The interpretation of tax treaties in relation to domestic GAARs /

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Bibliographic Details
Author / Creator:	Furuseth, Eivind, 1975- author.
Imprint:	Amsterdam, The Netherlands : IBFD, [2018] ©2018
Description:	1 online resource (xv, 329 pages)
Language:	English
Series:	IBFD Doctoral series, 1570-7164 ; volume 43 Doctoral series ; v. 43.
Subject:	Tax evasion (International law) Double taxation -- Treaties. Tax evasion. Tax evasion. Double taxation. International business enterprises -- Taxation -- Law and legislation. Tax evasion (International law) Treaties.
Format:	E-Resource Book
URL for this record:	http://pi.lib.uchicago.edu/1001/cat/bib/12650749

Hidden Bibliographic Details
ISBN:	9789087224806 908722480X 9087224796 9789087224790
Notes:	Originally presented as the author's thesis (doctoral)--University of Oslo, 2016. Includes bibliographical references (pages 297-329). Print version record.
Summary:	There are more than 3,000 tax treaties in the world, and an important question is whether these tax treaties limit a state's ability to curb undesirable tax planning by the use of domestic general anti-avoidance rules (GAARs). Many large multinational companies use essentially legitimate methods to reduce taxes. Meanwhile, governments increasingly focus on the part of this tax planning that they view as undesirable; for example, tax planning schemes where income is shifted from one classification to another and/or shifted from one taxpayer to another. Although these transactions may be legitimate in principle, tax authorities may find that the tax planning scheme "stretches" the rules and thus wish to apply their domestic anti-avoidance rules. In order to decide whether a treaty restricts the use of domestic GAARs, the treaty must be interpreted. A basic principle in tax treaty law is that if the national rules are contrary to the treaty, the tax treaty prevails. A typical example is withholding tax on dividends: if the tax treaty provides for a lower withholding tax than what follows from domestic law, the treaty withholding tax rate prevails. A question that arises, however, is whether it is of any relevance, in terms of the relationship between tax treaties and domestic law, that the domestic tax rate is determined after the application of a domestic GAAR. This book argues that when State A and State B have agreed between themselves on how the taxation between these two countries should be shared, one of the contracting states may not, after the taxing right is shared, apply the domestic GAAR to override the tax treaty. Both domestic law and tax treaty law are under constant development. An important question is to what extent these developments affect the tax authorities' ability to counter undesirable tax planning. Is it true that tax agreements signed in recent years increasingly allow the tax authorities to apply their domestic anti-avoidance rules? This book demonstrates that it is of great importance when the tax treaty was signed for determining whether the tax authorities are restricted from using their domestic anti-avoidance rule to deny undesirable tax planning
Other form:	Print version: Furuseth, Eivind, 1975- Interpretation of tax treaties in relation to domestic GAARs. Amsterdam, The Netherlands : IBFD, [2018] 9087224796

Table of Contents:

Cover
IBFD Doctoral Series
Title
Copyright
Preface
Abbreviations
Part I: Introduction
Chapter 1: Setting the Scene
1.1. The relationship between domestic anti-avoidance rules and tax treaties
Chapter 2: Possible Ways of Dealing with a Potential Conflict between Domestic Anti-Avoidance Rules and Tax Treaties
2.1. Resolving the issue
Chapter 3: Developing the Research Question
3.1. Introduction
3.2. Circumventing domestic legislation without benefiting from a tax treaty
3.3. The benefit from the transaction/arrangement follows from the tax treaty
3.3.1. Use of domestic legislation as a tool to circumvent tax treaties
3.3.1.1. Introduction
3.3.1.2. A definition in the tax treaty covers the transaction
3.3.1.3. No definition covering the transaction in the tax treaty
3.3.2. Use of a tax treaty as a tool to circumvent domestic legislation
3.3.2.1. Treaty shopping
3.3.2.2. Directive shopping
3.3.2.3. Back-to-back transaction
3.3.2.4. Other distributive rule
3.4. The relevance of tax treaty GAARs and/or SAARs for the application of domestic anti-avoidance rules
Chapter 4: Outline of the Book
4.1. Explanation
Chapter 5: Legal Sources
5.1. Introduction
5.2. OECD Comm.
5.3. OECD reports and other reports
5.4. UN Comm. as a source of law in the interpretation of tax treaties based on the OECD MC
5.5. Domestic case law as a source of law
Chapter 6: Delimitations
6.1. Tax evasion and sham
6.2. EU/EEA law
6.3. Analysis of domestic anti-avoidance rules
6.4. The concept of beneficial owner
6.5. Formalities
Part II: OECD and UN Documents Relevant for the Applicability of Domestic Anti-Avoidance Rules in a Tax Treaty Situation
Chapter 7: Introduction
7.1. The relationship between domestic anti-avoidance rules and tax treaties
Chapter 8: Historical Overview of OECD Comm. Art. 1 and UN Comm. Art. 1
8.1. OECD Comm. Art. 1
8.1.1. Abuse-of-treaty and domestic anti-avoidance rules
8.1.2. Object and purpose
8.1.3. Is there an inherent "guiding principle" in tax treaties?
8.1.4. 2003 OECD Comm. and BEPS
8.2. UN Comm. Art. 1
8.3. Summary
Chapter 9: Interpretation of the Treaty in its Context: The OECD Comm. and the UN Comm.
9.1. OECD Comm. Art. 1 views on domestic anti-avoidance rules
9.1.1. OECD Comm. Art. 1
In general
9.1.2. OECD's use of the term "facts"
Various interpretations
9.1.3. The applicability of domestic anti-avoidance rules in relation to articles in the OECD MC other than OECD MC Art. 1
9.1.4. The relevance of the OECD Comm. 2003 and 2017 revision for pre-2003 and pre-2017 treaties
9.1.4.1. Introduction
9.1.4.2. Changes in the Commentary relating to changes in the OECD MC
9.1.4.3. Changes in the Commentary without any changes in the OECD MC
9.2. UN Comm. Art. 1 views on domestic anti-avoidance rules
9.2.1. In general

The interpretation of tax treaties in relation to domestic GAARs /

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