The interpretation of tax treaties in relation to domestic gaars / Eivind Furuseth.

Format:

Book

Author/Creator:

Furuseth, Eivind, 1975- author.

Series:

Doctoral series ; Volume 43.

IBFD Doctoral series ; Volume 43

Language:

English

Subjects (All):

Tax evasion (International law).

Tax evasion.

Double taxation--Treaties.

Double taxation.

Physical Description:

1 online resource (353 pages) : illustrations.

Edition:

1st ed.

Place of Publication:

Amsterdam, The Netherlands : IBFD, 2018.

Summary:

This book analyses the relationship between tax treaties and domestic anti-avoidance rules, particularly whether a treaty restricts the application of domestic general anti-avoidance rules (GAARs).

Contents:

Cover

IBFD Doctoral Series

Title

Copyright

Preface

Abbreviations

Part I: Introduction

Chapter 1: Setting the Scene

1.1. The relationship between domestic anti-avoidance rules and tax treaties

Chapter 2: Possible Ways of Dealing with a Potential Conflict between Domestic Anti-Avoidance Rules and Tax Treaties

2.1. Resolving the issue

Chapter 3: Developing the Research Question

3.1. Introduction

3.2. Circumventing domestic legislation without benefiting from a tax treaty

3.3. The benefit from the transaction/arrangement follows from the tax treaty

3.3.1. Use of domestic legislation as a tool to circumvent tax treaties

3.3.1.1. Introduction

3.3.1.2. A definition in the tax treaty covers the transaction

3.3.1.3. No definition covering the transaction in the tax treaty

3.3.2. Use of a tax treaty as a tool to circumvent domestic legislation

3.3.2.1. Treaty shopping

3.3.2.2. Directive shopping

3.3.2.3. Back-to-back transaction

3.3.2.4. Other distributive rule

3.4. The relevance of tax treaty GAARs and/or SAARs for the application of domestic anti-avoidance rules

Chapter 4: Outline of the Book

4.1. Explanation

Chapter 5: Legal Sources

5.1. Introduction

5.2. OECD Comm.

5.3. OECD reports and other reports

5.4. UN Comm. as a source of law in the interpretation of tax treaties based on the OECD MC

5.5. Domestic case law as a source of law

Chapter 6: Delimitations

6.1. Tax evasion and sham

6.2. EU/EEA law

6.3. Analysis of domestic anti-avoidance rules

6.4. The concept of beneficial owner

6.5. Formalities

Part II: OECD and UN Documents Relevant for the Applicability of Domestic Anti-Avoidance Rules in a Tax Treaty Situation

Chapter 7: Introduction

7.1. The relationship between domestic anti-avoidance rules and tax treaties.

Chapter 8: Historical Overview of OECD Comm. Art. 1 and UN Comm. Art. 1

8.1. OECD Comm. Art. 1

8.1.1. Abuse-of-treaty and domestic anti-avoidance rules

8.1.2. Object and purpose

8.1.3. Is there an inherent "guiding principle" in tax treaties?

8.1.4. 2003 OECD Comm. and BEPS

8.2. UN Comm. Art. 1

8.3. Summary

Chapter 9: Interpretation of the Treaty in its Context: The OECD Comm. and the UN Comm.

9.1. OECD Comm. Art. 1 views on domestic anti-avoidance rules

9.1.1. OECD Comm. Art. 1 - In general

9.1.2. OECD's use of the term "facts" - Various interpretations

9.1.3. The applicability of domestic anti-avoidance rules in relation to articles in the OECD MC other than OECD MC Art. 1

9.1.4. The relevance of the OECD Comm. 2003 and 2017 revision for pre-2003 and pre-2017 treaties

9.1.4.1. Introduction

9.1.4.2. Changes in the Commentary relating to changes in the OECD MC

9.1.4.3. Changes in the Commentary without any changes in the OECD MC

9.2. UN Comm. Art. 1 views on domestic anti-avoidance rules

9.2.1. In general

9.2.2. Specific legislative anti-abuse rules found in domestic law

9.2.3. General legislative anti-abuse rules found in domestic law

9.2.4. Judicial doctrines that are part of domestic law

9.2.5. Specific anti-abuse rules found in tax treaties

9.2.6. General anti-abuse rules in tax treaties

9.2.7. The interpretation of tax treaty provisions

9.2.8. The applicability of domestic anti-avoidance rules in relation to other articles in the UN MC than UN MC Art. 1

9.2.9. 2001 UN Comm. vs 2011 UN Comm.

9.3. Differences and similarities between the OECD Comm. and the UN Comm. regarding Art. 1

9.4. Summary

Chapter 10: Relevance of the Object and Purpose for the Interpretation of Tax Treaties

10.1. The legal background

10.2. The object and purpose of a tax treaty.

10.2.1. How to determine the object and purpose of a tax treaty?

10.2.2. More than one object and purpose of a tax treaty

10.2.3. GAARs applied in a tax treaty situation

10.2.3.1. Introduction

10.2.3.2. Increased risk of double taxation

10.2.3.3. Conflicting interests between the two main objects of the tax treaty

10.2.4. GAARs not applied in a tax treaty situation

10.2.5. GAARs applied but only to the extent that the domestic GAAR is in accordance with the guiding principle

10.3. Summary

Chapter 11: The Guiding Principle in 2017 OECD Comm. Art. 1 Para. 61

11.1. Introduction

11.2. First condition of the guiding principle - Main purpose of the transaction is to secure a favourable tax position which would not have been possible without the transaction

11.2.1. The purpose test

11.2.2. The purpose of the transaction

11.3. Second condition of the guiding principle - Obtaining reduced taxation on the transaction or arrangement is contrary to the object and purpose of the relevant provision of the treaty

11.3.1. Introduction

11.3.2. Do the distributive rules have their "own" object and purpose?

11.3.3. Is double non-taxation an object of the treaty?

11.3.4. Summary

11.4. Summary

Chapter 12: Observations on the OECD Comm.

12.1. In general

Part III: Domestic GAAR/SAAR but no Treaty GAAR/SAAR

Chapter 13: Introduction

13.1. Alternative ways of dealing with the issue

Chapter 14: Use of Domestic Legislation to Circumvent Domestic Legislation without Benefiting from a Tax Treaty

14.1. Introduction

14.2. Without benefiting from the tax treaty - Domestic anti-avoidance rules outside the scope of the treaty?

14.3. Summary

Chapter 15: The Benefit from the Transaction/Arrangement Follows from the Tax Treaty

15.1. Introduction.

15.2. Use of domestic legislation as a tool to circumvent tax treaties

15.2.1. Introduction

15.2.2. A definition in the tax treaty that covers the transaction

15.2.3. No definition in the tax treaty itself

15.3. Use of a tax treaty as a tool to circumvent domestic legislation

15.3.1. Introduction

15.3.2. Redetermination of a counterparty of a transaction

15.3.2.1. In general

15.3.2.2. Outbound situations

15.3.2.3. Inbound situations

15.3.2.4. The relevance of active income in the intermediate company

15.3.3. Recharacterization of a transaction

15.3.4. Secondary adjustment

15.4. Summary

Chapter 16: The Potential Conflict Resolved in the Tax Treaty

16.1. Introduction

16.2. Which anti-avoidance rules are covered by the treaty provision?

16.3. Written or unwritten rules?

16.4. Only explicit anti-avoidance rules or also rules with anti-avoidance effect?

16.5. Amendment of domestic anti-avoidance legislation

16.6. Restricted by the guiding principle

16.7. Unilateral regulation of the applicability - Reciprocity

16.8. The consequence when some tax treaties expressly allow domestic anti-avoidance rules while others do not

16.9. Summary

Chapter 17: Both Contracting States Agree on the Anti-Avoidance Situation

17.1. Introduction

Part IV: The Relevance of a GAAR/SAAR in the Tax Treaty

Chapter 18: GAARs in the Tax Treaty

18.1. Introduction

18.2. Does a tax treaty GAAR exclude the applicability of a domestic GAAR?

18.3. Tax treaty GAAR in some tax treaties but not all

18.4. Tax treaty GAARs and the abuse-of-treaty doctrine

18.5. Summary

Chapter 19: SAARs in the Tax Treaty

19.1. Introduction

19.2. Does a tax treaty SAAR exclude the applicability of a domestic SAAR (which applies in the same way as the tax treaty SAAR but is also broader)?.

19.3. Does a tax treaty SAAR exclude the applicability of a domestic GAAR?

19.4. Summary

Part V: Conclusions and Final Remarks

Chapter 20: Conclusions

20.1. Introduction

20.2. Use of domestic legislation to circumvent domestic legislation without benefiting from a tax treaty

20.3. The benefit from the transaction/arrangement follows from the tax treaty

20.3.1. Introduction

20.3.2. Use of domestic legislation as a tool to circumvent tax treaties

20.3.3. Use of a tax treaty as a tool to circumvent domestic legislation

20.4. The relevance of tax treaty GAARs and/or SAARs for the application of domestic anti-avoidance rules

Chapter 21: Final Remarks

21.1. Recommendation to resolve the potential conflict between domestic anti-avoidance rules and tax treaties

21.1.1. Specific provision in the tax treaty regulating the relationship between domestic anti-avoidance rules and the tax treaty

21.1.2. Include a GAAR in the OECD MC and UN MC

21.1.3. Clear statement in the OECD Comm.

Bibliography

Other Titles in the IBFD Doctoral Series.

Notes:

Originally presented as the author's thesis (doctoral)--University of Oslo, 2016.

Includes bibliographical references (pages [297]-329).

Description based on print version record.

Description based on publisher supplied metadata and other sources.

ISBN:

90-8722-480-X

OCLC:

1122616892