Part I. International treaty autonomous BO-GAAR relationship “[T]he concept of beneficial ownership is a basic principle of income taxation: the beneficial owner of income is the person who should be taxed on the income. [(…)] The concept of beneficial ownership is not a good anti-avoidance rule for dealing with conduit and other tax avoidance arrangements….
In my previous blog I examined the Tax Court of Canada’s analysis of the meaning of beneficial ownership in tax treaties in Husky Energy Inc. v The King, 2023 TCC 167 in relation to stock or securities lending. This post examines the application of the General Anti-Avoidance Rule(GAAR) in Canada to the transactions. The facts…
Although the meaning of beneficial ownership in tax treaties first burst onto the scene in Indofood International Finance Ltd v JP Morgan Chase Bank N.A. London Branch [2006] EWCA Civ 158 and, for the first time in Canada in Prévost Car Inc. v R 2008 TCC 231, (affirmed 2009 FCA 57), its meaning and application…
We are happy to inform you that the latest issue of the journal is now available and includes the following contributions: Han Kogels, A Changing World Making the Road to Carbon Neutrality Even More Bumpy Since the Conference of the Parties (COP) in Glasgow in November 2021 (COP26) the world has changed dramatically. In February…
Even before introduction of the BEPS PPT, the UK has had purpose-based provisions in various forms, designed to limit access to treaty benefits in its double tax treaties since the 1960’s. Its standard formulation first appeared in 1992. Surprisingly, the first case in which the meaning and application of this wording in a tax treaty…
Analysis of the ECJ judgments, reading by national courts, and impact on tax treaty practice Authors: Robert Danon,[1] Daniel Gutmann,[2] Margriet Lukkien,[3] Guglielmo Maisto,[4] Adolfo Martín Jiménez,[5] Benjamin Malek[6] (Forthcoming: Intertax, vol. 49, 2021, issue 6/7) Since they were delivered in 2019, the judgments of the ECJ in the Danish cases have been widely…
The U.S. has a highly successful international financial service industry that is important to the U.S. economy, exemplified by, firstly, the international financial centers such as Miami and New York of over a half-trillion dollars of foreign deposits of high net wealth individuals whom many experts allege are not tax and exchange control compliant in…
On 10 July 2020, the Italian Supreme Court (also ‘Court’) issued its decision No. 14756 (‘Decision 14756/2020’, published in H&I 2020/470 with comments by Arginelli and Tenore) dealing, amongst others, with the interpretation of the beneficial owner requirement under the Interest and Royalty Directive (Directive 2003/49/EC; ‘IRD’) and the abuse of the IRD. The case…
With the General’s Court ruling on July 15, 2020, a first step has been taken in the question whether the Irish government has provided Apple with State Aid. So far, the General Court has ruled that the Commission has not been able to prove that the Irish government has provided State Aid to Apple. The…
Recently, national courts of several EU member States (notably France[1], Italy[2], the Netherlands[3] and Spain[4]) referred to the landmark judgments of the Court of Justice of the European Union (“CJEU”) in the so-called “Danish cases”.[5] On 20 April 2020, the Swiss Supreme Court gave its own interpretation of these judgments[6] in an outbound dividend case…
In its judgment of January 21, 2020 (Santander case, available here), the European Court of Justice (ECJ) not only prevented the Spanish Central Tax Tribunal (Tribunal Económico-Administrativo Central – TEAC) from requesting a preliminary ruling due to its lack of juridical independence (para. 77), but it also recalled its obligation to ensure that EU law…
With a judgment rendered on 16 December 2019 (case no. 2C_209/2017), the Swiss Federal Supreme Court (“FSC”) rejected several reclaims of Swiss dividend withholding taxes made by a Luxembourg resident financial institution (“Lux Bank”) and thereby denied the claimant the benefits of the double taxation treaty between Switzerland and Luxembourg on income and capital taxes…
It is widely accepted that the United States of America is one of the most litigious countries on earth. As of 2010, US residents spent about 2.2% of their GDP (approximately 310 Billion Dollars) annually on litigation costs[1]. There are more lawyers per capita in the United States that any other country in the world….
Jonathan Schwarz has already briefly discussed the CJEU’s judgment in the “Danish Beneficial Ownership Cases” (C-115/16, C-118/16, C-119/16, C-299/16 and C-116/16 and C-117/16), noting that the cases “represent a landmark on beneficial ownership” and comparing them to recent international tax law jurisprudence, concluding that the “voyage of discovery is certainly not at and end”. In…
