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>

Managing the Dollar Over Its Cycles

The United States has ceded to the rest of the world managing the dollar’s value. For a generation, the U.S. authorities have all but withdrawn from the foreign exchange market. Yet the dollar does not float freely as a result of this hands-off U.S. policy. Instead, other authorities manage the dollar exchange rates, albeit separately. These authorities make heavier purchases of dollars in its downswings than in the upswings, damping its decline. Thus, the Fed finds that accommodative monetary policy transmits less to U.S. manufacturing and traded services, and relies on still lower rates to stimulate interest-sensitive housing and auto demand. The current U.S. dollar policy of naming and shaming surplus-running countries accumulating foreign exchange reserves does not seem to work. Three alternatives warrant consideration. First, the U.S. could reinstate its withholding tax on interest income received by non-residents and even add policy criteria to bilateral tax treaties. Second, the U.S. authorities could retaliate by selling dollars against the currencies of dollar-buying jurisdictions running chronic surpluses. However, either the withholding tax or such retaliatory foreign exchange intervention pose huge practical challenges. Third, the U.S. authorities could re-enter the foreign exchange market, making large-scale asset purchases in foreign currency when the dollar rises sharply against its average value. Such a policy would encourage private investment in U.S. traded goods and service production. The challenge is to set ex ante foreign exchange intervention rules to guide market participants’ expectations, even positioning them to do the authorities’ work.

Türkiye’de Lisanslı Depoculuk Faaliyetlerine Yönelik Bir Araştırma (Kırşehir İli Mucur İlçesi LİDAŞ Örneği)

Licensed warehousing activities in the agricultural sector started with the Agricultural Products Licensed Warehousing Law No. 5300, which was enacted in 2005. It was opened with the support of the state, was developed with the published regulations and started to work under the leadership of the state. The importance of licensed warehouses has increased with the sustainable agriculture approach, which is among Turkey's 2023 Strategic Goals. In Turkey, their number has been increasing in recent years and the licensed warehousing system is of great importance in terms of agricultural products. In this study, the theoretical dimension of the licensed warehousing system and the producers delivering cereals to LİDAŞ operating in Kırşehir Mucur district were evaluated. The sample of the research consists of 70 producers who deliver products to LİDAŞ in the region. When the results obtained are examined, 61.40% of the producers cannot store, 45.70% keep their products at LİDAŞ for an average of 1-3 months, the most important support tool is withholding tax, 80.00% is pricing. It has been determined that LİDAŞ does not have any influence on the cereal planting decision of 60.00%. In addition, other problems of the producers, procedural problems, analysis fees, loading and unloading fees, warehouse rental fees and withholding costs create a negative situation for the producer. The real decline in the amount of support comes to the fore as negative thoughts about working personnel, low capacity in storage facilities and narrow product range to be stored. It can be said that the tendency towards licensed warehousing activities will increase with the solution of these problems.

Perception of Taxpayers and Tax Administrators Towards Value Added Withholding Tax in Zimbabwe

Value added tax is a key tax for generating revenue in Zimbabwe and all African states, and for financing the budget in African countries. VAT revenue has an essential role in budgetary policymaking. Every year revenue authorities are not collecting large amounts of VAT for various reasons, including ineffective administration and tax evasion. This brings the question of the reform of the VAT system to the forefront. In Zimbabwe, attempts to improve VAT revenue collection have been made over several years. Hopes were pinned on the use of fiscalisation and audits of VAT refunds.1 However, traders continue to evade VAT – and this has led to the introduction of value added withholding tax to improve VAT revenue collection.

The Cum-ex Case: A Look at Germany

This paper focuses on a particular form of stock-market trades around ex-dividend days, so-called “cum-ex” transactions, which have resulted in major revenue losses due to illegitimate tax refunds in Germany and other European nations. Until 2012, the loophole in the German withholding tax scheme made it possible for cum-ex traders to receive withholding-tax certificates without prior withholding-tax payment. Because a certain category of investors might use the tax certificates to gain a tax exemption, this opened up the prospect of a particular form of tax arbitration. It was not until 2018 that a cross-border investigation team called the Cum-Ex Files revealed the scandal to its full extend.This paper will mainly focus on the cum-ex scandal in Germany since the literature on the topic is very limited.

Does withholding tax on interest limit international profit-shifting by FDI?

Research background: Poland is a significant recipient of intercompany loans as a part of foreign direct investment (FDI) debt instruments reported in the Balance of Payments. Most of them come from the developed West European countries ? Netherlands, Luxembourg, France, Germany, and Belgium. Igan et al. (2020) confirm debt-based FDI inflows to emerging markets had a higher impact on the industries? growth in the pre-crisis period 1998?2007 than after (till 2010). Purpose of the article: We aim to identify withholding tax (WHT) impact on intercorporate loans inflow to Poland and analyse the relationship between trade credit and intercompany loans to assess the importance of the profit-shifting role of FDI after 2010. Methods: To reflect the impact of withholding tax and trade credit on inter-company loans (inward debt-based FDI) in 2011?2017 to Poland, we use Arellano-Bond and random effects panel model estimators. The estimated specification is derived from the knowledge-capital model and includes two types of capital: human and physical. Findings & value added: We show that WHT on interests reduces profit-shifting by multinational companies? intercompany lending to Poland. But intercompany loans are positively related to foreign trade credit. Unlike in the case of total FDI inward to Poland (Cieślik, 2019), we identified that vertically integrated multinational enterprises are more likely to provide loans to Polish firms. This study is the first to confirm that withholding tax of interests reduces international profit-shifting by FDI and to provide evidence on the relation-ship between foreign trade credit and intercompany loans provided by multi-national companies.