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INTRODUCTION TO INTERNATIONAL TAX LAW
Dr Roberto Bernales
University of
Deusto (Bilbao, Spain)
Kaliningrad, September 2016
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Introduction to International Tax Law - Agenda
Concept and
goals
Jurisdiction
Double taxation relief
See “International Tax Primer”, B.J. Arnold and M.J.
McIntyre
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Introduction to International Tax Law
CONCEPT AND GOALS
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CONCEPT AND GOALS
“International Tax Law” = misnomer
Scope
All tax
issues arising under a country's tax laws that include a
foreign element
Mainly income tax laws
Other taxes
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CONCEPT & GOALS
International (Income) tax law: two dimensions:
Taxation
of Resident individuals and corporations on income in foreign countries
(taxation of foreign income)
Taxation of Nonresidents on income arising domestically (taxation of nonresidents)
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CONCEPT & GOALS
Issues under income tax laws:
Cross-border trade
in goods and services
Cross-border manufacturing by MNE
Cross-border investment by individuals
or investment funds
Taxation of individuals who work or do business in a country other than their residence country
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CONCEPT & GOALS
International tax law. Scope beyond income
tax:
Estate taxes/ Inheritance taxes
Gift taxes
Wealth taxes
Sales taxes
Customs taxes
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CONCEPT & GOALS
GOALS:
Inter-nation equity
Promoting fairness
Enhancing the position of
the country in the world economy
Capital-export and capital-import neutrality
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CONCEPT & GOALS
Practical issues faced by the professional:
Intersection
domestic-foreign tax law
Differences in the legal systems: concepts, institutions, legal
traditions, accounting principles, etc.
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Introduction to International Tax Law
JURISDICTION TO TAX
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JURISDICTION TO TAX
Residence – Source
Residence
Individuals
Legal entities
Treaty issues
Source
Employment and
Personal Services
Business income
Investment income
Capital gains
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JURISDICTION TO TAX
Nexus country - person obtaining the
income: residence jurisdiction
Nexus country – activities generating the income: source
jurisdiction
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JURISDICTION TO TAX - Residence
Residence of Individuals
Facts and
circumstances. Objective manifestations of joining the economic and social life
of a country:
Dwelling
Income producing activities
Family
Social ties
Arbitrary test: number of days of presence, e.g. 183-day test
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Residence of Individuals (II)
Facts and circumstances + objective
tests = presumptions to establish residence = certainty and fairness
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Residence of Individuals (III)
Presumptions:
Individuals present in a
country for 183 days in a taxable year unless they
do not have a dwelling and are not citizens
Individuals having a dwelling unless they also have a dwelling in another country
Citizens unless they have a dwelling abroad and are outside more than 183 days
Individuals cannot relinquish residence until residence in another country
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Residence of legal entities
Corporations:
Place of Incorporation
Place of (Effective)
Management
Residence of the shareholders
Other legal entities:
Place of organization
Place of management
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Treaty issues
Art. 4(1) OECD MC:
(…) the term resident
of a Contracting state means any person who, under the
laws of that State, is liable to tax therein by reasons of his domicile, residence, place of management or any other criterion of a similar nature (…)
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Treaty issues
Art. 4(2) OECD MC Tie-breaker rules:
Place of
permanent home
Centre of the vital interests
Habitual abode
Citizenship
MAP
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Residence of legal entities
Art. 4(3) OECD MC: Legal
entities residence: POEM.
Other tie-breaker rules:
Place of Incorporation
Dual resident =
not resident in either country
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Слайд 20JURISDICTION TO TAX – Source
International custom:
A country has the
primary right to tax income that has its source in
that country
Country of residence expected to provide relief from double taxation if its residence jurisdiction overlaps the source jurisdiction of another country
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Слайд 21JURISDICTION TO TAX – Source
What is “source”?
Most countries: vague
rules (especially for business income)
Most tax treaties do not include
explicit source rules for business income
OECD MC vs UN MC: limitation of source jurisdiction
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Employment and Personal Services
Source country
= where services are performed
If several countries = allocation based
on the time performing in each country
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Слайд 23JURISDICTION TO TAX - Source
Employment and Personal Services (II)
Limit of
source jurisdiction on dependent personal services income if (all requirements
met):
Employee present in SC ≤ 183 days
Payment by a non-resident
Payment not allocated to a PE in SC
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Business Income
OECD and UN MC:
taxable only if attributable to a PE
US MC: Source rule
approach
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Investment Income
Investment income (dividends, interest, royalties)
derived by non-residents usually taxable through WHT
Capital gains are not
usually subject to WHT
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Investment Income (II). Source rules:
Dividends and
Interests: country of residence of the payer (Arts. 10 and
11 OECD and UN MC)
Royalties: where royalties arise = typically the country providing legal protection
OECD MC: exclusive rights to residence country. No source rules
UN MC: shared taxing rights. SC = resident country of the payer (or PE)
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Investment Income (III).
Shared taxing rights
between RC and SC = limited WHT in the SC
DTTs
with Zero WHT
Assumptions:
Equal flow of investments
Tax jurisdiction of SC will be exercised by RC
Advantages and Disadvantages
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Capital gains
OECD MC: SC the residence
country of the seller. Exception
Business property
Immovable property
UN MC: Gains for
sales not specifically mentioned in the treaty maybe taxed in RC and in SC
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Слайд 29Introduction to International Tax Law
DOUBLE TAXATION RELIEF
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Слайд 30DOUBLE TAXATION RELIEF – Concept & Types
International (Juridical) Double Taxation:
The
imposition of comparable direct taxes (income-wealth-inheritance) taxes
by two or
more sovereign countries
on the same item (income-assets)
of the same taxable person
for the same taxable period
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Слайд 31DOUBLE TAXATION RELIEF
(International) Economic Double Taxation:
Multiple taxation of the same
items of economic income in different taxpayers, e.g.
Company –
Shareholder:
Parent company
Individual shareholder
Partnership – Partner
Trust - Beneficiary
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Слайд 32DOUBLE TAXATION RELIEF
Three types of double taxation in relation to
3 types of conflicts:
Source – Source
Residence – Residence
Residence – Source
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Слайд 33DOUBLE TAXATION RELIEF
Other types of conflicts:
Definitions of Income
Timing and tax
accounting rules
Arm´s Length Prices
Rules to prevent tax avoidance
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Слайд 34DOUBLE TAXATION RELIEF
Remedies to prevent double taxation:
Unilateral
Bilateral
Multilateral
The methods for relieving
international taxation refer both to juridical and economic double taxation
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Слайд 35DOUBLE TAXATION RELIEF - METHODS
Relief mechanisms (Methods):
Deduction
Exemption
Credit (Imputation)
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Слайд 36DOUBLE TAXATION RELIEF
DEDUCTION Method
Taxation on the worldwide income of residents
and deduction of the foreign taxes paid from the taxable
income
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DEDUCTION Method (II)
Effect: Residents earning foreign income and
paying foreign income taxes are taxed at a higher combined
tax rate than the rate applied to domestic-source income
Favourable for domestic investment
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Слайд 38DOUBLE TAXATION RELIEF
EXEMPTION Method
Taxation of residents on their domestic income
and exemption of their foreign-source income
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Слайд 39DOUBLE TAXATION RELIEF
EXEMPTION Method (II). Effects:
Elimination of Residence – Source
DT
Exemption of all foreign-source income = Taxation on territorial basis
Exemption
of certain kinds of income (e.g. business income, investment income)
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Слайд 40DOUBLE TAXATION RELIEF
EXEMPTION Method (III). Types:
Ordinary Exemption
Exemption with progression
Full
Exemption
Partial Exemption
Participation exemption
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Слайд 41DOUBLE TAXATION RELIEF
EXEMPTION Method (IV):
Ordinary Exemption
Exemption with progression
Foreign source
income included to determine average tax rate on taxable (domestic)
income
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EXEMPTION Method (V):
Full Exemption
Partial Exemption: exemption of foreign-source
income taxed at rates comparable to the country of residence
rate
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EXEMPTION Method (VI)
Partial exemption. Requirements of the method:
Source
income and expenses rules
Anti-avoidance rules
Expense allocation rules
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Слайд 44DOUBLE TAXATION RELIEF
EXEMPTION Method (VII)
Participation exemption
Exemption of dividends derived from
foreign companies in which the resident shareholder have a minimum
ownership interest
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Слайд 45DOUBLE TAXATION RELIEF
EXEMPTION Method (VIII). Drawback
Shifting of tax burden from
the income earner to the income payer in some circumstances
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Слайд 46DOUBLE TAXATION RELIEF
CREDIT Method
Foreign taxes paid by residents on foreign
source income reduce the domestic taxes payable on the same
income
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CREDIT Method (II). Effects.
Eliminate residence – source
double taxation
Usually limited to the amount of the domestic tax
payable on the foreign source income (ordinary tax credit)
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CREDIT Method (III). Effects (II)
Resident taxpayers are treated
equally from the perspective of the total (domestic and foreign)
tax burden, except if foreign tax > domestic tax
Neutral respect to place of investment (domestic – abroad)
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Слайд 49DOUBLE TAXATION RELIEF
CREDIT Method (IV). Limitations
Overall (worldwide)
Country-by-country
Item-by-item
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CREDIT Method (V). Indirect (foreign) tax credit =
Credit granted
To a domestic corporation for the foreign income taxes
paid by a foreign affiliated company
When the domestic corporation receives the dividend distributed by its foreign affiliate
Equal to the underlying foreign tax paid by the foreign affiliate on the income out of which the dividend was paid
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Слайд 51DOUBLE TAXATION RELIEF
CREDIT Method (VI).
Possible effect: discouraging repatriate benefits.
Solution?:
Taxation on accrual basis:
CFC rules
Offshore investment fund rules
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Слайд 52DOUBLE TAXATION RELIEF
EXEMPTION vs CREDIT Methods
Both authorized by OECD and
UN MC
Equal results if the foreign taxes paid by the
foreign company (plus WHT) are at least equal to domestic taxes.
Even if foreign taxes < domestic tax, deferment until dividends are paid
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EXEMPTION vs CREDIT Methods (II)
Both systems require rules:
Resident
qualified taxpayers
Type of qualified income
Source of income
Allocation of expenses
CFC
(current or accrual taxation)
Foreign losses
Computation of foreign Co income
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Слайд 54DOUBLE TAXATION RELIEF
EXEMPTION vs CREDIT Methods (III)
Most important difference: requirement
of different rules
Credit: definition of creditable foreign taxes
Exemption: determination when
foreign source income is subject to a level of foreign tax comparable to domestic tax
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