Tax Treaty Case Law Around the Globe - 9041138765 - 9789041138767

Photo of the title: Tax Treaty Case Law Around the Globe - 9041138765 - 9789041138767

Edited by: Michael Lang, Pasquale Pistone, Josef Schuch, Claus Staringer, Alfred Storck, Luc De Broe, Peter Essers, Eric CCM Kemmeren, F.J.G.M. Vanistendael
January 2012, ISBN 9041138765
ISBN 13: 9789041138767
520 pp. Hardcover

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Although tax treaties may look similar because they are usually based on model tax conventions, clear differences in interpretation and application become evident in the diversity of court decisions on tax treaty issues worldwide. In this book, outstanding experts from over thirty jurisdictions discuss the most relevant recent court decisions taken in their countries. The contributions, focusing on the potential impact of the judgments on the interpretation and application of tax treaties in other countries, cover such important aspects as the following:

residence requirements;
cross-border partnerships;
characterization of interest payments;
transfer pricing;
royalties;
directors’ fees;
artistes’ and sportsmen’s income;
students’ income; and ;
compensation of losses.

Each discussion gives the facts of each case (many of the cases are not accessible in English), the reasoning of the court, and the author’s observations. The systematic structure of each report allows different tax treaty case law to be studied and compared in a simple and efficient way – something that has never been done this comprehensively before. With the continuously increasing importance of tax treaties, this global overview of international tax disputes on double tax conventions is a valuable resource for practitioners and academics active in tax treaty case law. It will also be of value for multinational businesses, policymakers, and tax administrations as a source of alternative approaches and best practice models.

Contents Preface Contents 1. Personal and substantive scope (Art 1, 2 and 4 OECD Model) David G. Duff Canada: Tax Treaty Interpretation and the Residence of a Hybrid Entity Aurelian Opre/Romana Schuster Romania: Form and Substance Requirements to Be Met by a Tax Residence Certificate Daniel Deák Hungary: Does the Hungarian Local Trade Tax Fall within the Substantive Scope of a DTC? Eric C.C.M. Kemmeren Netherlands: How to Prove Residence of the Other Contracting State for Tax Treaty Purposes? Gustavo Lopes Courinha Portugal: Deemed Residence – The Case of Households in the Light of Article 4(1) OECD MC Jürgen Lüdicke Germany: Florida LLC 2. Permanent Establishments (Art 5 OECD Model) Stéphane Gelin France: Conseil d’Etat, Zimmer Ltd – French Commissionaire and PE under the France UK DTC J. Clifton Fleming, Jr. A Note on the Zimmer Case and the Concept of Permanent Establishment Pasquale Pistone Italy: Construction and Dependent Agency PE Jennifer Roeleveld South Africa: Cross Border Partnerships Billur Yalti Turkey: The Permanent Establishment Issue in Case of Movable Place of Business 3. Business profits (Art 7 OECD Model) Luís Eduardo Schoueri Brazil: The Qualification of Income Derived from Technical Services Wei Cui China: A New (Furtive) Approach to Taxing International Transportation Income Steffen Lampert Germany: Characterization of Interest Payments Derived through a Deemed US Trading Partnership Katerina Perrou Greece: The Calculation of the Profits that are Attributable to a PE Billur Yalti Turkey: Business Profits v. Professional Income 4. Transfer Pricing (Art 9 OECD Model) Richard Krever/Jiaying Zhang Australia: Resolving the Application of Competing Treaty and Domestic Law Transfer Pricing Rules Marjaana Helminen Finland: Determining the Arm’s Length Interest Rate of an Intra-Group Loan Elena Variychuk Russia: Can Intra-Group Service Arrangements and Cost-Contribution Agreements Work in Russia? Yariv Brauner USA: Xilinx Inc. Et al. v. Commissioner 5. Dividend, interest, royalties, capital gains (Art 10, 11, 12 and 13 OECD Model) Danuše Nerudová Czech Republic: Afs 106/2009-112 Helen Pahapill Estonia: ImmoEast Beteiligungs GmbH D. P. Sengupta India: Vodafone Hanna Litwinczuk Poland: Payments for Copyrights of Computer Software as Royalties Bertil Wiman Sweden: Trailing Taxes and CFC Rules vs Tax Treaties Adolfo Martín Jiménez Spain: Beneficial Ownership and the Judical Interpretation of the Spanish Anti-Abuse Clause of the Parent-Subsidiary Directive 6. Employment income (Art 15, 18 and 19 OECD Model), Directors’ fees, artistes and sportsmen, students and other income (Art 16, 17, 20, 21 OECD Model Convention) Søren Friis Hansen Denmark: The Definition of a ‘Hired Worker’ in Article 14 Denmark Netherlands DTC Eric C.C.M. Kemmeren The Netherlands: Is a Football Player’s Transfer Fee Income Derived As a Sportsman? D. P. Sengupta India: Wizcraft International Adolfo Martín Jiménez Spain: Taxation of Artistes and Sportsmen – U2’s Tour in 1997 7. Methods to avoid double taxation (Art 23 OECD Model) Michael Lang Austria: Exemption Method and Progression Bernard Peeters Belgium: Foreign Tax Credit Rules in the Case of Differing Income Characterization Steffen Lampert Germany: The Compensation of Losses Incurred in a PE within the EU Romana Schuster/Aurelian Opre Romania: Credit Relief for Withholding Tax on Payments of Interest Carried by Promissory Notes Patricia A. Brown/Jason T. Young USA: Savary v. Commissioner of Internal Revenue – The Source of Double Taxation Yariv Brauner USA: The Procter & Gamble Company and Subsidiaries v. United States 8. Non-discrimination, mutual agreement and mutual assistance (Art 24, 25, 26 and 27 OECD Model) Philip Baker Great Britain: FCE Bank PLC v Her Majesty’s Revenue And Customs Pasquale Pistone Italy: Domestic Anti-Avoidance Ad Hoc Rules and the Deduction Non-Discrimination Provision in Tax Treaties Shelley Griffiths New Zealand: Information Sharing and Information Gathering and the New Zealand Australia DTC Michael Beusch/Alexander Misic Switzerland: The Case of UBS – Mutual Administrative Assistance in Tax Matters Tomas Balco Kazakhstan: ATF Case List of Authors and Editors.