Intertax最新文献

{"title":"Literature Review: Taxing Profit in a Global Economy, Michael P. Devereux, Alan J. Auerbach, Michael Keen, Paul Oosterhuis, Wolfgang Schön, and John Vella (editors). Oxford University Press. 2020.","authors":"D. Weisbach","doi":"10.54648/taxi2023046","DOIUrl":"https://doi.org/10.54648/taxi2023046","url":null,"abstract":"","PeriodicalId":45365,"journal":{"name":"Intertax","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41542145","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Comparing Comparability: A Study of EU, ISDS, and WTO Tax ‘Like’ Cases","authors":"S. Castagna","doi":"10.54648/taxi2023045","DOIUrl":"https://doi.org/10.54648/taxi2023045","url":null,"abstract":"This article addresses the fundamental element of non-discrimination provisions, i.e., the comparability analysis. Comparisons of treatment between different persons, goods, services, and capital that are present within a specific market are necessary to ensure a level playing field for competition within a globalized world. Comparability analyses are often the deciding factor of cases, and thus a thorough understanding of how they work is essential for practitioners and academics alike. This kind of test is present within several types of international treaties and is often the subject of intense debate and discussion within case law. This is in spite of the fact that there are few cases in which comparability is assumed without any type of analysis whatsoever. This work performs a comparative analysis of comparability analyses throughout the different international regimens of the European Union, Investor-State Dispute System (ISDS), and World Trade Organization (WTO) within the context of tax disputes. For each, it considers the peculiarities of the system, analysing case law, and proposes a way to further the fairness and specificity of comparability analysis. It also proposes the possible implementation of a different comparability analysis based on the impact on value created by companies from a given measure.\u0000Comparability analyses, EU, WTO, ISDS, ROIC, transfer pricing, international taxation, dispute resolution, litigation, likeness.","PeriodicalId":45365,"journal":{"name":"Intertax","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43232850","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Case Law Trend: Foreign Permanent Establishment Losses Under the Fundamental Freedoms: Does W AG Bring an End to a Rollercoaster Ride?","authors":"R. Szudoczky","doi":"10.54648/taxi2023038","DOIUrl":"https://doi.org/10.54648/taxi2023038","url":null,"abstract":"The article discusses the W AG case and the Court of Justice’s (the Court) previous cases on the cross-border deduction of foreign permanent establishment (PE) losses. The inconsistency of the case law is highlighted by demonstrating first the conflicts that remain in the case law regarding the status of final PE losses in the enterprise’s residence state, second, by the arbitrary use of comparability criteria by the Court when comparing the situation of domestic and foreign PEs. The article examines the consequences of the W AG decision with regard to the remaining questions on foreign PE losses, the potential impact on foreign subsidiary losses, and the damaging effect of the inconsistency of the Court’s methodology on the quality of its case law.\u0000EU fundamental freedoms, CJEU case law, foreign losses, permanent establishment losses, final losses, exemption method, unilateral exemption, exemption under tax treaty","PeriodicalId":45365,"journal":{"name":"Intertax","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42213487","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Editorial: The Twilight Of Bilateralism","authors":"Luís Eduardo Schoueri","doi":"10.54648/taxi2023035","DOIUrl":"https://doi.org/10.54648/taxi2023035","url":null,"abstract":"","PeriodicalId":45365,"journal":{"name":"Intertax","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46574715","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Tax In History: The 1923 Report and the International Tax Revolution","authors":"R. Avi-Yonah","doi":"10.54648/taxi2023039","DOIUrl":"https://doi.org/10.54648/taxi2023039","url":null,"abstract":"The centennial of the four economists’ Report on Double Taxation (1923) (League of Nations, Economic and Financial Commission, Report on Double Taxation Submitted to the Financial Committee by Professors Bruins, Einaudi, Seligman and Sir Josiah Stamp, E.F.S.73. F.19 (League of Nations 1923) (the Report).) provides a good opportunity to reflect on the extent the international tax regime (ITR) that was founded on the Report has changed in the past decade. While on the surface the changes brought about by the Base Erosion and Profit Shifting (BEPS) project seem radical enough to consider them an ‘international tax revolution’, this article will argue that the principles developed in the Report are still influential a hundred years later.\u0000League of Nations 1923 report, double taxation, BEPS, Pillar One, Pillar Two, Edwin Seligman","PeriodicalId":45365,"journal":{"name":"Intertax","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41597419","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Multilateral Instrument in Africa: A Strategic Analysis","authors":"Rachna Matabudul","doi":"10.54648/taxi2023036","DOIUrl":"https://doi.org/10.54648/taxi2023036","url":null,"abstract":"The Multilateral Instrument (MLI) was launched under Action 15 of the Base Erosion and Profit Shifting (BEPS) Project in November 2016 under the joint collaboration of the Organization for Economic Cooperation and Development (OECD) and the G20 in order to update existing bilateral tax treaty provisions to counter BEPS more effectively. Despite the benefits that the MLI presents for updating the African treaty network, the analysis in this contribution reveals that its provisions addressing certain high priority BEPS issues such as the artifical avoidance of permanent establishment (PE) status under Action 7 and even the minimum standard provisions under Action 14 for improving the mutual agreement procedure (MAP) were implemented rather poorly in less than 40% of the eligible African treaties. The exception to this are the minimum standard provisions under Action 6 that modified more than 75% of the treaties to counter treaty shopping. This paper elaborates on the resulting policy implications and offers a number of normative recommendations for maximizing the benefits of the MLI implementation in the African context which could also be relevant in light of the proposed Pillar Two reform.\u0000Multilateral Instrument (MLI) implementation, BEPS in Africa, policy implications, developing countries, capacity building, Pillar Two, STTR","PeriodicalId":45365,"journal":{"name":"Intertax","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42583636","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Taxation of ‘Digital Nomads’ and the ‘3 W’s’: Between Tax Challenges and Heavenly Beaches","authors":"Leonardo Thomaz Pignatari","doi":"10.54648/taxi2023033","DOIUrl":"https://doi.org/10.54648/taxi2023033","url":null,"abstract":"Work mobility is not something new, but it certainly received an important boost with the COVID-19 pandemic as many people began working remotely which reflected on their lifestyle. In this context, the objective of the present study is to analyse the challenges imposed by what is known as ‘digital nomads’ from the exclusive perspective of individual taxation. The first part aims to understand the first ‘W’, i.e., who the ‘digital nomads’ are and the factors that favour the choice for this type of work. Subsequently, it examines the impacts caused by the ‘digital nomadism’ in determining the tax residence (second ‘W’ – where) and presents the measures, albeit incipient and indistinguishable, adopted by some countries in relation to this phenomenon. The third section delves into the taxation of income obtained by ‘digital nomads’ through either an employment relationship or the provision of services (third ‘W’ – what). Based on the analysis of examples and the presentation of some alternatives, this study seeks to demonstrate the need to adapt the tax residence rules at both of the levels of domestic law and double tax treaties (tiebreaker rules). The rules on the taxation of income from employment and the provision of independent services also demand modifications that detach them from the strict need for a physical presence.\u0000Digital nomads’, work mobility, international taxation, tax residence, employment income, digital economy","PeriodicalId":45365,"journal":{"name":"Intertax","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44545326","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Disaggregation of Financial Instruments in International Tax Law","authors":"J. Weissbrodt","doi":"10.54648/taxi2023037","DOIUrl":"https://doi.org/10.54648/taxi2023037","url":null,"abstract":"Disaggregation is the technique of decomposing a facts pattern into components and their separate legal subsumption. As a pre-step to prepare a legal case, it is an all too practical problem and therefore seems to be rather neglected in the high art of jurisprudence. This contrasts with the great importance of the substance over form doctrine in legal practice, being a universal and timeless issue in all fields of law dealing with economic subjects and in all jurisdictions. At the example of financial instruments as the ‘burning lens’ of tax law and the OECD Model Tax Convention (OECDMTC) as the ‘tax system for tax systems’, this article contributes a discussion base for a methodologically supported concept to disaggregation. Inspired by U.S. federal tax policy, finance theory and International Financial Reporting Standards (IFRS), the author takes the liberty of a progressive and unconventional approach. Its centrepiece is an iterative process of identifying, decomposing, and eliminating economic risk types utilizing findings from portfolio theory and option pricing.\u0000Disaggregation, bifurcation, fragmentation, unbundling, disassembly, decomposition, OECD Model Tax Convention, financial instrument, substance over form, look-through.","PeriodicalId":45365,"journal":{"name":"Intertax","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71283963","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Enterprise Foundations as ‘Non-profit Organizations’ Under the EU Pillar Two Directive","authors":"Mark Ørberg, Louise Blichfeldt Fjord","doi":"10.54648/taxi2023048","DOIUrl":"https://doi.org/10.54648/taxi2023048","url":null,"abstract":"The authors explore the highly debated 15% minimum corporate tax rate better known as Pillar Two. More specifically, the focus is on ‘public good enterprise foundations’ and the potential applicability of the ‘non-profit organization’ definition in the EU Pillar Two Directive (2022/ 2523) from December 2022. A public good enterprise foundation typically controls one or more operating enterprises but can only distribute income to the public good purposes stipulated in the foundation charter. This ‘distribution restraint’ is supplemented by a ‘disbursement duty’ as the governing board must make distributions to the foundation’s public good purposes. In some instances, the founder has – in addition to one or more public good purposes – explicitly stipulated ownership of (specific) operating entities for the purpose of raising funds for the public good purposes in the charter. Consequently, whereas corporations make profit for their owners, the public good enterprise foundation’s purpose is not to operate for profit-making but instead to operate for promotion of the public good purpose in the foundation charter.\u0000Illustrated by Danish public good enterprise foundations (DK: Erhvervsdrivende fonde), it is analysed whether public good enterprise foundations in Europe should be considered as ‘non-profit organizations’ excluded from the EU Pillar Two Directive despite owning (controlling) interests in operating entities that are conducting commercial business. The impact is significant as this would exclude the income and tax of the public good enterprise foundations (and their holding companies) when calculating the jurisdictional effective tax rate of the group and prevent the application of the income inclusion rule and the under taxed payment rule on their income. While self-owned foundations may be unfamiliar in some Member States, it will have significant impact on other Member States such as Denmark where some of the largest businesses (e.g., Maersk, Novo Nordisk, Carlsberg, and Lundbeck) are owned by such public good enterprise foundations. The authors argue they should be considered as non-profit organizations and therefore excluded entities under the Directive.\u0000Non-profit definition, International tax law, EU tax law, Pillar II, EU Directive 2022/2523, Enterprise foundations, Industrial foundations, Foundation purpose, Foundation objective","PeriodicalId":45365,"journal":{"name":"Intertax","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46089334","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Literature Review: The Legal Status of Extrinsic Instruments for the Interpretation of Tax Treaties, J. Bossuyt. I edition. Amsterdam:IBFD. 2022","authors":"P. Arginelli","doi":"10.54648/taxi2023044","DOIUrl":"https://doi.org/10.54648/taxi2023044","url":null,"abstract":"","PeriodicalId":45365,"journal":{"name":"Intertax","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44543255","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}