Tax teaty entitlement / editors, Michael Lang [and four others].

Format:

Book

Contributor:

Lang, Michael, 1965- editor.

Series:

WU Institute for Austrian and International Tax Law European and international tax law and policy series ; Volume 11.

European and International Tax Law and Policy Series ; Volume 11

Language:

English

Subjects (All):

Double taxation--Treaties--Congresses.

Double taxation.

Physical Description:

1 online resource (297 pages) : illustrations.

Edition:

1st ed.

Place of Publication:

Amsterdam, The Netherlands : IBFD, 2019.

Summary:

This book takes a timely and detailed look at crucial areas concerning the entitlement to tax treaties.

Contents:

Cover

Title

Copyright

Preface

Chapter 1: The Relevance of the Preamble for Treaty Entitlement

1.1. Introduction

1.2. The legal status of the preamble for interpretation

1.2.1. The legal status of the preamble in treaty interpretation

1.2.2. The legal status of the preamble in tax treaty law interpretation

1.3. Stated objectives of tax treaties in the new preamble

1.3.1. Elimination of double taxation

1.3.2. Avoidance of treaty abuse

1.3.2.1. Without creating opportunities for non-taxation or reduced taxation

1.3.2.2. Tax evasion

1.3.2.3. Tax avoidance

1.3.2.4. Treaty-shopping arrangements

1.4. Conclusion

Chapter 2: The Application of the Principal Purpose Test under Tax Treaties

2.1. The background and design of the principal purpose test

2.1.1. PPT and recent OECD/G20 and OECD developments

2.1.2. The background to the PPT rule

2.1.3. The tax avoidance situations at which the PPT is aimed

2.1.4. The design of the principal purpose test

2.2. The objective and subjective elements of abuse under the PPT

2.2.1. "Any arrangement or transaction"

2.2.2. "A benefit" under the tax treaty

2.2.3. The subjective element: "One of the principal purposes"

2.2.4. "Object and purpose of the relevant provisions"

2.3. Procedural aspects of application of the PPT and its legal consequences

2.3.1. Standard of proof and allocation of burden

2.3.2. Lack of legal consequences under the PPT

2.3.3. Separate legal rule or interpretative tool

2.4. Conclusions

Chapter 3: Limitation on Benefits Clauses: Limiting the Entitlement to Treaty Benefits

3.1. Introduction

3.2. Objective of limitation on benefits clauses and their history

3.2.1. Objective of limitation on benefits clauses: The countering of treaty shopping

3.2.2. Historical background and recent developments.

3.3. Mechanism and structure of a limitation on benefits clause

3.3.1. Limiting the entitlement to treaty benefits

3.3.2. Tests of a limitation on benefits clause

3.3.3. Scope, legal consequences and procedural aspects

3.4. Comparison of detailed and simplified limitation on benefits clauses

3.4.1. Preliminary remarks

3.4.2. Entitlement of qualified persons

3.4.2.1. Publicly traded companies and their subsidiaries

3.4.2.2. Companies satisfying the ownership and base erosion test

3.4.3. Entitlement of non-qualified persons

3.4.3.1. Companies owned by equivalent beneficiaries

3.4.3.2. Headquarters companies

3.5. Policy considerations and the relationship between limitation on benefits clauses and the principal purpose test

3.5.1. Limitation on benefits clause versus principal purpose test

3.5.2. Limitation on benefits clause and principal purpose test

3.6. Conclusions

Chapter 4: The Beneficial Ownership Test

4.1. Background

4.2. The meaning of beneficial ownership

4.2.1. Beneficial ownership as a broad anti-abuse rule

4.2.2. Beneficial ownership as an attribution-of-income rule

4.2.3. The forwarding approach

4.3. Beneficial ownership without treaty reference

4.4. Beneficial ownership in other treaty articles

4.5. Beneficial ownership as a basic principle

4.6. Conclusion

Chapter 5: Resident Persons According to Article 1(1) of the OECD Model

5.1. General remarks

5.2. The term "person" according to article 1(1)

5.2.1. Relevance of the term "person"

5.2.2. Interpretation of the term "person"

5.2.2.1. General definition of "person" according to article 3(1)

5.2.2.2. Autonomous versus domestic interpretation of the term "person"

5.2.2.3. Qualification conflicts

5.2.2.4. Terms defined in article 3(1).

5.2.3. The classification of selected entities as persons

5.2.3.1. Application of tax treaties to selected entities

5.2.3.2. Divergent country practice: Explicit inclusion or exclusion of certain entities

5.3. Role and function of article 1(1)

5.3.1. To what extent is article 1(1) necessary?

5.3.2. Interaction with specific articles

5.3.2.1. Article explicitly applicable to non-residents and a special meaning of the term person

5.3.2.2. Articles implicitly applicable to non-residents

5.3.2.3. Articles explicitly applicable to non-residents

5.3.3. Result: Article 1(1) throughout the OECD Model

Chapter 6: Dual Residence and Treaty Entitlement of Individuals

6.1. Introduction: Reasons for the existence of dual residency

6.2. Permanent home

6.3. Centre of vital interest

6.4. Habitual abode

6.5. Nationality

6.6. Mutual agreement procedure

6.7. Article 11(5) and its relation to tiebreaker rules

6.8. Application of the tiebreaker rules in article 15(2) for the determination of the residence of the employer

6.9. Article 24(4) and (5) and potential applicability of tiebreaker rules

6.10. Conclusions

Chapter 7: Dual Residence for Non-Individuals

7.1. Introduction: From a tiebreaker to an anti-abuse provision

7.2. Causes of dual residence for entities from a legal and commercial perspective

7.2.1. Dual residence as a tax treaty phenomenon

7.2.2. Motives behind situations of dual residence

7.3. The "traditional" approach: Place of effective management as the tiebreaker for dual resident non-individuals

7.3.1. The place of effective management (POEM) as sole tiebreaking criterion

7.3.2. Limitations and criticism

7.3.3. Reform considerations and divergent country practices.

7.4. The "modern" standard: Case-by-case decision and loss of treaty entitlement as an anti-abuse measure

7.4.1. Mutual agreement replaces general tiebreaker rule

7.4.2. Procedure and factors for determining residence under the new provision

7.4.3. Criticism and legal concerns

7.4.4. Practical acceptance as part of the multilateral instrument (MLI)

7.5. Impact on third parties and treaties with third states under the new provision (overview)

7.6. Conclusion

Chapter 8: Tax Treaty Entitlement and Hybrid Entities: Article 1(2) and Article 1(3) of the OECD Model (2017)

8.1. Issues related to the application of tax treaties to hybrid entities

8.1.1. The source of issues: Conflicts of allocation

8.1.2. The OECD Partnership Report

8.1.3. Hybrid entities and the BEPS Project

8.2. Tax treaty entitlement for hybrid entities under article 1(2) of the OECD Model (2017)

8.2.1. Object and purpose of article 1(2) of the OECD Model (2017)

8.2.2. US Model

8.2.3. Interpretation of the terms used in article 1(2) of the OECD Model (2017)

8.2.3.1. "Income"

8.2.3.2. "Derived by or through"

8.2.3.3. "An entity or arrangement"

8.2.3.4. "Wholly or partly fiscally transparent"

8.2.3.4.1. "Fiscally transparent"

8.2.3.4.2. "Wholly or partly"

8.2.3.5. Conclusion regarding the terms used in article 1(2) of the OECD Model (2017)

8.3. Which conflicts of allocation fall under the scope of article 1(2) of the OECD Model (2017)?

8.3.1. Different forms of conflicts of allocation

8.3.2. Not all conflicts of allocation fall under the scope of article 1(2) of the OECD Model (2017)

8.3.3. How to apply tax treaties to conflicts of allocation not covered by article 1(2) of the OECD Model (2017)?

8.4. The influence of article 1(3) of the OECD Model (2017) on the tax treatment of fiscally transparent entities.

8.4.1. Object and purpose of article 1(3) of the OECD Model (2017)

8.4.2. The relationship between articles 1(2) and 1(3) of the OECD Model (2017)

8.5. Final conclusions

Chapter 9: Entitlement to Protection against Discriminatory Taxation

9.1. Introduction

9.2. The nationality-based non-discrimination in article 24(1) and its relationship with article 1(1) of the OECD Model

9.2.1. A national versus a resident of a contracting state: Effect of the different terminology in articles 24(1) and 1(1) of the OECD Model

9.2.2. Entitlement of nationals of a contracting state who are not resident in either contracting state to invoke article 24(1) of the OECD Model and possible effects

9.2.3. Requirement for residence in one or both contracting states and treaties that follow the 1963 OECD Model

9.2.4. Non-discrimination of stateless persons in article 24(2) of the OECD Model and its relationship with article 1(1) of the OECD Model

9.3. The PE non-discrimination provision and the entitlement to the application of a treaty by PEs

9.3.1. The PE non-discrimination provision and article (1) of the OECD Model

9.3.2. Potential extension of treaty benefits to PEs in PE triangular cases under the PE non-discrimination provision

9.3.3. PE non-discrimination provision and partnerships

9.4. Effects of EU law on entitlement to protection against discriminatory taxation

9.4.1. Direct and indirect discrimination

9.4.2. Treaty protection for non-residents

9.5. Conclusions

Chapter 10: Personal Scope of the Mutual Agreement Procedure and Arbitration Provisions, and the Mutual Assistance Provisions

10.1. Introduction

10.2. Personal scope of the tax treaty dispute resolution provisions

10.2.1. General overview

10.2.2. Personal scope of the MAP provision.

10.2.2.1. Article 25(1) of the OECD Model: Specific-case MAP.

Notes:

At head of title on cover: WU Institute for Austrian and International Tax Law.

Includes bibliographical references.

Description based on print version record.

Description based on publisher supplied metadata and other sources.

ISBN:

90-8722-507-5

90-8722-506-7

OCLC:

1151199388