Abuse of law, Abuse of rights, Anti-tax avoidance, Beneficial ownership, Canada, Corporate income tax, Direct taxation, Dividends, Double Taxation, income tax, International Tax Law, Loans, OECD MC Convention, Tax Avoidance, Tax haven, Tax Planning, Tax Treaties, United Kingdom, Withholding Taxes

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The recent English Court of Appeal decision in Hargreaves Property Holdings Ltd v HMRC [2024] EWCA Civ 365 http://www.bailii.org/ew/cases/EWCA/Civ/2024/365.html  has again examined the meaning of beneficial ownership and the related expression “beneficially entitled” in UK domestic tax law. It follows shortly after the Tax Court of Canada decision in Husky Energy Energy Inc. v The…

Abuse of law, Abuse of rights, Anti-tax avoidance, Beneficial ownership, Canada, Dividends, Double Taxation, Finance, Financial transactions, GAAR, income tax, International Tax Law, Luxembourg, MLI, OECD, OECD MC Convention, Share Dealings, Tax Avoidance, Tax haven, Tax Treaties, Treaty shopping, Withholding Taxes

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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…

Abuse of law, Anti-tax avoidance, Beneficial ownership, Canada, Direct taxation, Dividends, Double non-taxation, Double Taxation, DTA, Finance, Financial transactions, Holding company, International Tax Law, OECD, Tax Treaties, Treaty shopping, Withholding Taxes

(Temple Tax Chambers; King’s College London)/ /2 Comments

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…

Advance pricing agreement, Anti-tax avoidance, BEPS, Corporate income tax, DEMPE, Intangibles, International Tax Law, IP, MAPs and APAs, MNE Profits, OECD, Tax Avoidance, Transfer Pricing, United Kingdom

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Back in 2015, my first ever blog asked Does the UK Diverted Profits Tax help or hurt BEPS? Whatever the answer, the level of complexity and the challenges it brought to UK cross-border taxation cannot be underestimated. The recent decision of the UK Upper Tribunal in in Refinitiv Ltd and others v HM Revenue &…

Administrative Co-operation, Administrative cooperation, Double Taxation, ECHR, EU, Exchange of Informaion, International Tax Law, OECD, Rule of law, Tax Treaties, United Kingdom, United States

(Temple Tax Chambers; King’s College London)/ /1 Comment

It has been 60 years since publication of the OECD 1963 Draft Double Taxation Convention on Income and Capital. That model has provided the core and structure of all subsequent model double tax treaties published by the OECD, the UN and some states. During this period the number of bilateral tax treaties has grown exponentially….

Abuse of law, Anti-tax avoidance, Beneficial ownership, BEPS, Direct taxation, Financial transactions, Fund management, Ireland, MLI, OECD, Principal purpose test, Tax haven, Tax Treaties, Treaty shopping, United Kingdom, Withholding Taxes

(Temple Tax Chambers; King’s College London)/ /4 Comments
article 3(2), burden of proof, OECD Commetary, treaty interpretation, UN Commentary

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…

CJEU, Direct taxation, ECJ, EU, Germany, Indirect taxation, International Tax Law, Non-established taxpayers, OECD, Permanent Establishments, Physical presence, Place of taxation, Tax Treaties, United Nations, VAT

(Temple Tax Chambers; King’s College London)/ /Leave a comment

The very recent CJEU judgement in Berlin Chemie A. Menarini v Administraţia Fiscală pentru Contribuabili Mijlocii Bucureşti (Case C-333/20) ECLI:EU:C:2022:291, admirably examined by Giorgio Beretta last week considered the circumstances in which a subsidiary might be a VAT fixed establishment (FE) of its parent company or another affiliate. A Romanian company supplied advertising, marketing and…

Canada, International Tax Law, Tax Treaties, United Kingdom

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English may be the lingua franca of our time, but it is not the only language of international law. Royal Bank of Canada v HMRC [2022] UKUT 45 (TCC).  raised issues around the interpretation of a tax treaty concluded in English and French, both languages being equally authentic. The complex facts are summarised at https://kluwertaxblog.com/2020/07/29/income-from-immoveable-property-article-6-and-royalty-streams/….

CJEU, Double Taxation, DTA, Dual VAT, ECJ, Financial institutions, Financial services, Fixed establishment, Indirect taxation, International Tax Law, Pensions, Permanent Establishments, Physical presence, Place of Supply, Place of taxation, Tax Treaties, United Nations, VAT, VAT grouping

(Temple Tax Chambers; King’s College London)/ /Leave a comment
PVD article 44

Territorial connection (or its more fashionable name “nexus”) for tax purposes is expressed in a variety of ways in domestic and international legal instruments. Permanent establishment in article 5 of the Model treaties and “fixed base” in article 14 of the UN Model are central concepts in direct tax subject matter jurisdiction. Fixed establishment The…

Australia, DTA, International Tax Law, Personal income tax, Tax Treaties, United Kingdom

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The right to be free from discrimination is perhaps the single most important human right as indicated by the fact that it appears as the first article in the UN Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights.” In the field of international taxation, article 24…

Corporate income tax, Double Taxation, Finance, Financial institutions, Financial services, International Tax Law, Liability to tax, MLI, OECD, Permanent Establishments, POEM, Residence, Rule of law, Tax Treaties, United Kingdom, United Nations, United States

(Temple Tax Chambers; King’s College London)/ /1 Comment

G E Financial Investments Limited v HMRC [2021] UKFTT 210 (TC)  raised central aspects of the interpretation of double tax treaties. My previous blogs considered the corporate residence  under article 4(1) of the UK-US Double Tax Treaty and the existence of a permanent establishment under article 5(1) of the treaty. The First-tier Tribunal decided that…

Corporate income tax, Dispute resolution, Double Taxation, India, International Tax Law, OECD, Permanent Establishments, Physical presence, Place of taxation, Tax Treaties, United Kingdom, United States

(Temple Tax Chambers; King’s College London)/ /3 Comments
Delaware law, habitual exercise

Last month my blog discussed the questions relating to corporate residence and article 4(1) of the UK-US Double Tax Treaty raised in G E Financial Investments v HMRC  [2021] UKFTT 210 (TC). This month the focus is on the permanent establishment issues. The case concerned a complex financing structure General Electric Company group. The taxpayer,…

Canada, Corporate income tax, Double Taxation, International Tax Law, MAPs and APAs, MNEs, OECD, Permanent Establishments, Residence, Tax Treaties, United Kingdom, United States

(Temple Tax Chambers; King’s College London)/ /2 Comments

When is a taxpayer a resident of a contracting state for purposes of a tax treaty? The decades old definition in article 4(1) of the OECD Model that ‘“resident of a Contracting State” means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place…

Common Reporting Standard, Compliance, Europe, Germany, Italy, Law enforcement, MNE Profits, Tax transparency, United Kingdom

(Temple Tax Chambers; King’s College London)/ /Leave a comment

Tax authorities have relied on informers for investigative leads perhaps since taxes were first imposed. In the 21st Century high profile cases of theft of taxpayer information by employees of service providers including banks and professional firms have provided data not only of interest to tax authorities but also as a driver of international tax…