Tax Treaties

Treaties dealing with the division of taxing rights between states.

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)/ /Leave a comment
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

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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

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

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

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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

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

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…

India, OECD, Tax Treaties

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Though India has been having tax treaties with over 90 countries across the globe for several decades now, interpretation of various provisions of the treaties continues to be a subject matter of protracted litigation to date. Many issues remain vexed in India, as very few of them are settled at the Supreme Court level. As…

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…

Brexit, CJEU, EU/EEA, Tax Treaties, Trade and Cooperation Agreement, United Kingdom

(Amsterdam Centre for Tax Law (ACTL) of the University of Amsterdam; Loyens & Loeff) and (Loyens & Loeff)/ /Leave a comment

The Trade Agreement between the EU and the UK rules out any direct effect. However, the Trade Agreement could have an indirect effect. EU Member States should interpret the capital ownership provisions in their bilateral tax treaties with the UK in line with the Trade Agreement and its provision on national treatment. On the basis…

Double Taxation, Financial institutions, Hybrids, International Tax Law, Limitation on benefits, Principal purpose test, Tax Administration, Tax Credits, Tax Planning, Tax Policy, Tax Treaties, Treaty shopping, United Kingdom, United States, Withholding Taxes

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

The relationship between treaties and domestic tax law ought to be straightforward. The pacta servanda sunt principle expressed in articles 26 and 27 of the Vienna Convention on the Law of Treaties itself implies that treaty obligations must be upheld notwithstanding domestic law. A variety of constitutional arrangements around the world mean that there is…

Administrative obligations, Germany, IP, Residence, Royalties, Tax Treaties

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1. Introduction To be able to compete successfully in international markets, companies need to turn their R&D results fast and effectively into marketable products. Thus, besides the development (enhancement, maintenance, exploitation) of IP, its protection is of essential importance for companies. In order to ensure maximum legal protection, companies oftentimes formally register their IP assets…

Digital platforms, Digital services tax, Double Taxation, MNE Profits, OECD, Pillar I, Tax Treaties, United Nations

(Professor Maastricht University and (co)owner Cygnus Tax BV, Apertas BV and Herreveld van den Hurk BV (i.o.))/ /Leave a comment

There’s something about OECD’s Pillar One. For some years now, the world has been under the spell of a new system of taxation of companies that make profits in countries without taking root there in any way. They often operate via internet platforms, which means that the profits that are generated elsewhere cannot be taxed…

Budget, India, Liability to tax, Residence, Ruling, Tax Treaties

, , (BMR Legal)/ /2 Comments

Introduction India’s 2021 Finance Bill proposes to add a definition of “liable to tax” in its domestic direct tax law. As per the definition, the term ‘liable to tax’, “in relation to a person, means that there is a liability of tax on such person under any law for the time being in force in…