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Preventing Treaty Abuse

Schriftenreihe IStR Band 101

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Daniel Blum(Hg.), Markus Seiler(Hg.), Preventing Treaty Abuse (2016), Linde Verlag, 1210 Wien, ISBN: 9783709408377

Beschreibung / Abstract


Analysis of notion, roots und measures of treaty abuse




The OECD initiative on Base Erosion and Profit Shifting has put the issue of treaty abuse and the means to counter it on top of the global political agenda. Preventing treaty abuse is therefore currently one of the most debated topics in international tax law. Diverging national legal traditions in combatting abuse both under domestic and tax treaty law have led to a globally diversified legal framework in this respect and make the OECD’s agenda to harmonize these attempts even more challenging.





The aim of this book is to analyze the notion of treaty abuse, its historical roots and the measures to counter it. The book’s topics cover a wide range of both policy and legal issues. The contributions’ main focus lies on analyzing the proposals put forward by the OECD in BEPS action items 6 and 7. In addition, this book analyzes the lessons which can be learnt from the US tax treaty policy and elaborates on the effects the intensified fight against treaty abuse will have from a Non-OECD member state perspective. Also EU law is taken into account and the question raised which impact the fundamental freedoms might have on the development of new anti-avoidance rules.

Finally the relation between domestic and treaty based anti-avoidance is analyzed in great detail, identifying the methodical problems of ensuring a sound and abuse safe legal framework.





With this book, the authors and editors hope to contribute to the discussion on selected issues of preventing treaty abuse and the challenges they present to policy makers, judges, tax administrations and tax advisers.

Beschreibung

Analysis of notion, roots und measures of treaty abuseThe OECD initiative on Base Erosion and Profit Shifting has put the issue of treaty abuse and the means to counter it on top of the global political agenda. Preventing treaty abuse is therefore currently one of the most debated topics in international tax law. Diverging national legal traditions in combatting abuse both under domestic and tax treaty law have led to a globally diversified legal framework in this respect and make the OECD’s agenda to harmonize these attempts even more challenging. The aim of this book is to analyze the notion of treaty abuse, its historical roots and the measures to counter it. The book’s topics cover a wide range of both policy and legal issues. The contributions’ main focus lies on analyzing the proposals put forward by the OECD in BEPS action items 6 and 7. In addition, this book analyzes the lessons which can be learnt from the US tax treaty policy and elaborates on the effects the intensified fight against treaty abuse will have from a Non-OECD member state perspective. Also EU law is taken into account and the question raised which impact the fundamental freedoms might have on the development of new anti-avoidance rules. Finally the relation between domestic and treaty based anti-avoidance is analyzed in great detail, identifying the methodical problems of ensuring a sound and abuse safe legal framework. With this book, the authors and editors hope to contribute to the discussion on selected issues of preventing treaty abuse and the challenges they present to policy makers, judges, tax administrations and tax advisers.

Inhaltsverzeichnis

  • BEGINN
  • Series Editor’s Preface
  • Editors’ Preface
  • List of Authors
  • Meaning and Concept of “Treaty Abuse” in DTA Law
  • Historical Development of the OECD’s Workon Treaty Abuse
  • Preventing Treaty Abuse: The United Nations’ Perspective
  • DTCs and Double Non-Taxation
  • Policy Considerations when Concluding a Tax Treaty in a Post-BEPS World
  • Tax Treaty Entitlement in Triangular Cases
  • Tie-Breaker for Dual Resident Companies
  • Limitation on Benefits Clauses – Function, Purpose and History
  • Limitation on Benefits: Qualified Persons
  • LoB – Article X (3) of the OECD MC: Active Conduct of a Business
  • Limitation on Benefits: Derivative Benefitsand Discretionary Relief
  • Limitation on Benefits and (non-)CollectiveInvestment Vehicles
  • Limitation on Benefits and EU Law
  • Limitation on Benefits: Comparison between the US LOB and the OECD LOB proposedunder Action 6
  • The Principal Purpose Test: Functioning, Elements and Legal Relevance
  • The Principal Purpose Test: Comparison with EU-GAAR Initiatives
  • OECD Minimum Standard: Comparing LOB and PPT
  • Treaty Abuse and Permanent Establishments: Proposed Changes to Article 5(3) and (4) of the OECD MC
  • Treaty Abuse and Permanent Establishments: Proposed Changes to Articles 5(5) and 5(6) of the OECD MC
  • Anti-Abuse Clause for Permanent Establishments in Third Countries
  • Treaty Abuse and Passive Income: Granting of Treaty Benefits in the Case of “Special Tax Regimes”
  • Treaty Abuse and Passive Income: Holding Period for Intercompany Dividends and Modifications to Article 13 Para. 4 OECD MC
  • Treaty Abuse and Beneficial Ownership: Latest OECD Developments
  • Relationship between Domestic GAARs and Tax Treaty Law
  • The Relationship Between Domestic Specific Anti-Avoidance Rules and Tax Treaty Law

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