For international tax law, it is of central importance how to locate, value & control the increasingly digital cross-border supply and service relationships within a multinational enterprise (MNE). This counts primarily from a tax authority perspective. Nevertheless, digitalization has not only significant effects for highly digitalized businesses but for the economy itself, as the overall…
A couple of days ago, in the last weekly session of the Indiana-Leeds Summer Tax Workshop, I attended the presentation of a fascinating paper by Steven A. Dean (A Constitutional Moment in Cross-Border Taxation)(1) where the author analyzes the political and economic predominant influence of central economies in the design and shape of post-WWI in…
Inspiration, purpose and the context of this contribution In the article “The PPT in Post-BEPS Tax Treaty Law: It Is a GAAR but Just a GAAR!”, Professor Robert Danon convincingly demonstrated that “while the PPT certainly permits a purposive interpretation, it may not be used to build into tax treaty law additional requirements that were…
Following the Supreme Court decision in Fowler v HMRC [2020] UKSC 22, the UK First-tier Tribunal has considered another case where classification of a source of income for tax treaty purposes was in issue. This time the question was classification as business profit or income from immovable property in the Canada-UK double tax treaty. In…
In last month’s blog I promised to address the treaty aspects of Davies and Others v HMRC [2020] UKUT 67 (TCC). The case concerned UK resident individuals who each took out a life insurance policy with a Bermuda insurer under which their entitlements were linked to a Mauritian company that developed land in the UK….
The OECD’s BEPS 2.0 project is currently navigating turbulent waters partly because of the unexpected Covid19 crisis and its impact on state budgets and the need for additional revenues, and partly because of internal tensions and conflicts within OECD dominant group of industrialized countries, the 140-member-state inclusive framework, and the business community. Disagreements include (but…
We have all become familiar with the expression in the PPT set out in article 7(1) of the MLI and article 29(9) of the 2017 OECD Model where “obtaining that benefit was one of the principal purposes of any arrangement or transaction”. Discerning which is a principal purpose is one of the main challenges in…
The OECD recently issued a paper called: “Resumption of application of substantial activities for no or nominal tax jurisdictions”, which is a quite elaborate way of saying that the OECD going forward will require substance in low or no tax jurisdictions. Their stated reason is “leveling the playing field” between low or no tax jurisdictions…
Many States have incorporated General Anti-Avoidance Rules (GAARs) into their tax laws to prevent tax avoidance; within the EU, a GAAR is even mandatory for corporate taxation since 1 January 2019 (Article 6 of the EU Anti-Tax Avoidance Directive (EU ATAD)). States are recommended in the OECD Model Tax Convention on Income and Capital to…
In my last blog, I looked at the immediate impact of Covid 19 Lockdowns on key elements of double tax treaties – residence, permanent establishment and employment income. Many tax administrations have published guidance on their approach to these issues. Indeed, almost immediately after the OECD also published helpful comment on them too. The general…
Measures to prevent the spread of coronavirus have impacted on every aspect of life. While the degree of enforced isolation and immobility varies from country to country, the basic elements remain the same: Most people are compelled to stay at home and to work from there if possible. The speed with which the pandemic has…
The Canadian Federal Court of Appeal has upheld the Tax Court of Canada decision in Canada v. Alta Energy Luxembourg S.A.R.L., 2020 FCA 43 (CanLII). The case is of some significance because the Canadian Revenue Agency (“CRA”) sought to apply the Canadian domestic general anti-avoidance rule (GAAR) in order to deny treaty relief. The…
Revised transfer pricing legislation set out in the Finance Act 2019 (No 45 of 2019), sections 24 to 27, represents a radical shift in the Irish approach to this area of international tax law. Transfer pricing legislation came somewhat later to Ireland than other OECD countries, having been first introduced in Finance Act 2010. The…
Two cases, currently before different courts highlight long-standing questions around the attribution of profits to permanent establishments. Irish and United Kingdom law on the attribution of profits to branches of non-resident companies remined identical for decades until 2003. In each country, a non-resident company trading through a branch in that country was chargeable to corporation…
