic according to the state valid on 1 January 2013. Having regard to this objective defined, the authors ignore other aspects such as the existence of memoranda of mutual cooperation concerning the exchange of information, existence of tax information exchange agreements concluded by the Czech Republic and Euroepan Union law in the given area and their contents. They briefly refer to these and other aspects in the chapter called “Discussion” where they point to other research possibilities in this area.

Effectiveness of the Beneficial Ownership Test in Conduit Company Cases

<p>Countries enter into double tax agreements with the economic objective of preventing double taxation of cross-border transactions. To achieve this objective, the contracting states agree reciprocally to restrict their substantive tax law. That is, a major policy of double tax agreements is to reduce double taxation of residents of states that are parties to the agreement. Residents of third states sometimes contrive to obtain treaty benefits typically by interposing a person or a conduit entity in one of the contracting states. In order to ensure that a resident of a contracting state who claims treaty benefits is entitled to them in substance, double tax agreements should be interpreted according to their substantive economic effect. Generally, double tax agreements follow the pattern of the OECD Model Tax Convention. The OECD Model Convention addresses the double taxation of dividends, interest and royalties, commonly collectively known as "passive income", in Articles 10, 11 and 12 respectively. These provisions usually operate by reducing withholding tax imposed by a source state on passive income that flows from the source state to a resident state. In order to prevent a resident of a third state from obtaining a source state withholding tax reduction by interposing a person or a conduit entity in the resident state, the OECD Model Convention requires the immediate recipient of passive income to be the "beneficial owner" of that income. That is, the OECD Model Convention requires the immediate recipient to be an owner in a substantive economic sense. Courts and commentators have difficulty in interpreting and applying the concept of beneficial ownership to conduit entities that are corporations, commonly referred to as "conduit companies". They have attributed the cause of the difficulty to the absence of a definition of the term "beneficial owner" in the OECD Model Convention. This thesis argues that the difficulty in applying the beneficial ownership concept to conduit companies has arisen not because of the absence of the meaning of the concept, but because logically and from an economic perspective the concept cannot be applied to companies in general, not to conduit companies in particular. The beneficial ownership test was meant to be a test of economic substance. From an economic perspective, the benefit or the burden of a contract entered by a company is economically enjoyed or borne by its shareholders. That is, in substance a company cannot be considered as owning income beneficially. From this consideration, it follows that conduit companies can never be considered entitled to treaty benefits. Nevertheless, the OECD Model Convention applies the beneficial ownership test to conduit companies pursuant to an assumption that at least in some cases conduit companies can be the beneficial owners of passive income. The Model Convention's assumption is based on the legal perspective that courts conventionally adopt. According to this legal perspective, companies hold income beneficially because they exist as separate legal entities from their shareholders. Courts find themselves battling these opposing perspectives when applying the beneficial ownership test to conduit companies. In order to make income tax law work efficiently, courts that are obliged to determine whether to honour claims to treaty benefits made by conduit companies have preferred to employ the legal perspective. Courts have justified this approach by adopting surrogate tests for the actual beneficial ownership test. Most of the surrogate tests do not relate to the concept of ownership at all. This thesis categorises the surrogate tests as "substantive business activity" and "dominion". By analysing reported cases, the thesis identifies deficiencies in these tests. One of the proposed outcomes of the thesis is to suggest an alternative approach for deciding conduit company cases. The thesis suggests that courts should consider an arrangement as a whole and investigate reasons for the existence of an immediate recipient of passive income in the specific corporate structure. The thesis also recommends amendments in the official commentary on Articles 10, 11 and 12 of the OECD Model convention in order to address the conceptual shortcomings inherent in those Articles.</p>

Effectiveness of the Beneficial Ownership Test in Conduit Company Cases

<p>Countries enter into double tax agreements with the economic objective of preventing double taxation of cross-border transactions. To achieve this objective, the contracting states agree reciprocally to restrict their substantive tax law. That is, a major policy of double tax agreements is to reduce double taxation of residents of states that are parties to the agreement. Residents of third states sometimes contrive to obtain treaty benefits typically by interposing a person or a conduit entity in one of the contracting states. In order to ensure that a resident of a contracting state who claims treaty benefits is entitled to them in substance, double tax agreements should be interpreted according to their substantive economic effect. Generally, double tax agreements follow the pattern of the OECD Model Tax Convention. The OECD Model Convention addresses the double taxation of dividends, interest and royalties, commonly collectively known as "passive income", in Articles 10, 11 and 12 respectively. These provisions usually operate by reducing withholding tax imposed by a source state on passive income that flows from the source state to a resident state. In order to prevent a resident of a third state from obtaining a source state withholding tax reduction by interposing a person or a conduit entity in the resident state, the OECD Model Convention requires the immediate recipient of passive income to be the "beneficial owner" of that income. That is, the OECD Model Convention requires the immediate recipient to be an owner in a substantive economic sense. Courts and commentators have difficulty in interpreting and applying the concept of beneficial ownership to conduit entities that are corporations, commonly referred to as "conduit companies". They have attributed the cause of the difficulty to the absence of a definition of the term "beneficial owner" in the OECD Model Convention. This thesis argues that the difficulty in applying the beneficial ownership concept to conduit companies has arisen not because of the absence of the meaning of the concept, but because logically and from an economic perspective the concept cannot be applied to companies in general, not to conduit companies in particular. The beneficial ownership test was meant to be a test of economic substance. From an economic perspective, the benefit or the burden of a contract entered by a company is economically enjoyed or borne by its shareholders. That is, in substance a company cannot be considered as owning income beneficially. From this consideration, it follows that conduit companies can never be considered entitled to treaty benefits. Nevertheless, the OECD Model Convention applies the beneficial ownership test to conduit companies pursuant to an assumption that at least in some cases conduit companies can be the beneficial owners of passive income. The Model Convention's assumption is based on the legal perspective that courts conventionally adopt. According to this legal perspective, companies hold income beneficially because they exist as separate legal entities from their shareholders. Courts find themselves battling these opposing perspectives when applying the beneficial ownership test to conduit companies. In order to make income tax law work efficiently, courts that are obliged to determine whether to honour claims to treaty benefits made by conduit companies have preferred to employ the legal perspective. Courts have justified this approach by adopting surrogate tests for the actual beneficial ownership test. Most of the surrogate tests do not relate to the concept of ownership at all. This thesis categorises the surrogate tests as "substantive business activity" and "dominion". By analysing reported cases, the thesis identifies deficiencies in these tests. One of the proposed outcomes of the thesis is to suggest an alternative approach for deciding conduit company cases. The thesis suggests that courts should consider an arrangement as a whole and investigate reasons for the existence of an immediate recipient of passive income in the specific corporate structure. The thesis also recommends amendments in the official commentary on Articles 10, 11 and 12 of the OECD Model convention in order to address the conceptual shortcomings inherent in those Articles.</p>

NETHERLANDS SEEKING FOR A NEW BALANCE IN THE INTERNATIONAL TAXATION

The article examines the combination of the Netherlands’ departure from the role of a transit jurisdiction for capital from all over the world and their struggle to attract the headquarters of multinational companies, including those migrating from the UK due to Brexit. It is shown that these processes are due to both fundamental reasons and the current need of countries for tax refunds to replenish their budgets to cover the consequences of the pandemic crisis. The author comes to the conclusion that the restructuring of the rules of international tax regulation which is going on now, may cause clashes of countries’ interests and strategies, which is illustrated by the example of the breakdown of the Agreement on the avoidance of double taxation between Russia and the Netherlands.

Effects of Double Taxation Agreements between Tanzania and India on the Foreign Direct Investments

The paper analyzed policy effects of Double Taxation Agreements (DTA) between Tanzania and India. The study employed desk study and mini-field research survey purposely to obtain primary data and qualitative information from the Tanzania Revenue Authority (TRA), High Commission of India and Indian companies. The paper found that Tanzania has no comprehensive national taxation policy which incorporates DTAs. The current treaties do not protect the government revenue losses. The loopholes include the denial of taxing the gains made by investors selling assets. However, the contribution of Tanzania-India DTAs in Foreign Direct Investment, (FDIs) flow in Tanzania has been significant positive. Indian FDIs have positive effects on Tanzanian employment. Moreover, the investments from India have brought massive capital flows and new technologies into the country. Tanzania-India DTA is more potential for sustainable national development. The study recommends the need to review and formulate New National Investment Policy 2019 that effectively integrate into sustainable fiscal and sector policies. Tanzania has to review all DTAs with aim of minimizing government revenue losses and to renegotiate all existing DTAs adopting UN Model Tanzania. It has to rationalize favoured bilateral treaties to signal their commitments to stable, correct, and often favourable treatment of foreign investors. Tanzania has to implement the Goal #17 of Sustainable Development Goal as that of “Partnering for Development” as a strategy to strengthen the means of implementation and revitalize the global partnership for sustainable development.

Reservations and declarations to tax treaties

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.

Practical Issues Regarding International Underppinnings of Tax Legislation Under the Auspices of Law No. 296/2020

In this article, it will be analyzed, from the perspective of doctrine and jurisprudence, the implications of some international aspects of tax legislation, under the auspices of the latest changes in the field of taxation made by Romania. For this purpose, it will be analyzed the implications of the new fiscal provisions regarding the international aspects from the perspective of Law no. 296/2020. In this sense, it will be focused upon certain issues such as international double taxation, transfer prices, affiliated businesses and corporate tax. Also, the case presented in the jurisprudence section enriched in the second part of the article comes to support the framework of the future application of the new provisions regarding certain fiscal aspects with elements of foreignness in Romania. The results of the research subsumed in this article highlight the fact that the tax legislation in Romania has had a significant improvement, especially in terms of international aspects of financial and tax law. In conclusion, both the analysis of the evolution of tax legislation and the case law presented show that there are significant improvements at a national level, both in terms of the quality of the enactment of a tax law and the way in which the provisions of the law are implemented in practice.