Tax Treaty Case Law around the Globe 2017 (eBook)

Preface 5
List of Contributors 7
Contents 15
Personal and Substantive Scope (Art 1, 2 and 4 OECD Model) 19
Germany: Consequences of a Treaty Override? 20
Australia: Puppet Boards – Where is Central Management and Control Exercised and Where is the Place of Effective Management? 30
Sweden: Non-taxable Collective Investment Vehicles Determined Resident under Sweden-Spain Income Tax Treaty 39
United States: Abandonment of Residence Status 46
Business profits and permanent establishments (Art 5, 6, 7, 8 and 14 OECD Model) 52
Finland: Allocation of Subsidiary Share Related Loans to a PE 53
Japan: The Procedural Requirements for Applying a Treaty and Determination of a Permanent Establishment for an Online Sales Business 59
Poland: Can a Tax Authority Change the Qualification of Items of Income of a Taxpayer as a Resultof a Double Taxation Convention Providing for Qualification in Accordance with Domestic Tax Law? 67
Portugal: Domestic Losses and Worldwide Gross Income 76
Belgium: Transparent Entities: The Case of the French SCI under the Belgium-French Tax Treaty 82
Associated Enterprises (Art 9 OECD Model) 94
India: If there is a Transaction between Associated Enterprises, ALP Adjustment has to be made and the Contention that there will be overall Erosion of the Indian Tax Base is not relevant 95
United States: Narrow ALS Analysis 111
United States: It is Permissible to Apply the ALS on a Consolidated Basis 119
Dividend and interest (Art 10 and Art 11 OECD Model) 124
Argentina: Treaty Abuse and Beneficial Ownership – the Molinos Case 125
Czech Republic: Application of the Abuse of Law Concept in Business Restructuring 141
Poland: Can a Leader in a Cash Pooling System be Recognized as the Beneficial Owner of the Interest in the Meaning of Tax Treaty Law? 148
Spain: Dividends, Leveraged Buyouts and the Concept of Abuse / Simulation in Domestic Law, EU Law and Tax Treaties 157
Brazil: Taxation of Controlled Foreign Companies in Brazil – Still a Case for Article 7 179
Italy: The Concept of Beneficial Ownership in Tax Treaties and its General Anti-Avoidance Function 193
Royalties and Capital Gains (Art 12 and 13 OECD Model) 203
Bulgaria: Procedural Requirements for Tax Treaty Relief: a “Penalty” for Tax Treaty Application 204
Australia: Limitations on applying the royalties Article in a digital era 216
Kazakhstan: Kazmunaiservices & Contracting Case on Technical Services and the MFN Clause
Estonia: Dalkia International S.A. 241
Turkey: Characterization of Cost Contribution Agreement Fees 253
Employment Income (Art 15, 18 and 19 OECD Model) 265
China: Employment Income Received from Outside of China (Article 15 of the OECD Model) 266
Luxembourg: Taxation of Flight Personnel in Triangular Situations and Article 15(3) of theOECD Model 275
United Kingdom: Do the Activities of an Employed North Sea Diver Fall within Article 7 or 14 of the UK-South Africa Tax Treaty? 283
Netherlands: The Impact on Tax Treaties of a Legal Fiction included in National Tax Law (the “customary wage rule”) 288
Directors’ fees, Artistes and Sportsmen, Students and Other Income, Methods to Avoid Double Taxation (Art 16, 17, 20, 21 and Art 23 OECD Model Convention) 316
Portugal: Artistes’ and Sportsmen’s Income 317
Sweden: Taxation of Income from Entertainment and Sporting Activities 326
Canada: Limitation on Elimination of Double Taxation under the Canada-Brazil Income Tax Treaty 333
Norway: The Remittance Rule in the Tax Treaty between Norway and Singapore 343
Israel: The Relationship between Domestic Law and the Tax Treaty in the Interpretation of the Relief from Double Taxation Article 351
Non-discrimination, mutual agreement and mutual assistance (Art 24–27 OECD Model Convention) 359
India: Non-Discrimination Clause Extends Exemption from Capital Gains in case of Foreign Amalgamation involving Indian Assets 360
United States: Assistance in the Collection of Taxes 371
Canada: Judicial Review of the Canada Revenue Agency’s Response in a Mutual Agreement Procedure under the Canada-United States Tax Treaty 376
Switzerland: Demarcation between an Acceptable Group Request and an Unacceptable “Fishing Expedition” 385
Russia: Thin Capitalization, Recharacterization of Interest as Dividends and the Non-Discrimination Article 395
Series on International Tax Law 412