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'Taxation and Property Rights under the European Convention on Human Rights', Rusen Ergec, Issue 1, pp. 2–11 |
infoRusen Ergec, 'Taxation and Property Rights under the European Convention on Human Rights' (2011) 39 Intertax, Issue 1, pp. 2–11 | | Article 1 of Protocol 1 to the European Convention on Human Rights (ECHR) guarantees to every natural or legal person the right to peaceful enjoyment of his possessions. Taxation and enforcement measures relating thereto are considered by the European Court of Human Rights as an interference with the right to property as set out in the preceding provision. The Court has, accordingly, developed a case law reviewing the compatibility of such measures with, among others, the requirements of legality and proportionality. Although the Court grants a wide margin of appreciation to states as to taxation rate, procedural enforcement rules might come under close scrutiny. Other safeguards laid down in the Convention, such as the prohibition of discrimination, might foster the rule of law in issues of taxation. The study purports to underline the often underestimated potentialities of the protection afforded by the European Convention to taxpayers. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011001 | 
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'Anti-abuse Clause or Harmonization?', Thomas Rønfeldt, Issue 1, pp. 12–18 |
infoThomas Rønfeldt, 'Anti-abuse Clause or Harmonization?' (2011) 39 Intertax, Issue 1, pp. 12–18 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011002 |
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'Tax Aspects of a Luxembourg Securitization Company', Frank van Kuijk, Issue 1, pp. 19–25 |
infoFrank van Kuijk, 'Tax Aspects of a Luxembourg Securitization Company' (2011) 39 Intertax, Issue 1, pp. 19–25 | | The law of 22 March 2004 (the Law)1 has introduced an attractive tax and legal framework in Luxembourg for securitization transactions. This article focuses on the Luxembourg income and net wealth tax aspects of the Law and the taxation of domestic corporate investors and foreign corporate and individual investors in securitization entities. The legal and regulatory aspects of the Law will only be explained where relevant for the tax aspects. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011003 |
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'VAT Carousel Fraud: A European Problem from a Dutch Perspective', R.A. Wolf, Issue 1, pp. 26–37 |
infoR.A. Wolf, 'VAT Carousel Fraud: A European Problem from a Dutch Perspective' (2011) 39 Intertax, Issue 1, pp. 26–37 | | The current European Union (EU) value added tax (VAT) system is a breeding ground for carousel fraud. This fraud results in tax losses of several billion euros each year. It also distorts fair competition and may lead to unexpected VAT liabilities. Carousel fraud is triggered by a flaw in the VAT regime, where the right to deduct VAT is not linked to the prior receipt of this VAT by the tax authorities. A customer can deduct VAT, even if its supplier does not pay the VAT to the tax authorities. Tax authorities may thus end up paying back VAT they never received. The author describes the development of carousel fraud and the actions EU countries and EU institutions took to counter the problem and case law of the European Court of Justice (ECJ). He concludes with some recommendations for changes in the current VAT regime. This article is based on the findings of the author in his thesis ‘Carousel Fraud. A European Problem from a Dutch Perspective’ (Rijksuniversiteit Groningen, 2010). Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011004 |
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ISSUE 2 | |
'The Position of the EU Member States’ Associated and Dependent Territories under the Freedom of Establishment, the Free Movement of Capital and Secondary EU Law in the Field of Company Taxation', Daniël S. Smit, Issue 2, pp. 40–61 |
infoDaniël S. Smit, 'The Position of the EU Member States’ Associated and Dependent Territories under the Freedom of Establishment, the Free Movement of Capital and Secondary EU Law in the Field of Company Taxation' (2011) 39 Intertax, Issue 2, pp. 40–61 | | This article examines the unexplored position of the Member States’ associated and dependent territories under the Treaty freedoms and secondary EU law in the field of company taxation. Based on an analysis of the relevant case law of the European Court of Justice (ECJ) and having regard to the degree of legal integration as it exists between the Member States and each respective associated or dependent territory, an analysis is made of the extent to which the application by a Member State of a restrictive company tax measure in situations involving an investment from or in an associated or dependent territory should fall under the personal and territorial scope of the Treaty freedoms and secondary EU law in the field of company taxation. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011005 |
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'A Step towards a Fair Corporate Taxation of Groups in the Emerging Global Market', Maarten F. de Wilde, Issue 2, pp. 62–84 |
infoMaarten F. de Wilde, 'A Step towards a Fair Corporate Taxation of Groups in the Emerging Global Market' (2011) 39 Intertax, Issue 2, pp. 62–84 | | The international corporate income and capital gains tax (CGT) systems of basically all modern nation states share a common objective. All seek to effectively 'capture' multinational enterprises ('MNEs') that are economically present within the respective taxing state's geographical borders for corporate tax purposes. In their operation, however, these systems typically subject groups to different corporate tax treatment dependant on their legal structuring or the question of whether the business operations are performed in a (non-)cross-border context. This affects the corporate tax burden imposed, which in turn influences the distribution of production factors. In addition, this affects corporate tax revenues. In individual cases, things may work out for the benefit or detriment of individual MNEs or tax administrations. If observed as a whole, it can nevertheless be said that the international tax systems of states distort the functioning of domestic markets, the internal market within the European Union (EU), and the emerging global market. This is problematical for all parties involved in the corporate taxation of proceeds from multinational business operations. The author addresses the question of how states may mitigate the distortions they unilaterally impose when taxing MNEs on the corporate business income earned and the capital gains realized within their respective territories. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011006 |
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'The Tenability of the Dutch Preservative Tax Assessment in Relation to Pension Benefits', Arco Bobeldijk, Karin Goossens, Issue 2, pp. 85–90 |
infoArco Bobeldijk, Karin Goossens, 'The Tenability of the Dutch Preservative Tax Assessment in Relation to Pension Benefits' (2011) 39 Intertax, Issue 2, pp. 85–90 | | The authors argue that the rulings of the Dutch Supreme Court, in which its substantive opinion on the tenability of the preservative tax assessment in relation to pension benefits is expressed, do not leave any scope for the remedial legislation implemented as a response thereto. The authors explain that the legislator has acted in violation of the principle of good faith that needs to be taken into account when interpreting and applying double tax treaties. According to the authors, the way to prevent that the entitlements accrued tax-efficiently are appropriated for other purposes than the intended purposes is by changing the bilateral tax treaties. This article includes an overview of the consequences of the rulings and the amendments to the law in various situations. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011007 |
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'Further Discrimination of Permanent Establishments: Tax Incentive to Maintain or Create Employment in Spain', Luis-Alfonso Martínez Giner, Issue 2, pp. 91–97 |
infoLuis-Alfonso Martínez Giner, 'Further Discrimination of Permanent Establishments: Tax Incentive to Maintain or Create Employment in Spain' (2011) 39 Intertax, Issue 2, pp. 91–97 | | The Spanish 2010 General State Budgets Act contained an important innovation consisting of the incorporation in the Spanish tax system of a new tax incentive to maintain or create employment. The fact that this tax incentive is not applicable to permanent establishments (PE) raises the question of whether it constitutes an infringement of the non-discrimination principle that limits the freedom of establishment. In general, the principle of nondiscrimination has had a significant impact on the Spanish tax system, mainly in relation to direct taxes and, in particular, on PE. The case we shall now analyse is an example of this type of discrimination, which is prohibited both under the non-discrimination of PE clause envisaged in double taxation treaties and pursuant to the Community freedom of establishment. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011008 |
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'Seminar on VAT on Financial Services at the University of Lisbon', Tomás Abecasis, Pavel Molek, Ana Rita Mota, Issue 2, pp. 98–108 |
infoTomás Abecasis, Pavel Molek, Ana Rita Mota, 'Seminar on VAT on Financial Services at the University of Lisbon' (2011) 39 Intertax, Issue 2, pp. 98–108 | | The Seminar on value added tax (VAT) on Financial Services was the fifth part of the postgraduate course in advanced tax law Key Topics in European VAT, that was organized on 26 June 2010 at the Law Faculty of University of Lisbon by Instituto de Direito Económico Financeiro Fiscal (IDEFF). This seminar had a real ‘star cast’: Professor Dr Ben J. M. Terra and Dr Oskar Henkow from School of Economics and Management of the Lund University, Professor Dr Joachim Englisch from University of Münster and Dr Rita de la Feria from the Centre for Business Taxation, Oxford University. Even the eruption of the Icelandic volcano Eyjafjallajökull was merely able to cause for postponement, rather than cancelling of this meeting between four of the best experts on VAT in Europe. In this meeting they shared their knowledge with the participants of the Seminar and the course Key Topics in European VAT – readers of INTERTAX can now access it too via this report. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011009 |
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'China Tax Scene', Jinghua Liu, Jon Eichelberger, Richard Tan, Issue 2, pp. 109–109 |
infoJinghua Liu, Jon Eichelberger, Richard Tan, 'China Tax Scene' (2011) 39 Intertax, Issue 2, pp. 109–109 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011010 |
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ISSUE 3 | |
'The Principle of Territoriality and Cross-Border Loss Compensation', Otto Marres, Issue 3, pp. 112–125 |
infoOtto Marres, 'The Principle of Territoriality and Cross-Border Loss Compensation' (2011) 39 Intertax, Issue 3, pp. 112–125 | | Member States are free to define their income tax base. They may in principle disregard foreign-sourced income, resulting in the impossibility of cross-border loss compensation. The European Court of Justice (ECJ) has accepted the principle of territoriality as a criterion for the division of the authority to tax, but its understanding of the concept of territoriality seems to differ from the current understanding of that concept in international tax law. Moreover, the ECJ does not accept all consequences of the application of territoriality, in particular, regarding the taxation of individuals (e.g., the Renneberg case). For individuals, the non-discrimination principle seems to override the recognition of sovereign assumption of fiscal jurisdiction. This raises questions such as how to apply the Schumacker criterion in loss situations and whether the ECJ's reasoning in De Groot extends to deduction of losses. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011011 |
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'Valuation Issues in Transfer Pricing of Intangibles: Comments on the Scoping of an OECD Project', Andreas Oestreicher, Issue 3, pp. 126–131 |
infoAndreas Oestreicher, 'Valuation Issues in Transfer Pricing of Intangibles: Comments on the Scoping of an OECD Project' (2011) 39 Intertax, Issue 3, pp. 126–131 | | After finalizing its revision of Chapters I and III of the Transfer Pricing Guidelines and adding a chapter on business restructurings last summer, in January 2011 the Organisation for Economic Co-operation and Development (OECD) embarked on a new project on the transfer pricing aspects of intangibles. Questions arising in this context cover a wide range of issues including, in particular, the methodologies and arameters used in valuation of such assets. Against this background, this article provides a brief summary of some fundamental valuation issues in transfer pricing of intangibles and looks at possible solutions. Corresponding guidance is based on relevant experience gathered when contributing to the discussion regarding transfer pricing aspects of valuing intangible assets that has been taking place in Germany over recent years. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011012 |
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'Double Domicile: A Pseudo-problem in the Taxation of Departing Companies', Thomas Rønfeldt, Issue 3, pp. 132–139 |
infoThomas Rønfeldt, 'Double Domicile: A Pseudo-problem in the Taxation of Departing Companies' (2011) 39 Intertax, Issue 3, pp. 132–139 | | This article focuses on the pseudo-problems of domicile under the Danish tax rules applying to departing companies - problems that arise out of Danish tax law but that have been acknowledged by the European Court via its case law. This article outlines the challenges faced by the taxpayer when Denmark allows a tax liability to be suspended on the expectation of later taxation on sale of the business abroad, given that the host country has the right of taxation. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011013 |
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'The Luxembourg IP Tax Regime', Frank van Kuijk, Issue 3, pp. 140–145 |
infoFrank van Kuijk, 'The Luxembourg IP Tax Regime' (2011) 39 Intertax, Issue 3, pp. 140–145 | | As from 2008, Luxembourg provides for a beneficial tax regime for income and capital gains attributable to a wide variety of intellectual property (IP). Over the last three years, an increasing number of corporate entities transferred their IP to Luxembourg companies in order to benefit from the IP regime. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011014 |
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'Conference Report: ‘Double Taxation and Federal Systems’', Ruben Martini, Issue 3, pp. 146–148 |
infoRuben Martini, 'Conference Report: ‘Double Taxation and Federal Systems’' (2011) 39 Intertax, Issue 3, pp. 146–148 | | The conference of the 'Arbeitskreis Steuergeschichte' analysed the interaction between double taxation and federal structures from both the historical and legal perspectives. Having been a characteristic of tax law since the nineteenth century, the increasing cooperation between states inevitably raised the question of the evolutionary development of these transnational mechanisms. The conference's presentations tackled this comprehensive subject by examining the different stages of development the avoidance of double taxation passed through within federal structures. Based on these historical parallels on the inter-local level, the understanding of today's provisions to avoid international double taxation could be refined. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011015 |
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'China Tax Scene', Jinghua Liu, Jon Eichelberger, Richard Tan, Issue 3, pp. 149–149 |
infoJinghua Liu, Jon Eichelberger, Richard Tan, 'China Tax Scene' (2011) 39 Intertax, Issue 3, pp. 149–149 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011016 |
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'EC Tax Scene', Kendra Hann, Anbreen Khan, Hans van den Hurk, Jasper Korving, Issue 3, pp. 150–151 |
infoKendra Hann, Anbreen Khan, Hans van den Hurk, Jasper Korving, 'EC Tax Scene' (2011) 39 Intertax, Issue 3, pp. 150–151 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011017 |
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'US Tax Scene', Tim Tuerff, Harrison Cohen, Gretchen Sierra, Janet Schellinger, Oshan James, Issue 3, pp. 152–155 |
infoTim Tuerff, Harrison Cohen, Gretchen Sierra, Janet Schellinger, Oshan James, 'US Tax Scene' (2011) 39 Intertax, Issue 3, pp. 152–155 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011018 |
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ISSUE 4 | |
'International Tax Arbitrage', Tulio Rosembuj, Issue 4, pp. 158–168 |
infoTulio Rosembuj, 'International Tax Arbitrage' (2011) 39 Intertax, Issue 4, pp. 158–168 | | The end of this decade leaves us with a scenario bare of any justification. There was not only the pursuit of certain logic for immediate profits but also the global aim to turn taxes (both local and international) into profits. Arbitrage was aimed to take advantage of differences in prices, and tax arbitrage went a step further aiming to turn the tax advantage into price. The aim was not solely to minimize the tax impact but also to add financial profits to the tax profit, which then became a source of income. The general principle against tax evasion establishes the restriction of any abusive practice in tax arbitrage. The double taxation principle needs the correlation of taxation, at least, in one place. One of the means used to avoid it was the use of financial hybrids and other hybrid forms. The Bank for International Settlements, Basel I, and the increasing role of credit rating agencies contributed substantially to the massive development of financial and tax arbitrage, both at local and international levels. We are in a position to know what triggered the financial markets crisis, but surprisingly enough, neither the financial law nor tax law has yet reacted. Scholars, regulations, and precedents provide sufficient basis for such a reaction! Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011019 |
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'Worrying Interpretation of ‘Liable to Tax’: OECD Clarification Would Be Welcome', Arnaud de Graaf, Frank Pötgens, Issue 4, pp. 169–177 |
infoArnaud de Graaf, Frank Pötgens, 'Worrying Interpretation of ‘Liable to Tax’: OECD Clarification Would Be Welcome' (2011) 39 Intertax, Issue 4, pp. 169–177 | | This article examines the rather strict interpretation of 'liable to tax' by the Dutch and Canadian Supreme Court requiring persons to be effectively liable in order to be treated as a treaty resident. As outlined, such an interpretation has the consequence of preventing tax-exempt bodies from being able to claim treaty benefits while also resulting, under certain allocation rules, in source states being unable to exercise their taxing rights. In the view of the authors, a person should be regarded as a treaty resident if he has such a nexus with a state that he would normally be taxed on his worldwide income there. Whether he actually pays tax is irrelevant, which is the view of many. For resolving the issue, the authors outline a proposal. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011020 |
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'Whirlpools and Sea Monsters: Navigating Tax Havens', Diego Quiñones Cruz, Issue 4, pp. 178–194 |
infoDiego Quiñones Cruz, 'Whirlpools and Sea Monsters: Navigating Tax Havens' (2011) 39 Intertax, Issue 4, pp. 178–194 | | Tax havens are one of the main areas of concern in contemporary tax policy, especially in these times of strenuous budgetary tension and outrageous tax fraud scandals. This article analyses the nature of tax havens and reflects on contemporary tax policy experiences in order to argue in favour of a definition based on the elements of secrecy and intent to escape tax burdens coupled with an examination of tax systems, services provided, functional structure, and the jurisdiction's attitudinal display. Having identified traditional conceptions of fiscal sovereignty, lack of medium- and long-term strategies, and ignoring the demand side of the equation as hurdles that prevent real progress, this article is concluded by formulating a series of tax policy recommendations that emphasize the importance of combined flexible conditionality-multilateral efforts to articulate the interests of the four main actors involved in tax havens (tax haven jurisdictions, users, financial intermediaries, and tax residence jurisdictions that are trying to recover revenue) in a network of cooperative strategies that provide: (1) economic substitution alternatives, (2) improvements of domestic tax systems so as to bolster legitimacy and reduce tax haven demand, and (3) which seek to attack societal complacency with tax fraud. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011021 |
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'Granting Tax Treaty Benefits to Collective Investment Vehicles: A Review of the OECD Report and the 2010 Amendments to the Model Tax Convention', Bruno da Silva, Issue 4, pp. 195–206 |
infoBruno da Silva, 'Granting Tax Treaty Benefits to Collective Investment Vehicles: A Review of the OECD Report and the 2010 Amendments to the Model Tax Convention' (2011) 39 Intertax, Issue 4, pp. 195–206 | | One of the significant amendments to the 2010 Model Tax Convention is the introduction of new paragraphs to Article 1 of the Commentary regarding the granting of tax treaty benefits to Collective Investment Vehicles (CIVs). Those amendments are the result of the work performed by the Organisation for Economic Co-operation and Development (OECD) in the past years, which gave rise to a report, published in April 2010. This article describes the contents of this report and the corresponding amendments to the Commentary and, where relevant, makes some critical remarks to the solutions provided therein. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011022 |
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'An In-Depth Analysis of New Transfer Pricing Documentation Rules', Piergiorgio Valente, Issue 4, pp. 207–222 |
infoPiergiorgio Valente, 'An In-Depth Analysis of New Transfer Pricing Documentation Rules' (2011) 39 Intertax, Issue 4, pp. 207–222 | | The purpose of this work is to provide an in-depth analysis of the topic of transfer pricing documentation within the context of inter-company transactions entered into with non-resident enterprises, in view of amendments recently introduced by Decree-Law No. 78 of 31 May 2010. To such end, it would be useful to focus on the development of the debate that has been taking place in the last few years within an international scenario relating to the need to provide documentary requirements to justify - in case of tax audits by the tax authorities - the application of certain inter-company prices. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011023 |
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'Report on the 1st Conference on Recent Tax Treaty Case Law, European Tax College, the Netherlands', D.S. Smit, C.A.T. Peters, Issue 4, pp. 223–228 |
infoD.S. Smit, C.A.T. Peters, 'Report on the 1st Conference on Recent Tax Treaty Case Law, European Tax College, the Netherlands' (2011) 39 Intertax, Issue 4, pp. 223–228 | | On 20 October 2010, a conference on 'recent tax treaty case law' was organized by the European Tax College and was held at the premises of TilburgUniversity, the Netherlands. This conference highlighted nine recent tax treaty cases decided by courts in various jurisdictions and focused on four main themes in tax treaty law. This contribution provides a brief report on the main topics discussed during the conference. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011024 |
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'China Tax Scene', Jinghua Liu, Richard Tan, Issue 4, pp. 229–229 |
infoJinghua Liu, Richard Tan, 'China Tax Scene' (2011) 39 Intertax, Issue 4, pp. 229–229 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011025 |
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'EU Tax Scene', Brian Leonard, German Minano, Issue 4, pp. 230–230 |
infoBrian Leonard, German Minano, 'EU Tax Scene' (2011) 39 Intertax, Issue 4, pp. 230–230 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011026 |
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'US Tax Scene', Harrison Cohen, Issue 4, pp. 231–231 |
infoHarrison Cohen, 'US Tax Scene' (2011) 39 Intertax, Issue 4, pp. 231–231 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011027 |
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ISSUE 5 | |
'Abusive Transactions on Financial Hybrids', Tulio Rosembuj, Issue 5, pp. 234–247 |
infoTulio Rosembuj, 'Abusive Transactions on Financial Hybrids' (2011) 39 Intertax, Issue 5, pp. 234–247 | | Financial hybrids are the main purpose of structured financial operations by means of special purpose vehicles (SPVs), off the balance sheet. There is an essential element without which the systemic financial crisis may never be understood, that is, the exclusive tax purpose that was purportedly aimed by the financial, banking, and insurance companies. Abusive transactions on financial hybrids (futures, swaps, repos) were designed, as proven by the US and New Zealand jurisprudence, to simultaneously obtain financial and tax advantages. Financial hybrids may result from a commercial and corporate purpose but such is not the case for synthetic hybrids over the counter, which, blessed by credit rating agencies, used arbitrage as an ordinary pattern, aiming to take advantage of the lack of coordination between legal systems and the opacity and secrecy of the transactions themselves. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011028 |
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'Suggested Treaty Benefits Approaches for Collective Investment Vehicles (CIVs) and Its Investors under the OECD MTC 2010 update', Hein Vermeulen, Issue 5, pp. 248–256 |
infoHein Vermeulen, 'Suggested Treaty Benefits Approaches for Collective Investment Vehicles (CIVs) and Its Investors under the OECD MTC 2010 update' (2011) 39 Intertax, Issue 5, pp. 248–256 | | Collective investment vehicles (CIVs) are specifically addressed in the 2010 update of the Organisation for Economic Co-operation and Development (OECD) Model Tax Convention (MTC) and the commentary thereto. Attention is paid to the tax treaty position of CIVs in an international context. The main question is whether a CIV is treaty-eligible and, if not, whether the investors in the CIV are allowed to claim some kind of treaty protection in lieu of the CIV. In this paper, the author addresses the specific approaches laid down in the 2010 commentary to the OECD MTC to cope with the problems that arise if the normal rules are applied to CIVs. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011029 |
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'From Marks & Spencer to X Holding: The Future of Cross-Border Group Taxation in the European Union', Bruno da Silva, Issue 5, pp. 257–265 |
infoBruno da Silva, 'From Marks & Spencer to X Holding: The Future of Cross-Border Group Taxation in the European Union' (2011) 39 Intertax, Issue 5, pp. 257–265 | | On 28 April 2010, the Amsterdam Centre for Tax Law (ACTL) of the University of Amsterdam organized the seminar 'From Marks & Spencer to X Holding: The Future of Cross-Border Group Taxation'. The purpose was to debate the Court of Justice (CJ)'s decision in the X Holding case and its possible impact on the Dutch fiscal unity and in the United Kingdom (considering both the Marks & Spencer and Phillips Electronics cases) and to analyse future trends on cross-border group taxation (with special attention to the Danish cross-border group taxation, group taxation in the Value-Added Tax (VAT), and group taxation in the Common Consolidated Corporate Tax Base (CCCTB)). The seminar was divided into four panels and gathered experts from the Netherlands and across Europe to discuss the above-mentioned topics. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011030 |
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'Change of Individual’s Residence within EU: The ‘Tax Residence’ Issue as a Possible Obstacle from an Italian Perspective', Paolo Scarioni, Issue 5, pp. 266–270 |
infoPaolo Scarioni, 'Change of Individual’s Residence within EU: The ‘Tax Residence’ Issue as a Possible Obstacle from an Italian Perspective' (2011) 39 Intertax, Issue 5, pp. 266–270 | | Due to the ever-rising level of European integration, in the last few years, a growing number of individuals move from one European Union (EU) Member State to another. This article is aimed to analyse the dual residence issue that could seriously obstacle the above movement. In particular, the article moves from the notion of tax residence provided by the Italian tax legislation and then wonders on the actual role or capability of the international tie-breaker rules as well of the Community law to solve double residence problems. Finally, the article points out that even though Italian jurisprudence has acknowledged the relevance of the notion of residence that can be found in some provisions of the Community law, the determination of the place of tax residence is an issue that remains under the exclusive competence of the national judges. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011031 |
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'Retroactivity: Swedish Practice on Legislation by Governmental Communication', Robert Påhlsson, Issue 5, pp. 271–275 |
infoRobert Påhlsson, 'Retroactivity: Swedish Practice on Legislation by Governmental Communication' (2011) 39 Intertax, Issue 5, pp. 271–275 | | Some European states apply an absolute prohibition of retroactivity in taxation, whereas others allow for retroactivity to various extent. A number of states apply different variations of a legislative technique that comprises press releases; special announcements; or, as in the case of Sweden, communications issued by the government. Such press releases and communications often have in common the effect of rendering legally binding, from the time of their publication, laws that are subsequently adopted by Parliament. In this article, this technique is subjected to discussion. An evaluation is presented on the use of retroactive tax legislation in Sweden over the past two decades. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011032 |
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'Is the Tax Relevance of Data Really Explosive in the German Electronic Tax Field Audit?', Otto-Ferdinand Graf Kerssenbrock, Issue 5, pp. 276–281 |
infoOtto-Ferdinand Graf Kerssenbrock, 'Is the Tax Relevance of Data Really Explosive in the German Electronic Tax Field Audit?' (2011) 39 Intertax, Issue 5, pp. 276–281 | | German tax law requires retention of records whenever they are 'significant for taxation'. This applies to records written on paper and likewise to digital data. The latter are subject to electronic tax field audits. Tax auditors can require access to such digital data provided they are 'determining for the assessment of tax'. In both contexts - the obligation to retain records and the obligation to grant access to digital data - the taxpayer's duties depend on what is often unprecisely called the tax relevance of the data in question. It is the purpose of the following contribution to explore on the different content of the ambiguous term tax relevance in the different contexts and to explain where this term can be 'explosive' for German electronic tax field audits. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011033 |
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'Amendments to Particular Turkish Tax Laws', Ramazan Biçer, Issue 5, pp. 282–292 |
infoRamazan Biçer, 'Amendments to Particular Turkish Tax Laws' (2011) 39 Intertax, Issue 5, pp. 282–292 | | The Law Numbered 6009 Regarding the Amendments in the Personal Income Tax Law (PITL) and Certain Laws has been promulgated upon its publication in the Official Gazette dated 1 August 2010 and Numbered 27659. The Law imposes changes in several tax subjects: income tax tariff applicable to the salaries and wages retrospectively from 1 January 2010, investment allowance limited to 25% of the corporate income without any period limitations, tax rate on gains derived on income stated in Temporary Article 63 of Income Tax Law, certain corporate income tax (CIT) exemption and exceptions, social and military exceptions in Value Added Tax (VAT) Law, and some other tax issues. In this article, these tax law amendments are deeply analysed from the points of personal income tax (PIT), CIT, and VAT and the subjects are expanded by examples. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011034 |
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'EC Tax Scene', Michael Weismann, Petra Apfelthaler, Jasper Korving, Issue 5, pp. 293–294 |
infoMichael Weismann, Petra Apfelthaler, Jasper Korving, 'EC Tax Scene' (2011) 39 Intertax, Issue 5, pp. 293–294 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011035 |
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ISSUE 6/7 | |
'A Critical Review of the Definition of Tax Avoidance in the Case Law of the European Court of Justice', Rami Karimeri, Issue 6/7, pp. 296–316 |
infoRami Karimeri, 'A Critical Review of the Definition of Tax Avoidance in the Case Law of the European Court of Justice' (2011) 39 Intertax, Issue 6/7, pp. 296–316 | | Tax avoidance, as defined by the European Court of Justice (ECJ), reflects the principle of abuse of rights, and thereby the Court's teleological interpretation of the objectives and scope of Community law. The definition is consequently well in line with more theoretical elements of tax avoidance related to the flexibility of judicial interpretation. However, the Court's apparent distinction between tax avoidance and abuse of rights leads to a confusing approach. Furthermore, when the Court's definition of tax avoidance is construed properly through theoretical considerations, it is evident that the Court's interpretation of the objective and scope of the Treaty freedoms is insufficient and in need of open and comprehensive justifications. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011036 |
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'The Efficacy of Thin Capitalization Rules and Their Barriers: An Analysis from the UK and German Perspective', Claus-Peter Knöller, Issue 6/7, pp. 317–336 |
infoClaus-Peter Knöller, 'The Efficacy of Thin Capitalization Rules and Their Barriers: An Analysis from the UK and German Perspective' (2011) 39 Intertax, Issue 6/7, pp. 317–336 | | Regulating thin capitalization is a good example of the general problem that even if legislators try to close loopholes through anti-avoidance rules, tax avoidance is the symptom of underlying problems in the tax system. The concept of thin capitalization as a tax avoidance scheme is relatively easy to understand, but a sophisticated solution to control this problem, which meets the requirements of legal framework barriers (EC and constitutional law) and implements a well-targeted scope of application, is very difficult to find. Therefore, this article analyses the efficacy and legal conformity of the current thin capitalization rules in the UK and in Germany. The German thin capitalization regime in particular is far-off being a well-targeted anti-avoidance rule. Finally, this article suggests an approach combining a standard-based and a rule-based regime for regulating thin capitalization. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011037 |
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'Treaty Entitlement of Investment Funds: The German Perspective', Florian Haase, Issue 6/7, pp. 337–342 |
infoFlorian Haase, 'Treaty Entitlement of Investment Funds: The German Perspective' (2011) 39 Intertax, Issue 6/7, pp. 337–342 | | The application of tax treaties to investment funds has rarely been discussed in academic writing, even on an international level. This holds true not only for the treaty entitlement of such vehicles but also for the questions of, for example, whether funds can be subject to withholding taxes, whether they can be regarded as beneficial owners, or which rules should be applied in triangular cases. While there are few papers1 from a comparative law perspective that deal with the subject in general, this article focuses on the treaty entitlement of investment funds from a German perspective. The findings are based on recent developments in German national tax law, as well as on the 2010 update to the Organisation for Economic Co-operation and Development (OECD) Model Tax Convention and the corresponding Commentary. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011038 |
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'Lesson Learned by the New Italian Law on Limited Tax Shield on Debt: Much Ado about Nothing', Alberto Lanzavecchia, Giulio Tagliavini, Issue 6/7, pp. 343–352 |
infoAlberto Lanzavecchia, Giulio Tagliavini, 'Lesson Learned by the New Italian Law on Limited Tax Shield on Debt: Much Ado about Nothing' (2011) 39 Intertax, Issue 6/7, pp. 343–352 | | Corporate finance management rules are written under the assumption that financing costs are fully deductible from taxable income. If this assumption is relaxed, such rules need to be revised. We review traditional management tools and propose a new set of guidelines for financial management. The tax reform introduced in Italy, which creates a partial tax deduction for financing costs, offers a case study to measure the impact of such rules on a firm's profitability. The general wisdom among academics and practitioners was of a further pressure on economic performance of firms due to a higher tax burden. Is this concern effective? Do Italian firms pay more taxes in the following years? We checked the effect of the new rules on a sample of 2,025 large Italian firms. We did not find a deep impact. Effects are limited to one sector, characterized by operating profitability on sample mean and financial leverage below sample mean. Policy makers are now advised to fine-tune this regulation or to abandon it. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011039 |
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'New Tax Regime in the Dutch Caribbean: International Aspects', Peter Kavelaars, Issue 6/7, pp. 353–364 |
infoPeter Kavelaars, 'New Tax Regime in the Dutch Caribbean: International Aspects' (2011) 39 Intertax, Issue 6/7, pp. 353–364 | | On 10 October 2010, the Dutch Antilles ceased to exist. Curaçao and St Maarten have become countries within the Kingdom of the Netherlands, and thus, just like Aruba, they have obtained a so-called status aparte - they each have their own tax system. The islands Bonaire, St Eustatius, and Saba - also known as the BES, or the Dutch Caribbean - have become special overseas municipalities of the Netherlands. Although this makes them part of the Netherlands, they, nevertheless, have their own system of state taxes and, for that matter, of local taxes. Hence, the Netherlands now has two systems of state taxes, that is, in the European part of the Netherlands and in the Dutch Caribbean. This article discusses the international aspects of the BES tax system, both vis-à-vis the European part of the Netherlands and the other countries of the Kingdom and vis-à-vis third countries. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011040 |
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'Luxembourg’s Move towards IFRS: Income Tax Impact', Anna Sergiel-Bhardwaj, Issue 6/7, pp. 365–372 |
infoAnna Sergiel-Bhardwaj, 'Luxembourg’s Move towards IFRS: Income Tax Impact' (2011) 39 Intertax, Issue 6/7, pp. 365–372 | | The end of 2010 brought significant accounting changes in Luxembourg, with the introduction on an optional basis of International Financial Reporting Standards (IFRS) for undertakings. While the accounting law has been brought up to speed with European standards, the draft law to adapt the relevant tax provisions accordingly was withdrawn from Parliament and, to date, has not been re-introduced. This article looks at the history of the proposed amendments and also tries to examine what this situation means for businesses. The issues addressed are the potential impact on the taxable basis of accounting under IFRS, classification issues in respect of financial instruments, and, finally, the availability of certain tax advantages. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011041 |
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ISSUE 8/9 | |
'Coordinating Tax Strategies at the EU Level as a Solution to the Economic and Financial Crisis', Giuseppe Melis, Federica Pitrone, Issue 8/9, pp. 374–380 |
infoGiuseppe Melis, Federica Pitrone, 'Coordinating Tax Strategies at the EU Level as a Solution to the Economic and Financial Crisis' (2011) 39 Intertax, Issue 8/9, pp. 374–380 | | The global economic and financial crisis that started in 2008 is strictly connected with national and European tax policies, concerning both the existence of specific elements of the tax systems that have contributed to the crisis and the role played by tax policies implemented by states in countering the crisis itself. This article provides an analysis of national and European tax policy strategies introduced during the crisis and points out the necessity of a tax coordination at the European Union (EU) level in order to increase fiscal integration among Member States while respecting national sovereignty and thus giving Member States the opportunity to adopt tax measures according to their needs and specificities. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011042 |
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'Determinants of Effective Tax Rate: Evidence for USA and the EU', Elena Fernández-Rodríguez, Antonio Martínez-Arias, Issue 8/9, pp. 381–395 |
infoElena Fernández-Rodríguez, Antonio Martínez-Arias, 'Determinants of Effective Tax Rate: Evidence for USA and the EU' (2011) 39 Intertax, Issue 8/9, pp. 381–395 | | This article carries out a comparative analysis of the tax burden borne by listed companies in the USA and the European Union (EU) and of the determinants of the Effective Tax Rate (ETR). A sample of companies was drawn up from the Datastream/Worldscope database over the period 1995-2007. By applying panel data estimation procedures, the main findings are, on the one hand, that ETRs are significantly lower for US firms than for European firms and that the tax burden is determined by both the actual characteristics of the individual firm and by the tax policies adopted by governments. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011043 |
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'Financial Innovation and a Universally Applicable Distinction between Accruals and Realization Taxation', Richard Wood, Issue 8/9, pp. 396–403 |
infoRichard Wood, 'Financial Innovation and a Universally Applicable Distinction between Accruals and Realization Taxation' (2011) 39 Intertax, Issue 8/9, pp. 396–403 | | Existing accruals/realization tax borderlines differ by jurisdiction and are generally incapable of dealing consistently with many innovative structured financial instruments, particularly hybrid instruments and those incorporating both fixed and contingent returns. This article develops a new analytical approach to defining the accruals/realization tax borderline, which does not disturb, and is consistent with, the existing realizations treatment of shares and the accruals treatment of bonds. The approach relies on a single, standard measure of risk, the annualized volatility of returns. The approach provides a unique solution for all innovative financial instruments and could have application in all jurisdictions. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011044 |
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'The (In)Consistency of the German Foreign Transaction Tax Act with European Law', Benjamin Cortez, Thorsten Vogel, Issue 8/9, pp. 404–416 |
infoBenjamin Cortez, Thorsten Vogel, 'The (In)Consistency of the German Foreign Transaction Tax Act with European Law' (2011) 39 Intertax, Issue 8/9, pp. 404–416 | | The German Foreign Transaction Tax Act [FTTA; Außensteuergesetz (AStG)] has, in recent history, been the subject of criticism concerning its consistency with European law. The legislator has reacted to this criticism and adapted the FTTA to be in accordance with the requirements set forth by the European Court of Justice (ECJ) and European law. Despite the actions taken by the German legislator, doubts remain whether the FTTA fulfils the requirements of European law. This article, therefore, analyses the provisions of the FTTA in regard to their consistency with the basic European freedoms. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011045 |
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'Employer Tax Implications of Inbound Assignments to Germany — A Wage Tax Driven Overview on Domestic German and Double Tax Treaty Regulations', Lukas Hilbert, Issue 8/9, pp. 417–425 |
infoLukas Hilbert, 'Employer Tax Implications of Inbound Assignments to Germany — A Wage Tax Driven Overview on Domestic German and Double Tax Treaty Regulations' (2011) 39 Intertax, Issue 8/9, pp. 417–425 | | The application of a withholding tax regime on employment income is common in many countries but continues to create difficulties for employers, especially in the course of international assignments. An analysis of the German wage system tax may reveal the critical points on which decisions are necessary when developing a regime. This article provides a wage tax driven overview on the domestic and double taxation treaty regulations as applied in Germany, summaries of current discussions in tax literature and the German authorities' as well as the federal tax court's view on several critical issues. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011046 |
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'Update on the Dutch Fund for Joint Account (‘closed’ FGR): Asset Pooling Vehicle for International Investors and Pension Funds', Michiel Beudeker, Issue 8/9, pp. 426–435 |
infoMichiel Beudeker, 'Update on the Dutch Fund for Joint Account (‘closed’ FGR): Asset Pooling Vehicle for International Investors and Pension Funds' (2011) 39 Intertax, Issue 8/9, pp. 426–435 | | The Dutch fund for joint account being transparent from a Dutch tax perspect ive (besloten Fonds voor Gemene Rekening (hereinafter 'closed FGR') is a well-established and flexible international asset pooling vehicle for domestic and international investors and pension funds. The attractiveness of the closed FGR as international asset pooling vehicle has been further increased over the last months as the Dutch authorities concluded mutual agreements on its tax transparency with various tax treaty partners and also indicated in their recently updated Policy Note on the Dutch Tax Treaty Policy that they intend to conclude many more similar mutual agreements. Although the closed FGR may already be considered transparent from a foreign tax perspective, confirmation of such classification by means of a mutual agreement provides more certainty. Pursuant to its tax transparency, for purposes of application of the respective tax treaties, all income and gains from the closed FGR's underlying assets are thus allocated to its investors in proportion to their participations in the closed FGR and tax neutrality is achieved. By concluding these agreements, and as the closed FGR may be categorized as a collective investment vehicle (CIV), the policy of the Dutch authorities is in line with the views of the Organization for Economic Co-operation and Development (OECD) expressed in the 2010 Report on the Granting of Treaty Benefits with Respect to the Income of CIVs, which gave rise to amendments in the recently updated Commentary to Article 1 of the 2010 OECD Model Convention. In this article, the author addresses (1) the main characteristics of the FGR, (2) the international tax aspects of the closed FGR, (3) the content of the abovementioned mutual agreements, (4) the views expressed by the Dutch authorities in the updated Policy Note on the Dutch Tax Treaty Policy, and (5) the aforementioned points in relation to the recent OECD developments on CIVs. Furthermore, although the developments initiated by the Dutch authorities are very helpful and promising, the author provides recommendations to further support the closed FGR as international asset pooling vehicle. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011047 |
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'The Impact of the UN and OECD Model Tax Conventions on Turkish Tax Treaties', Hakan Üzeltürk, Issue 8/9, pp. 436–448 |
infoHakan Üzeltürk, 'The Impact of the UN and OECD Model Tax Conventions on Turkish Tax Treaties' (2011) 39 Intertax, Issue 8/9, pp. 436–448 | | Turkey is an appealing country for global investors. The economical importance of Turkey with the defragment of the geopolitical importance will gain deeper dimension and meaning. Since the outbreak of the global financial system crisis, the issue of tax cooperation between related parties has a priority on the international agenda. The Turkish tax regime is an important part of the economy since Turkey attaches a high priority to the encouragement of foreign investment and provides a variety of incentives. Turkey is a signatory to a tax treaty with many countries all over the world. Turkey's tax treaties generally follow the provisions of the Organization for Economic Co-operation and Development (OECD) Model Convention. This study intends to give vision all foreign investors about Turkish Double Taxation Treaties. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011048 |
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'The Compatibility of the Estonian Tax Treatment of Real Estate Income with EU Law', Erki Uustalu, Issue 8/9, pp. 449–458 |
infoErki Uustalu, 'The Compatibility of the Estonian Tax Treatment of Real Estate Income with EU Law' (2011) 39 Intertax, Issue 8/9, pp. 449–458 | | The European Court of Justice (ECJ) has made a number of important judgments regarding the tax treatment of dividends on outbound situations, whether received by non-resident legal entities or foreign funds. The article analyses a similar issue - the tax treatment of real estate income received by non-residents. Based on an infringement procedure by the Commission of European Communities against Estonia on the discriminatory treatment of real estate income received by foreign investment funds (No. 2008/4851) and a pending dispute before the Tallinn Administrative Court on taxation of gains from liquidation of an Estonian real estate company at the hands of Austrian parent company (No. 3-10-25), the article questions whether indirect discrimination may be caused by applying different tax rates to the residents and non-residents, including an option granted to the resident companies to choose their tax rate; whether the unequal treatment may be a result of different computation of the taxable base (gross or net comparison) or due to the specific characteristics of the Estonian corporate tax system, the cash flow disadvantage might be such cause. The author concludes with some suggestions on changes to be made to bring Estonian legislation in line with European Union (EU) law. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011049 |
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ISSUE 10 | |
'Dividend Withholding Tax Planning Techniques: Part 1', Paulus Merks, Issue 10, pp. 460–470 |
infoPaulus Merks, 'Dividend Withholding Tax Planning Techniques: Part 1' (2011) 39 Intertax, Issue 10, pp. 460–470 | | Although there is a confounding variety of cross border dividend withholding tax planning techniques available to the modern corporate taxpayer this study has sought to identify, analyse and categorize these techniques in abstracto and, unless stated otherwise, without linking these techniques to particular countries. Part 1 of this two-part study identifies, analyses and categorizes the so-called formal dividend withholding tax planning techniques. Part 2 identifies, analyses and categorizes the so-called substantive dividend withholding tax planning techniques. In addition, part 2 provides a framework whereby the various dividend withholding tax planning techniques can be categorized in a consistent and universal manner. Such framework may have more than a purely academic value. It may be of benefit for the corporate taxpayer and his advisors since the framework can make clear what sorts of dividend withholding tax planning techniques are worldwide available and what planning technique the respective taxpayer may suit best. In addition, the framework can also be of benefit to governments. It may proof a tool to categorize and administer what planning techniques are used by what sort of taxpayer and at what frequency. Moreover the framework may perfectly show what dividend withholding tax loopholes in domestic legislation are still clear and present. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011050 |
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'Exit Taxes on Companies in the Context of the EU Internal Market', Daria Zernova, Issue 10, pp. 471–493 |
infoDaria Zernova, 'Exit Taxes on Companies in the Context of the EU Internal Market' (2011) 39 Intertax, Issue 10, pp. 471–493 | | In Daily Mail, the Court of Justice (CJ) ruled that the freedom of establishment did not confer on companies the right to leave jurisdiction of a Member State (MS). Ever since, exit taxation of companies has been an area full of obscurities and unknowns. Among them are: restrictive effect of non-harmonized connecting factors; an appropriate comparability standard; the absence of comparability as a ground of breach versus applying the fiscal territoriality principle at the level of justification; and criteria for an internally coherent system of exit taxation rules. Discussion of the mentioned issues aims at defining how far EU law can affect national provisions on exit taxation. In particular, the developments that the CJ case law has undergone over a past decade induce to make an abrupt conclusion: double taxation in an exit taxation case can be a fault of an MS, if viewed from the internal market perspective. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011051 |
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'Non-profit Taxation on Corporations in the EU: Lessons from Corporate Tax Reforms in Germany and Tax Implications of the Global Economic Crisis', Christoph Spengel, Benedikt Zinn, Issue 10, pp. 494–520 |
infoChristoph Spengel, Benedikt Zinn, 'Non-profit Taxation on Corporations in the EU: Lessons from Corporate Tax Reforms in Germany and Tax Implications of the Global Economic Crisis' (2011) 39 Intertax, Issue 10, pp. 494–520 | | Without any doubt, one of the primary policy issues in public finance in the European Union (EU) is the issue of tax competition, which results in a race to the bottom in statutory tax rates, tax base broadening policies, and potential distortions in firm decisions. The literature focuses mainly on profit taxes; however, as the financial crisis is biting into the real economy, non-profit taxes have become a more important factor in the overall tax burden on companies. In this context, one important question is whether non-profit taxation and tax base broadening policies have accelerated the course of economic downturn. This article analyses the impact of non-profit taxes on the overall tax burdens of companies. It offers not only a broad geographical scope but also great detail in calculations of tax burdens on income-independent taxes. In particular, it reveals that tax regimes characterized by restrictive thin capitalization rules, tightened loss offset rules, or a high proportion of non-profit taxes in the overall tax mix are more severely hit by economic downturns. The various tax measures taken by many EU-27 Member States in response to the crisis are, therefore, looked upon favourably. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011052 |
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'Changes in the Application of Tax Treaties in Sweden', Maria Hilling, Issue 10, pp. 521–523 |
infoMaria Hilling, 'Changes in the Application of Tax Treaties in Sweden' (2011) 39 Intertax, Issue 10, pp. 521–523 | | In 2008, the Swedish Supreme Administrative Court gave precedence to controlled foreign corporation (CFC) legislation over a tax treaty without consulting the tax treaty. Since then, the relationship between domestic law and tax treaties has been a highly debated issue in Sweden. The Court's reasoning was based on an identified conflict between domestic law and a tax treaty, which was solved through reference to general principles on derogation. In a recent judgment in a similar situation, the same Court deviated in principle from the 2008 judgment by giving priority to the tax treaty over domestic law, thereby creating a welcome return to established principles of tax treaty application. Because the Court introduced a rule of exception from the rule that Swedish tax treaties prevail over domestic law, however, this recent decision introduces changes for the application of tax treaties in Sweden. In such situations, the main rule of tax treaty precedence over domestic law is set aside, and the principles of derogation will be applied. This article is divided into four sections, in which I examine and analyse the recent case and its implications for tax treaty application in Sweden. As the 2008 decision is of central importance, I briefly present this case in section 1. In section 2, I turn to the 2010 decision. Conclusions on the effects of the Court's adjudication on tax treaty application in Sweden are presented in section 3, in which I analyse the situations to which the rule of exception is applicable. A significant legal issue following the aftermath of the 2010 decision is presented in section 4. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011053 |
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ISSUE 11 | |
'Dividend Withholding Tax Planning Techniques: Part 2', Paulus Merks, Issue 11, pp. 526–533 |
infoPaulus Merks, 'Dividend Withholding Tax Planning Techniques: Part 2' (2011) 39 Intertax, Issue 11, pp. 526–533 | | Although there is a confounding variety of cross-border dividend withholding tax planning techniques available to the modern corporate taxpayer, this study has sought to identify, analyse and categorize these techniques in abstracto and, unless stated otherwise, without linking these techniques to particular countries. Whereas Part 1 of this two-part study focused on the so-called formal dividend withholding tax planning techniques, the underlying Part 2 identifies, analyses and categorizes the so-called substantive dividend withholding tax planning techniques. In addition, this Part 2 provides a framework whereby the various dividend withholding tax planning techniques can be categorized in a consistent and universal manner. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011054 |
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'Pioneering Decision of the Constitutional Court of Hungary to Invoke the Protection of Human Dignity in Tax Matters', Daniel Deák, Issue 11, pp. 534–542 |
infoDaniel Deák, 'Pioneering Decision of the Constitutional Court of Hungary to Invoke the Protection of Human Dignity in Tax Matters' (2011) 39 Intertax, Issue 11, pp. 534–542 | | The jurisdiction of the Hungarian Constitutional Court has been changed recently. Currently, the provisions of budget and tax laws cannot be reviewed by this Court unless the application filed with the Court exclusively has referred to the infringement of the right to life or human dignity. The Court did not have to wait for a long time to exploit an opportunity and carry out a test of tax law provisions, now strictly in the light of the protection of human dignity. This is unusual because tax cases have not been dealt with before by referring to the protection of human dignity. The present article seeks to explore a link between the protection of human dignity and taxation through the analysis of a specific decision of the Court. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011055 |
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'Tax Avoidance and Non-proportional Demergers', Filippo Alessandro Cimino, Issue 11, pp. 543–546 |
infoFilippo Alessandro Cimino, 'Tax Avoidance and Non-proportional Demergers' (2011) 39 Intertax, Issue 11, pp. 543–546 | | This article analyses the compatibility with European Union (EU) law of the anti-avoidance practice by Italian tax authorities in the field of non-proportional demergers. Based on the European Court of Justice (ECJ) case law and selected tax literature, the author concludes that such practice is incompatible with EU law and violates the obligation of tax authorities to comply with the principle of Union loyalty. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011056 |
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'New Tax Rules on Cross-Border Mergers and Demergers in Norway and Their Compatibility with the EEA Agreement', Anna B. Scapa Passalacqua, Issue 11, pp. 547–556 |
infoAnna B. Scapa Passalacqua, 'New Tax Rules on Cross-Border Mergers and Demergers in Norway and Their Compatibility with the EEA Agreement' (2011) 39 Intertax, Issue 11, pp. 547–556 | | In this article the author provides an overview of the new Norwegian tax rules for cross-border restructurings and comments on the compatibility of the new rules with the fundamental freedoms in the agreement of the European Economic Area. It is submitted that certain aspects of the new rules may create an unjustified restriction on the right of establishment and the free movement of capital. In particular this may apply to the exclusion of triangular mergers and demergers from the scope of application of the new rules, the termination of the right to utilize previous tax losses after the merger or demerger (in certain situations), the tax treatment applicable to inventory and intangibles taken out of the Norwegian tax jurisdiction and the introduction of the wholly artificial requirement as a measure to prevent tax abuse for cross-border mergers and demergers. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011057 |
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'Non-exhausted Losses and the Merger Directive: What It Fails to Say', Jeanette Calleja Borg, Issue 11, pp. 557–563 |
infoJeanette Calleja Borg, 'Non-exhausted Losses and the Merger Directive: What It Fails to Say' (2011) 39 Intertax, Issue 11, pp. 557–563 | | This article will discuss the provisions in the Merger Directive that deal with losses and loss carry-forward and whether these provisions entail sufficient guidelines for companies reorganizing their activities on the European Union (EU). It also addresses the anti-abuse provisions found in Article 15 of the Directive with particular reference to carry-over of losses. The FOGGIA case, which was recently referred to the European Court of Justice (ECJ), will also be discussed in this article. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011058 |
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'Applicability of Double Taxation Avoidance Agreements to Fiscally Transparent Entities: An Indian Perspective', Anish Agarwal, Tarumoy Chaudhuri, Issue 11, pp. 564–569 |
infoAnish Agarwal, Tarumoy Chaudhuri, 'Applicability of Double Taxation Avoidance Agreements to Fiscally Transparent Entities: An Indian Perspective' (2011) 39 Intertax, Issue 11, pp. 564–569 | | Being 'liable to taxation' is a prerequisite for being a resident (under most double taxation avoidance agreements (DTAAs)). Therefore, fiscally transparent entities (as they do not pay taxes) would not be residents and thus would not be entitled to treaty benefits. However, the Hon'ble Income Tax Appellate Tribunal, Mumbai Bench, has recently held that fiscally transparent entities would be eligible for treaty benefits.1 The same needs to be analysed in light of the judgments given by the Hon'ble Supreme Court of India and views of various nations around the globe. This article considers the various scenarios that could pose problems in the interpretation of DTAA and its applicability to partnerships where different countries treat them differently. It also analyses the Indian position with regard to interpretation of DTAA, the reservations that it has taken against the Organisation for Economic Co-operation and Development (OECD) Model Tax Convention on Income and on Capital (Condensed Version), 22 July 2010 (hereinafter 'OECD Commentary'), and the justifiability of the same. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011059 |
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'Legal Valuation in Chinese VAT and Business Tax', Xiaoqiang Yang, Issue 11, pp. 570–575 |
infoXiaoqiang Yang, 'Legal Valuation in Chinese VAT and Business Tax' (2011) 39 Intertax, Issue 11, pp. 570–575 | | Valuation issues permeate all tax laws and regulations. In Chinese value added tax (VAT) and business tax, legal valuation is mandatory under non-monetary consideration transaction, anti-avoidance, and transfer-pricing circumstances. In recent years, tax valuation is becoming more and more complicated in intangible property transactions and financial instrument transactions; these types of transactions constitute big challenges to traditional legal valuation. In China, legal valuation exists in tax laws, accounting standards, and valuation standards; there are some divergences among these regulations. How to coordinate these standards is becoming a critical problem. This article focuses on an analysis of legal valuation in Chinese VAT and business tax, sorts out the concepts evolution from average sale price to market price and to fair value, and points out that the average sale price approach has brought some problems. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011060 |
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ISSUE 12 | |
'Visiting Academics in Double Tax Treaties', Peter N. Csoklich, Oliver-Christoph Günther, Issue 12, pp. 578–602 |
infoPeter N. Csoklich, Oliver-Christoph Günther, 'Visiting Academics in Double Tax Treaties' (2011) 39 Intertax, Issue 12, pp. 578–602 | | Professors, researchers, lecturers and teachers have become more and more mobile and active throughout the world. Although science itself is borderless, visiting academics are forced to cross-national borders. As a consequence, among other issues, tax problems may arise. This article is devoted to issues concerning the taxation of visiting academics. First, it will analyse how OECD Model deals with the taxation of academics who teach and do research around the globe. Then, it will examine the specific clauses on visiting academics provided for in many tax treaties worldwide and will discuss the tax consequences of these clauses. The aim of the authors is to contribute to a better understanding of the international tax implications of temporary cross-border teaching or research activities by academics. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011061 |
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'Exchanging Information with the Developing World: A Digression on the Global Forum Exchange of Information's Interaction with Developing Economies', Tatiana Falcão, Issue 12, pp. 603–612 |
infoTatiana Falcão, 'Exchanging Information with the Developing World: A Digression on the Global Forum Exchange of Information's Interaction with Developing Economies' (2011) 39 Intertax, Issue 12, pp. 603–612 | | This article analyses the Organisation for Economic Co-operation and Development (OECD) 2002 Model Agreement on Exchange of Information on Tax Matters (hereinafter 'EOI Model' or 'EOI Model Agreement') (hereinafter 'OECD EOI Model' or 'OECD EOI Model Agreement'), providing a critical analysis on whether the provisions being upheld and defended by the OECD EOI Model is too high for developing nations that are still in need of assistance in adapting to the international standards. For that, the article drives from an interpretational paradox surrounding the two most important intergovernmental organizations on international taxation: the United Nations (UN) and the OECD. In doing so, the article strives to convey a legal, technical, and political background to this new fighting round (in political and economic interests) between developed and developing nations, amidst a worldwide, developed-world driven, crisis and recession. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011062 |
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'Contradicting Views of Exit Taxation under OECD MC and TFEU: Are Exit Taxes Still Allowed in Europe?', Tiiu Albin, Fernando de Man, Issue 12, pp. 613–625 |
infoTiiu Albin, Fernando de Man, 'Contradicting Views of Exit Taxation under OECD MC and TFEU: Are Exit Taxes Still Allowed in Europe?' (2011) 39 Intertax, Issue 12, pp. 613–625 | | Already for some years, exit taxation has been a hot topic, especially within the EU. While this form of taxation is widely accepted in the international sphere, it remains arguable whether it infringes the freedom of establishment and/or capital movement. So far, due to the decisions of the Court of Justice of the European Union (CJEU), it has been accepted that, present some specific requirements, exit taxes are still allowed in the EU. In this article, the authors argue that, in spite of what the CJEU proclaims, exit taxes are not permitted in the EU anymore. The analysis and comparison of the nature of an exit tax, mainly its tax base, and the alleged exit tax currently allowed in the EU demonstrate that, as a matter of fact, when speaking of an accepted exit tax, the CJEU is prescribing a new allocation of taxing rights between the Member States. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011063 |
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'The Luxembourg Financing Circular: Something New on the Horizon?', Frank van Kuijk, Taco Wiertsema, Issue 12, pp. 626–637 |
infoFrank van Kuijk, Taco Wiertsema, 'The Luxembourg Financing Circular: Something New on the Horizon?' (2011) 39 Intertax, Issue 12, pp. 626–637 | | On 28 January 2011, the Luxembourg tax authorities issued a circular, setting out their new policy for issuing advance pricing agreements to companies engaged in intra-group financing activities. This article analyses the circular and comments on it. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-2826
ID: TAXI2011064 |
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