Tax Treaties

What a chance to discuss with economics and legal experts about the possible consequences of the adoption of Pilar 1 and 2 on EU law and tax treaties. In fact, while questions remain unanswered, some proposals can be made to improve the potential consequences of such adoption.

Num mundo globalizado, marcado pelas novas tecnologias, pela mobilidade, pela preocupação com o desenvolvimento e por espaços de integração económica profunda, os acordos para evitar e/ou eliminar a dupla tributação defrontam-se com golpes certeiros na sua vitalidade. Equacionar este desafio dos instrumentos bilaterais de resolução da dupla tributação é tarefa fundamental para a auto-suficiência do Direito Internacional Fiscal. Não se defende a perda de vigor das funções desempenhadas pelos acordos bilaterais, antes se aponta para a inadequação dos meios por esses utilizados. Lançar a reflexão sobre quais as respostas possíveis para os desafios colocados aos acordos para evitar e eliminar a dupla tributação numa era de fiscalidade global é o pretendido.

This case deals with a Portuguese decision on the qualification of amounts due from image and economic rights of football players.
The football industry involves billons of euro each year. Thus it is understandable that tax authorities have been paying increasing attention to the incomes of players, clubs and related entities. Footballers in many countries are now routinely audited, and many of these audits result in criminal proceedings.
As has been happening in other fields, there has been a growing trend in football towards the fragmentation of contracts. When a transfer is underway, players (or their representatives) are increasingly negotiating not only their remuneration for performance (sports employment contract), but also a wide variety of rights related, in some way, to their employment contract. Examples, besides the economic and image rights (covered by this decision), include bonuses, remuneration of representatives, fringe benefits, compensation for terminating the contract without valid cause, etc.
All of these incomes have a causal connection to the employment contract. It would be difficult to find a valid commercial reason for a football club to acquire rights regarding players performing for another club (although it would not be illegal or unreasonable).
However, mere causality is not enough to trigger source taxation, i.e., taxation in the state where the performance is exercised. The OECD Model commentaries’ wording requires that the income be derived from a player’s personal activities as such, exercised in that state. In other words, it requires a strict and strong connection between activity (performance) and income. Thus, the question in all these contracts is the degree to which an element of income is connected to the personal performance of the player.
The author believes that there are also valid reasons to enquire if the current rules still lead to a fair and balanced allocation of taxing rights.
Firstly, the author notes that the wording of the current criterion – “personal activities as such exercised in the other contracting state” – is not precise enough to provide legal certainty in this area. Thus, either the OECD Model or the Commentaries should be revised in order to provide further guidance.
Secondly, the author wonders whether the current criterion is the best one for allocating taxing rights. With respect to performers, it will always be a difficult task to distinguish between income “closely connected” to performance and other incomes. Perhaps it would be wise to introduce a “force of attraction” rule by which income “causally” connected (in the sense of income that accrued to the sportsperson or entertainer) due to the celebration of the sports employment contract should follow the rules applicable to employment income (especially when it is paid by the employer).
Thirdly, article 17 should be reassessed by noting the strengthening of bilateral treaties with anti-abuse provisions, namely the “principal purpose test”. In fact, if one takes the latter into account, article 17(2) loses part of its meaning.
In the author’s view, the clarification or replacement of the criteria used for the allocation of taxing rights in this field is a matter of urgency. The uncertainty in terms of legal interpretation leads to arbitrage, to unhelpful confrontations between taxpayers and tax authorities (with the frequent opening of criminal law procedures) to the detriment of the trust relationship that should always prevail in the relationship between taxpayers and tax authorities.

This book deepens the study of the law of treaties by offering specific solutions to current legal problems. It provides a high-level theoretical and practical approach, touching upon all major current issues of the law of treaties. It is noteworthy that each subject-matter discussed in this work was thoroughly analyzed and supported by a rigorous methodology, including the use of the most accurate terminology and a well-reasoned explanation of each of the issues addressed in accordance with the most authoritative legal scholarly writings. This work is also a helpful reference for governmental and diplomatic officials, legal practitioners and the legal academia at large in trying to understand how international acts are negotiated and adopted, what the rules are for the formulation of reservations and introduction of amendments to conventional texts, how a State is definitely deemed to be bound by an international act or treaty, which the effects are of a treaty that came into force and how treaties should be applied at the international level, etc.

Gelişen küresel ticaret, yatırım ve istihdam ilişkileri ile birlikte sayısı hızla artan çifte vergilendirmeyi önleme anlaşmaları devletler arasında ya da devletlerle vergi yükümlüleri arasında çifte vergilendirmeyi önleme anlaşmalarının yorumlanması ve uygulanmasından doğan uyuşmazlıkların çıkma olasılığının da artmasına neden olmaktadır. OECD ve Birleşmiş Milletler Model Vergi Anlaşmalarının 25. maddesi çifte vergilendirmeyi önleme anlaşmalarının yorum ve uygulamasından doğan uyuşmazlıkların giderilmesi için bir araç olarak değerlendirilir. Bu çalışmanın amacı, OECD Model Vergi Anlaşması ve Türk vergi anlaşmaları hukuku temelinde vergi anlaşmaları hukukunda uyuşmazlıkların çözümlenmesini tartışmaktır.

This paper aims to highlight the political aspect of tourism: politics is a fundamental yet much ignored component of tourism development and tourism studies. A research into the political dimensions of tourism industry towards the democratization fulfillment in the region of West Balkans is further discussed. The stipulated trade-off between democracy and growth is also examined. The results suggest that democracy reinforces progress in economic liberalization, which, in turn, improves growth.

Normas Relevantes: artículos 133, inciso a), y 148, Ley del Impuesto a las ganancias; artículos 21.7, 165 (VI).1 a 165 (VI).7, 165 (VIII).1 y 2, 165 (XIII).1, Resolución General AFIP 3576/13; disposiciones legales y reglamentarias concordantes y complementarias Los Estados han reconocido (o si se quiere, se han visto forzados a reconocer) que la mecánica aplicación de estas reglas básicas conduce a resultados tributarios inapropiados o indeseados en relación con otros aspectos del sistema fiscal.

This chapter of the United Nations Handbook on Selected Issues in Protecting the Tax Base of Developing Countries considers the taxation of capital gains realized by non-residents as an important measure for protecting developing countries’ tax base. Relative to the existing literature on this subject, the chapter makes five main new arguments. First, there are sound conceptual justifications for taxing non-residents’ capital gains. The prevailing assumption that only gains derived from nonresidents’ sales of immovable property (understood to include mining and mineral rights) should be taxed by the source state lacks sufficient rationale. Second, in light of the sound justifications for taxing capital gains, even Article 13 of the UN Model Tax Convention arguably imposes excessive limits on source countries’ taxing rights. Third, greater attention should be given to how non-residents’ capital gains are taxed, instead of whether they are taxed. Specifically, allowing losses to be taken into account and adopting measures that avoid the multiple taxation of the same economic gain may impart greater legitimacy to, and produce greater compliance with, the taxation of non-residents’ capital gains. Fourth, buyer withholding appears to be the most promising method both for detecting taxable sales and for enforcing the actual tax liability. By contrast, suggestions that the target company (where present) should be made secondarily liable unnecessarily erase the distinction between shareholder and corporate liabilities and are impractical given the target’s dealings with creditors. Fifth and finally, taxing non-residents’ capital gain is an important phenomenon even if it is not indispensable from a revenue perspective: it helps to maintain the fairness and integrity of the tax system, and may contribute to regulating the extensive offshore M&A markets often found for foreign direct investments into developing countries.

This study takes a fresh, thorough look at the interpretation and application of Article 3(2) and submits a new approach that transcends the current controversies and gridlock between the German and English positions into a holistic synthesis that is firmly based on the public international law principles of treaty interpretation enshrined in the Vienna Convention on the Law of Treaties.

Article 3(2) is a rule of interpretation contained in all important model conventions and most effective tax treaties. Despite its importance, the OECD Commentary on it comprises only five paragraphs that do not explain in detail how the provision is to be interpreted and applied. In consequence, the international debate has been intense and led to an update of the Commentary on Article 23 concerning how to treat qualification conflicts. Unfortunately, this has not put the controversies to rest, some of which are not resolved to this day, with plenty of adverse consequences in practice.

It is no exaggeration to say that the ongoing confusion and discord about the interpretation and application of Article 3(2) is one of the central issues plaguing the international tax system, because it is one of the main reasons why unintended double taxation and double non-taxation has persisted over the decades. The international debate continues to be divided into diametrically opposed positions, and the approach implemented by the OECD Commentary is outright rejected even by the courts of some OECD countries. Particularly the views of academics and courts in German-speaking countries (and to some extent in countries with related languages such as Swedish and Dutch) are different from those of the English-speaking world, with neither side accepting any merit in the other side's view.

Hence, the purpose of this study is to clarify the meaning and application of Article 3(2). It maps the entire historical debate on the provision, illuminates flawed assumptions and misunderstandings that have happened in its course, and outlines how these continue to fuel the current controversies. In addition, it provides a comprehensive analysis of German case law concerning the interpretation of tax treaties and examines the extent to which it has been influenced by erroneous views developed in doctrine. Finally, it clarifies the relationship between the article and the Vienna Convention rules on treaty interpretation, the meaning of 'context', and how the condition 'unless the context otherwise requires' is to be applied.

The latter is where the front line currently runs between the German and English views. In my opinion, this is the wrong battle and merely a result of the historical development of the debate, which has progressed without having succeeded in putting the ultimate issue at its core to rest. The result of this is an international barrage of conflicting arguments from all sides without common starting and vanishing point -- a maelstrom of complex controversies in which the unsuspecting novice must drown. This book is meant for all who find themselves at a loss in the midst of the ongoing debates and, worse, take either side without thorough contemplation.

Controlled foreign corporation rules are a fundamental piece of the international tax regime. They preserve national tax bases from erosion and profit shifting, counteract tax deferral and implement capital export neutrality policies. However, the application of these rules should be coordinated at treaty level, which would also serve to avoid undesirable policy effects. Tax treaties, as integrated by the Multilateral Convention, are now ready to support such a coordinated application of CFC rules. The new set of provisions for transparent entities can be used to this end, on the assumption that certain CFCs should also be treated as transparent entities. This article elaborates on some of these problems and illustrates how the new provisions dedicated to transparent entities allow a balanced application of treaties to CFCs.

Resumen: El presente artículo evalúa y plantea una crítica al Proyecto BEPS de la OCDE. En las primeras tres secciones del artículo se expone la lógica conductual de las empresas multinacionales, el contexto económico en el que se plantea la iniciativa BEPS y el desarrollo de las prácticas fiscales nocivas. En las secciones posteriores se aborda tanto los objetivos y principios del plan BEPS, como una evaluación crítica de su desarrollo. Finalmente, se concluye que el plan BEPS tiene defectos estructurales y funcionales que, aunque lo hacen el mejor esfuerzo contemporáneo para contrarrestar BEPS, es insuficiente para contener las prácticas de planeamiento fiscal agresivo por parte de las multinacionales.
Abstract: This article evaluates and proposes a critique on the OECD’s BEPS Project. In the first three sections of the article behavioral logic of multinational companies are exposed, as well as the economic context in which the BEPS initiative arises and harmful tax practices develop. In subsequent sections we approach the objectives and principles of the BEPS plan and also addressed a critique of its development. Finally, we conclude that the BEPS plan has both structural and functional defects, although they are the best contemporary effort to counter BEPS, it is insufficient to curb multinationals aggressive tax planning practices.
Palabras clave: Traslado de beneficios – Erosión de la base imponible – BEPS – Planificación fiscal agresiva – OCDE
Keywords: Profit shifting – Base erosion – BEPS – Aggressive tax planning – OECD

Responding to calls for reallocating taxing rights over multinationals' profits to reflect the place of user value creation, the OECD recently announced a Program of Work to implement international tax reform. I use the European Commission's 2018 proposal to introduce the "significant digital presence" concept into income tax treaties as an example of the type of approach the OECD favors, and argue that it is inferior to recently proposed digital services taxes (DSTs). DSTs directly address the question of where profits should be allocated and taxed, while SDP proposals subordinate this vital question to superfluous treaty conventions. Global tax coordination deserves better focal points.

This paper introduces a new dataset that codes the content of 519 tax treaties signed by low- and lower-middle- income countries in Africa and Asia. Often called Double Taxation Agreements, bilateral tax treaties divide up the right to tax cross-border economic activity between their two signatories. When one of the signatories is a developing country that is predominantly a recipient of foreign investment, the effect of the tax treaty is to impose constraints on its ability to tax inward investors, ostensibly to encourage more investment.

The merits of tax treaties for developing countries have been challenged in critical legal literature for decades, and studies of whether or not they attract new investment into developing countries give contradictory and inconclusive results. These studies have rarely disaggregated the elements of tax treaties to determine which may be most pertinent to any investment-promoting effect. Meanwhile, as developing countries continue to negotiate, renegotiate, review and terminate tax treaties, comparative data on negotiating histories and outcomes is not easily obtained.

The new dataset fills both these gaps. Using it, this paper demonstrates how tax treaties are changing over time. The restrictions they impose on the rate of withholding tax developing countries can levy on cross-border payments have intensified since 1970. In contrast, the permanent establishment threshold, which specifies when a foreign company’s profits become taxable in a developing country, has been falling, giving developing countries more opportunity to tax foreign investors. The picture with respect to capital gains tax and other provisions is mixed. As a group, OECD countries appear to be moving towards treaties with developing countries that impose more restrictions on the latter’s taxing rights, while non-OECD countries appear to be allowing developing countries to retain more taxing rights than in the past. These overall trends, however, mask some surprising differences between the positions of individual industrialised and emerging economies. These findings pose more questions than they answer, and it is hoped that this paper and the dataset it accompanies will stimulate new research on tax treaties.

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FORT BONIFACIO DEVELOPMENT CORPORATION vs. COMMISSIONER OF INTERNAL REVENUE- Transitional Input Value Added Tax


FACTS:
Petitioner was a real estate developer that bought from the national government a parcel of land that used to be the Fort Bonifacio military reservation. At the time of the said sale there was as yet no VAT imposed so Petitioner did not pay any VAT on its purchase. Subsequently, Petitioner sold two parcels of land to Metro Pacific Corp. In reporting the said sale for VAT purposes (because the VAT had already been imposed in the interim), Petitioner claimed transitional input VAT corresponding to its inventory of land. The BIR disallowed the claim of presumptive input VAT and thereby assessed Petitioner for deficiency VAT.

The term ‘beneficial owner’ has been applied by Ukrainian courts and tax authorities in the area of application of the provisions of double-taxation treaties since the adoption of the Tax Code of Ukraine, in 2010. The changing nature of the concept of beneficial owner, its importance as an instrument for counteraction of treaty shopping, and the necessity of improvement of its application in the Ukrainian reality are the main factors that have a strong impact on the development of national practice in the application of the concept of beneficial owner. The article focuses on the main challenges to application of the concept of beneficial owner in the context of prevention of tax avoidance as one of the purposes of double-taxation treaties in Ukraine.

Article 13 of the OECD Model tax treaty allows a source country to retain taxing rights on capital gains realized by non-residents on the sale of real (immovable) property in the source country. Recently, it has been modified to incorporate a further rule that has long been a feature of the UN Model treaty, namely extension of the definition of real property to include shares in land rich companies whose value is attributable to land they hold. Existing bilateral treaties differ widely in the actual coverage of Article 13 with significant variations in the definitions of land rich entities subject to the Article and of land, with some treaties deeming many types of rights associated with land to be land for the purpose of the Article. This paper surveys the range of rules used in different treaties and explores the reasons countries have adopted different approaches to the allocation of taxing rights over this type of gain.

On December 2018, Colombia and Japan concluded  a  Double  Taxation  Convention  that  was  in  line  with  Colombia ́s  aim  of  having  an  extensive  network  of  tax  treaties. Naturally, the tax treaty with Japan was drafted based on the oecd ́s tax model in its most updated version of 2017, which already includes the recommendations suggested by the beps action plan. However, since it is a bilateral agreement in which the parties can freely negotiate its content, there are several provisions in the treaty that deviate from the oecd ́s tax model and on which an analysis will be made. In addition, given Colombia’s recent membership to the oecd, the country established several reservations to the oecdt ax model, which will be compared with the content of the treaty signed with Japan

The basis of sovereignty is shifting from defined territories to defined peoples.  In other words, modern governments are transitioning their shape from territorial structures to associations of internationally mobile citizens.  This paper a comprehensive understanding of sovereignty and applies this definition to modern trends to prove the above thesis.
The first step to recognizing the shifting basis of government is an understanding of sovereignty that avoids the confusion and mysticism commonly surrounding the concept.  Section I explores the concept of sovereignty, demonstrating that it is rooted in either territory or people and calling for a definition that would predict which basis is more appropriate.  Because modern states are legally coequal, in order exercise absolute and unhindered authority, sovereignty must be mutually recognized by all other states.  Sovereignty is therefore the domain of absolute governmental authority established by agreement among states.  This definition fits every description of sovereignty and explains why absolute sovereignty first emerged when centralized states mutually agreed on territorial delineations of their respective zones of sovereign authority.  Though it is widely believed that the Treaty of Westphalia created the system of territorial sovereignty, the connection between the treaty and sovereignty is not well understood.
International treaties do not recognize sovereignty—they are the source of sovereignty.  Treaties are contracts between or among states that trade mutual limitations of future action.  Though sovereignty is often assumed to emerge from territory, absolute authority is created when states mutually agree to not interfere in the domestic affairs of other states.  This distinction is important to understand because, under a mindset in which sovereignty is a territorial phenomenon, when two states mutually agree to exercise a specific degree of jurisdiction within each other’s respective territories, this appears to be a violation of sovereignty.
However, states have the sovereign right to limit their territorial jurisdiction in exchange for the ability to exercise power beyond their borders.  The agreement does not violate sovereignty but, rather, changes the geography of the sovereignty of both states.  Because states use these agreements to assert control over their interests, this shift in sovereignty tends to involve each state remaining sovereign over their respective citizens that cross political borders.  These agreements include extradition treaties that assert jurisdiction over criminals fleeing internationally, investment treaties that assert control over domestic capital invested into a foreign territory, and tax treaties that allow states to derive income from the economic activities their residents wherever it occurs.  In the face of a globalized world of transborder activity, states are using treaties to shift their zones of absolute authority from territory to citizens.  If these treaties continue to proliferate, states would legally float on their roaming citizens.
Sovereignty is therefore created and shaped by agreements among political powers regarding the extent of their respective domains.  Following its definition and historical analysis proposed in this paper, sovereignty is shifting from existing over fixed land to existing over mobile populations.  By shifting the definition from exclusive territories to exclusive populations, the concept of sovereignty becomes more consistent, understandable, and aligned with the modern world.  This insight also offers predictions of how the growing network of treaties will affect future forms of political organization.

The globalisation process and, within the European framework, the implementation of the EU Single Market have led numerous corporations to overstep the national boundaries either to conduct phases of their economic process where it is more convenient or to expand their business abroad. Hence, the involvement of the diverse tax regulations of the countries, whose territories host such businesses, cannot be avoided. Thus, the lack of neutrality of taxation1 has brought the managers of big corporations to take more and more into consideration tax issues in their decision-making process, especially during periods of crisis.

Therefore, multinationals can pursue the aim of optimizing their fiscal burden by exploiting the legal options that the countries involved have given to their taxpayers, which constitute, de facto, the tax competition among the governments.
Such planning of the cross-border activities of a business, taking into consideration the different tax laws of the concerned states, is known as tax planning.

This phenomenon is becoming increasingly concrete even within the European borders, as companies located in one of the Member States of the European Union are entitled to take advantage of the numerous European directives issued in order to guarantee the European freedoms2.

Academic writings about tax planning encompass a great variety of legal matters concerning those operations that may be implemented by corporations to reduce their tax burden.
Conversely, the aim of this research is to point out the most common tax planning schemes, highlighting what are the limitation on benefits (LOB) provisions that are used in the Model Tax Convention on Income and on Capital by the OECD and in the US Model Income Tax Convention and describing how they work with reference to the treaty shopping practice and to the employment of the so-called base companies.
In addition, the work by the OECD in BEPS 2015 Final Reports is taken into account with reference to the above-mentioned fields and the relevant innovations provided by the document are presented and inspected: those supplementary anti-avoidance provisions are critically analysed in order to provide solutions to their weaknesses and to develop other solutions that enable tax administrations to achieve the same goal.

Furthermore, attention is paid to Action 12 in BEPS 2015 Final Reports, whose mandatory disclosure regime can be seen as a means to bypass the need of the anti-avoidance provisions exposed in the research, since the disclosure of the relevant information is set as a legal obligation in such system.
Under this perspective, the most suitable implementation of the mandatory disclosure regime is presented by making reference to the main characteristics that distinguish each tax jurisdiction.

In this study, an overall assessment of the article 5 of the OECD Model Tax Convention will be made and the conditions that constitute a permanent establishment for the non-resident companies, operating in Turkey, will be discussed in the light of the OECD commentaries on the articles of the model tax convention.

La reforma tributaria de 2016 ha introducido el concepto de beneficiario efectivo en el Estatuto Tributario colombiano como regla que determina ciertas obligaciones de información, como norma anti-abuso que permite desconocer determinados gastos, y como elemento definitorio de la norma general anti-abuso. Sin embargo, el contenido del concepto en tales normas dista de estar claro, lo que unido a las gravosas implicaciones que conllevan tales reglas plantea problemas de legalidad y seguridad jurídica. Este trabajo analiza el origen, contexto y contenido de tales reglas desde una perspectiva crítica, concluyendo sobre la inadecuación e incoherencia de la inclusión del concepto en el Estatuto Tributario. Por ello, se recomienda replantear el concepto a nivel internacional en lo que se refiere a intercambio de información, ajustar el mismo a nivel doméstico en Colombia, y eliminarlo del Estatuto Tributario o tenerlo por no puesto en relación con las normas anti-abuso.

This research about  GAARs in Latin America will explain  if these rules incorporate the doctrine substance over form (primacy of  reality vs legal forms and juridical structures), or the doctrine of the business purpose (motive of business) ; and if other LATAM countries that not have such rules apply the Principle Abuse of Law to combat tax avoidance.

We also wish to examine whether  cause of contract  allows a better investigation of the chosen legal forms by the taxpayers in order to determine whether they are "abnormal" and they have no other purpose than to reduce their tax burden.

This article discusses how language idiosyncrasies affect the interpretation and application of tax treaties in practice, causing interpretative schisms in the international arena. To illustrate, the interpretation of the permanent home tie-breaker by the German Federal Fiscal Court, German commentators, and the German tax administration is analysed in detail. The example shows that reliance on the harmonising powers of the OECD Model and Commentary alone is no substitute for a comparison with the other authentic language texts or for having additional recourse to the prevailing text when such exists.

The present paper aims to delve into one of the most thrilling debates set out by the Base Erosion and Profit Shifting (BEPS) Project (specifically Action 1): the reconsideration of the permanent establishment threshold. Without disregarding the fiscal interests that have undeniably boosted the reopening of the discussion, we prefer to question the appropriateness of the PE from a different perspective. First, we will analyse the theoretical principles that originally served to justify the PE threshold. Subsequently, we will demonstrate the obsolescence of the term – as it currently stands – as a result of the challenges posed by the so-called digital economy and in light of the aforementioned principles. Some proposals for the way forward will be briefly outlined.

En este trabajo se analizan algunos aspectos fiscales ligados al desplazamiento temporal internacional de trabajadores. En primer lugar se analiza la exención del artículo 7.p) de la Ley del Impuesto sobre la Renta de las Personas Físicas. Según esta norma, los rendimientos obtenidos por el trabajo realizado en el extranjero pueden estar exentos cuando se cumplen una serie de requisitos. En segundo lugar, se analiza el concepto de empleador del artículo 15.2.b) del Modelo de la OCDE. Este precepto autoriza al Estado donde se desarrolla la actividad a gravar el salario de un no residente cuando su remuneración es pagada por, o en nombre de, un empleador que es residente en ese Estado.

This article analyzes some fiscal aspects arising from the international assignment of workers. In first place the exemption provided under Article 7.p) of the Spanish Personal Income Tax Act is studied. Under this provision, income derived from emplyment performed abroad will be exempt when certain requirements are met. In second place, the concept of employer provided in Article 15.2.b) of the OECD Model Tax Convention is analyzed. This Article allows the State of activity to tax a non-resident worker when his remuneration is paid by, or on behalf of, an employer who is a resident of that State.

El Concierto Económico de 2002 atribuye a los Territorios Históricos del País Vasco
competencias normativas, gestoras y de recaudación en materia de no residentes. Dicha atribución
de competencias se ha realizado siguiendo la estructura del impuesto sobre la renta de no residentes
que distingue entre no residentes con y sin establecimiento permanente. En este trabajo se analizan
los problemas que plantean las reglas de atribución de competencias en este ámbito tanto desde la
perspectiva interna como desde la perspectiva de los convenios para evitar la doble imposición internacional
y el Derecho de la Unión Europea.

This paper examines some of the factors a country must consider when deciding which method, or combination of methods, to use to implement double tax relief, including foreign tax credit, exemption or the deduction method. It examines economic double taxation and juridicial double taxation with a focus on the most common of the two, juridicial double tax.

Tags:
"Double taxation"
"Double tax relief"

En el presente trabajo se analizan las reglas para la determinación de la renta de establecimientos permanentes situados en Colombia. A tal efecto, el autor lleva a cabo un estudio sobre la base de las pautas que la OCDE establece en la materia, ya que el sistema de conceptos propuesto por este organismo internacional se adoptó como referencia por parte del legislador colombiano a partir de 2012. En concreto, en el marco del concepto de entidad funcionalmente separada, se analiza el contenido posible de las funciones, activos y riesgos susceptibles de ser asignados a un EP, así como las operaciones internas que lleva a cabo con la casa central y terceros. Cabe destacar así mismo que las referidas pautas están siendo objeto de revisión en el marco del proyecto BEPS, modificaciones que podrían tener impacto en la interpretación de la norma interna colombiana.

Recentes escândalos fiscais demonstraram a impotência dos sistemas tributários nacionais frente à sonegação fiscal e às mais diversas e criativas possibilidades em termos de planejamento tributário. Isso cria distorções no capitalismo de mercado, eis que o desejável seria que todos atuassem sob as mesmas condições concorrenciais e contribuíssem na medida de suas riquezas para o financiamento das atividades estatais. Diante disso, os Estados aparentam ter concluído que a solução do problema passa mais pela interação dos sistemas tributários do que por adequações isoladas na legislação interna. O presente artigo debaterá a atuação do Direito Tributário brasileiro nesse novo contexto do capitalismo.

This letter to the Treasury and the IRS is in response to Notice 2019-30’s request for recommendations for the 2019-2020 Priority Guidance Plan on tax issues that should be addressed through regulations, revenue rulings, revenue procedures, notices, and other published administrative guidance. Many of the recommendations concern profit shifting by multinationals.

The letter provides extensive and specific suggestions for a number of international tax areas including:

-- Sourcing rules (§§863, 864, and 865 in particular),

-- Entity classification rules (Reg §301.7701-1(a)(2)),

-- Subpart F manufacturing branch rule (Reg §1.954-3(b)), and

-- Application of tax treaties (Reg §1.894-1(d)).

ES: La regulación de situaciones jurídicas con elementos de extranjería relevantes es objeto común del Derecho internacional privado y del Derecho internacional tributario. El Derecho internacional privado se ha construido mayormente sobre la base del método conflictual: esto es, la determinación normativa del derecho aplicable a través de la norma «de conflicto». Por su parte, el Derecho internacional tributario se ha estructurado sobre la base de la limitación del poder tributario de los Estados cuyos ordenamientos son aplicables a un mismo hecho imponible, a través de la norma «distributiva». Bajo estas premisas, el artículo estudia la relación entre las normas «de conflicto» y las normas «distributivas» del Derecho internacional tributario, determina la naturaleza jurídica de estas últimas y analiza la institución del conflicto de calificación, como forma de comprobación de la tesis aquí sostenida.

EN: The regulation of legal situations with relevant foreign elements is the common object of both international tax law and private international law. On the one hand, private international law has been built based on the conflict-of-laws method; namely, the determination of the applicable law to a given situation under "choice of law" rules. On the other hand, international tax law bases itself on the limitation of the taxing powers of the States whose laws apply to a given taxable event through "distributive" rules. Against this background, the article studies the relationship between "conflict" and "distributive" rules of international tax law, determines the legal nature of the latter and analyses the institution of qualification conflicts as means of verification of the author’s thesis.

ES: La regulación de situaciones jurídicas con elementos de extranjería relevantes es objeto común del Derecho internacional privado y del Derecho internacional tributario. En su concepción restringida, el Derecho internacional privado se ha construido sobre la base del método conflictual: esto es, la determinación normativa del derecho aplicable. Por su parte, el Derecho internacional tributario se ha estructurado sobre la base de la limitación del poder tributario de los Estados cuyos ordenamientos son aplicables a un mismo hecho imponible. Bajo estas premisas, el artículo analiza la relación entre las normas «de conflicto», propias del Derecho internacional privado, y las normas «distributivas» del Derecho internacional tributario.

EN: The regulation of legal situations with relevant foreign elements is a common object of both international tax law and private international law. On one hand, in a minimalist approach, private international law has been built based on the choice of law rule; namely, determination of the applicable law to a given situation. On the other hand, international tax law bases itself on the limitation of the taxing powers of the States whose laws are applicable to a given taxable event. Under these premises, the article analyses the relationship between «conflict» rules, typical of private international law, and «distributive» rules of international tax law.

Being a South African expat myself, based in Guangzhou PR China, as well as a tax professional, I’ve found myself of course in the same position as any expat starting to work in another country. The same questions any expat has to deal with, I had also experienced first-hand, besides already possessing the technical knowledge to properly ascertain my SA Income Tax obligations. Added to that, due diligence requires that any expat should, on a regular basis, re-examine the tax treaty between the country they are working in, and SA, as well as monitor (via their professional tax consultant) any potential changes in the SA Income Tax Act.

In the midst of performing my own bi-annually due diligence Income Tax status check, and at the same time noticing some posts regarding expats and their SA Income Tax obligations that seemed to cause some confusion, I proceeded to compile this brief analysis (and guide, if you like) of the following obligations of every SA expat that leaves the RSA to start working in another country :

• The obligation to register for SA Income Tax, or not ;
• The obligation on whether an annual income tax return must be filed, or not ;
• The liability, if any, for paying tax on employment income earned by a South African person working in another country (hereafter “expat”).

Article on proposed Diverted Profits Tax Regime in the United Kingdom.

The article makes a point that DPT is unilateral treaty override mechanism.

The article throws light how new regime is ambiguously worded and how it can negatively impact genuine business arrangements.

This paper explores the question whether entering into double tax treaties leads to more foreign investment. The topic has been the subject of a number of studies that have generated inconsistent results. The paper reviews previous studies and notes the limitations that may have affected their results. It reports on a comprehensive regression analysis survey that drew upon a far larger data set and considered more independent variables than previous studies. The study found that the strong correlation between entering into double tax treaties and attracting more foreign direct investment is stronger than the relationship with most other independent variables. It considers, however, whether there may be other exogenous factors that can explain both the increase in treaties and in foreign direct investment.

A tax authority wants to take actions it knows will foster the greatest degree of voluntary taxpayer compliance to reduce the "tax gap." This paper suggests that even if a tax authority could attain a state of complete knowledge, there are constraints on whether and to what extent such actions would result in reducing the macro-level tax gap. These limits are not merely a consequence of finite agency resources. They are inherent in the system itself. To show that this is one possible interpretation of the tax gap data, the paper formulates known results in a different way by analyzing tax compliance as a population with a single covariate. This leads to a standard use of the logistic map to analyze the dynamics of non-compliance growth or decay over a sequence of periods. This formulation gives the same results as the tax gap studies performed over the past fifty years in the U.S. given the published margins of error. Limitations and recommendations for future work are discussed, along with some implications for tax policy.