Building Global International Tax Law Essays in Honour of Guglielmo Maisto.

Format:

Book

Author/Creator:

Pistone, Pasquale.

Language:

English

Subjects (All):

Maisto, Guglielmo.

Taxation--Law and legislation.

Taxation.

Trusts and trustees--Taxation--law and legislations.

Trusts and trustees.

Conflict of laws--Taxation.

Conflict of laws.

Double taxation--Treaties.

Double taxation.

Taxation--law and legislations--European Union countries.

Physical Description:

1 online resource (713 pages)

Edition:

1st ed.

Place of Publication:

Amsterdam : IBFD Publications USA, Incorporated, 2022.

Summary:

The ongoing global tax governance is bringing international tax law to unprecedented levels of coordination, backed up by technical consultations with stakeholders. This book in honour of Guglielmo Maisto is the outcome of a theoretical and practical research project involving all its contributors, which rank among the most authoritative experts of international tax law.

Contents:

Cover

Title

Guglielmo Maisto

Copyright

Table of Contents

Preface

Part 1: Model Tax Conventions

Section 1: Treaty Interpretation and General Issues

Chapter 1: An "International Tax Language" for Tax Treaty Interpretation: Its Histories in Common and Civil Law Discourse

1.1. Introduction

1.2. Mitchell B. Carroll, the models of the League of Nations (1928 to 1933) and the first income tax treaty of the United States

1.3. The classical period of judicial dialogue about international tax language in common law jurisdictions (1946-1990)

1.3.1. Kimball v. Commissioner, United States Tax Court (1946)

1.3.2. Ostime (Inspector of Taxes) v. Australian Mutual Provident Society, United Kingdom House of Lords (1959)

1.3.3. Commissioner of Taxes v. Aktiebolaget Tetra Pak, Appellate Division of the High Court of Rhodesia (1966)

1.3.4. Secretary for Inland Revenue v. Downing, Appellate Division of the Supreme Court of South Africa (1975)

1.3.5. Thiel v. Federal Commissioner of Taxation, High Court of Australia (1990)

1.4. The fusing of international tax language with wider debates about tax treaties

1.4.1. Common interpretation

1.4.2. The public international law framework for tax treaty interpretation

1.4.3. The beneficial owner requirement for tax treaty benefits

1.4.4. Monolingualism

1.5. Regional tax law

1.6. A second period of judicial dialogue, and silence

Chapter 2: Current Issues in the Use of OECD and UN Commentaries in Tax Treaty Interpretation

2.1. Introduction

2.2. Later commentaries

2.3. UN Commentary

2.4. Reservations and observations

2.5. Executive deference?

2.6. Concluding remarks

Chapter 3: The Localization of Tax Treaty Interpretation

3.1. Introduction

3.2. Tax treaty interpretation and the doctrine of precedent.

3.3. Evidence for the meta-process of establishing an approach to tax treaty interpretation

3.4. What if the national approach is wrong?

3.5. What can be done about the localization of the approaches to tax treaty interpretation?

Section 2: Allocation Rules

Chapter 4: The Scope of Tax Treaties for Tax-Exempt Entities

4.1. Introduction

4.2. Can a tax-exempt entity invoke the distributive rules of tax treaties?

4.3. Can a tax-exempt entity which, for this reason, cannot be regarded as a resident under article 4(1), invoke the non-discrimination clause?

4.4. Conclusion

Chapter 5: Trusts as Collective Investment Vehicles

5.1. Introduction

5.2. Trusts in India

5.3. Evolution of trusts and their use as CIVs

5.4. Types of trusts

5.5. Taxation of trusts in India: An overview

5.5.1. Private trusts

5.6. History of CIVs in India

5.7. Trust as a CIV

5.8. Tax regimes and use of trust structures for CIVs

5.9. Mutual funds

5.9.1. Taxation of mutual funds

5.10. Venture capital funds (VCFs)

5.10.1. Taxation of VCFs

5.11. AIFs

5.11.1. Taxation of AIFs

5.12. REITs and InvITs (together referred to as business trusts)

5.12.1. Taxation of business trusts

5.13. Treaty eligibility for CIVs: Fiscally transparent entities?

5.14. OECD CIV Report

5.15. Substance in CIVs

5.16. Conclusion

Chapter 6: International Taxation of Trusts after the BEPS Project and MLI Provisions

6.1. Introduction

6.2. Tax treaty entitlement of trusts

6.3. The Partnership Report

6.4. BEPS Project Action 2: Neutralizing the Effects of Hybrid Mismatch Arrangements

6.5. Scope and effectiveness of the transparent entity clause in relation to trusts

6.5.1. Potentially unresolved cases of double non-taxation

6.5.2. The interactions between article 1(2) and other attributive rules.

6.5.3. Is favouring the position of the state of residence really justified?

6.6. Article 1(3): The saving clause

6.7. Other topics of interest

6.8. Conclusion

Chapter 7: The Tax Treaty Treatment of Software Payments

7.1. Introduction

7.2. The discussion at the United Nations Committee of Experts on International Cooperation in Tax Matters

7.3. The Indian Supreme Court decision in Engineering Analysis Centre of Excellence Pvt. Ltd v. CIT &amp

ANR

7.4. Conclusion

Chapter 8: The Faltering Legitimacy of the Place of Physical Presence as a Tax Nexus for Active Income

8.1. Introduction

8.2. The need for international tax coordination on the place of exercise of activity

8.3. The place of exercise of employment for remote workers

8.4. The implications of remote working for the taxation of business profits

8.5. The remote exercise of activity for entertainers and sportspersons

8.6. The need for a change in the place of exercise of the activity as a tax nexus for active income

Chapter 9: Employment Income under Tax Treaty Law and the Impact of the COVID-19 Pandemic

9.1. Extraordinary times require extraordinary measures?

9.2. Income of cross-border workers that cannot perform their work due to COVID-19 restrictions (e.g. wage subsidies for employers)

9.3. Stranded worker: Exceeding days-of-presence threshold due to travel restrictions

9.4. Special provisions in some bilateral treaties that deal with the situation of cross-border workers

9.5. Teleworking from abroad, i.e. working remotely from one jurisdiction for an employer in another jurisdiction

9.6. Concluding summary

Chapter 10: Individuals: The Forgotten Taxpayers ina BEPS Scenario

10.1. Introduction

10.2. Residence of individuals

10.2.1. The concept of residence for tax treaty purposes.

10.2.2. Residence and worldwide taxation

10.3. Relocation of individuals

10.3.1. Transfer of residence and BEPS effects

10.3.2. Transfer of residence and allocation of taxing rights

10.4. Conclusion

Section 3: Other Model Tax Treaty Clauses

Chapter 11: Permissible Limitations on Foreign Tax Credit Relief in Bilateral Income Tax Treaties

11.1. Introduction

11.2. Common touchpoints of articles 23A and 23B

11.3. The challenges posed by credit systems and reference to domestic law

11.3.1. General comments

11.3.2. Addressing conflicts of source of income

11.3.3. Design features

11.3.4. Quantitative restriction

11.3.4.1. Alternative minimum tax decisions

11.3.4.2. Base erosion and anti-abuse tax

11.3.4.3. Global intangible low-taxed income

11.3.5. Separate levies

11.3.5.1. Net investment income tax

11.3.5.2. Base erosion and anti-abuse tax

11.3.6. Definitional concepts: "Income tax"

11.3.6.1. General

11.3.6.2. Modification of net gain requirement

11.3.6.3. New attribution (jurisdictional) rule

11.3.6.4. Credit for "in lieu of" taxes

11.3.6.5. Rationale for net gain revisions and attribution requirement

11.3.6.6. Relevance for double taxation relief articles of treaties

11.4. Conclusion

Chapter 12: The Role of "Commercial Reasons" and "Economic Reality" in the Principal Purpose Test under Article 29(9) of the 2017 OECD Model

12.1. Introduction

12.2. The structure of article 29(9) of the OECD Model (and any GAAR)

12.2.1. The dual nature of GAARs: The "teleological element" and the threshold

12.2.2. Is a treaty GAAR needed, and what is its effect?

12.2.3. The role of "motives" in the application of the GAAR

12.2.3.1. "Subjective elements" under tax law

12.2.3.2. The tax motive and the threshold of a GAAR.

12.2.3.3. Commercial reasons and the "object and purpose" of a treaty provision

12.2.3.4. Economic reality, economic substance and economic activity

12.3. The PPT

12.3.1. Objective and subjective elements of the first prong

12.3.2. Principal and ancillary purposes

12.4. The "object and purpose of the relevant provisions"

12.4.1. General and specific purposes of tax treaties and provisions

12.4.2. General purposes of tax treaty provisions

12.4.2.1. Eliminating double taxation and (double) non-taxation

12.4.2.2. Enhancing economic relationships

12.4.2.3. Specific purposes of tax treaty provisions

12.4.2.4. Commercial reasons, economic reality and the object and purpose of the relevant treaty provisions

12.5. Burden of proof

12.6. Conclusion

Part 2: Bilateral Tax Treaties and National Law

Section 1: Bilateral Tax Treaties

Chapter 13: A History of Brazilian Tax Treaty Policy

13.1. Introduction

13.1.1. Background of Brazilian tax treaties

13.2. First Brazilian tax treaties

13.3. Stages and goals of Brazilian tax treaty policy

13.4. Brazilian treaties recently concluded: The influence of the BEPS Project

13.5. Intercountry influence

13.6. Impact on and of international institutions and organizations

Chapter 14: Selected Issues from the Six Treaties Concluded by the Netherlands between 1948 and 1952

14.1. Introduction

14.1.1. The 1954 J.B.J. Peeters treatise on international tax law in the Netherlands

14.1.2. Six Dutch treaties concluded between 1948 and 1952

14.2. Other income

14.2.1. Location of the "residual income" rule

14.2.2. Effect of an upfront principal distributive rule

14.2.3. Sample texts for an upfront principal distributive rule

14.2.4. Effect of an upfront principal distributive rule

14.2.5. Advantages of an upfront principal distributive rule.

14.3. Structure.

Notes:

Description based on publisher supplied metadata and other sources.

Other Format:

Print version: Pistone, Pasquale Building Global International Tax Law Essays in Honour of Guglielmo Maisto

ISBN:

9789087227821

9087227825

OCLC:

1346368266