bluuebunny/crossref_metadata_2025_split huggingface dataset:
Taxation of Foreign Institutional Investors in India: The Hanging Fire
Authors: Jaiswal Anindita 
Published: February 2022

Foreign Institutional Investors (FIIs) have always remained influential players in India's investment market. However, India's tax regime in respect of FIIs has constantly undergone turbulent phases. To start with, the controversy pertained to classification of FII income under the income heads of business income versus capital gains, which classification was critical considering its tax chargeability and tax rate implications under India's direct tax laws. While this debate appears to have been put at rest by the 2008 ruling in LG Asian Plus Ltd. v. ACIT, uncertainties for FIIs in the context of non-resident taxation in India followed. The first limb of this uncertainty is found in the proposed General Anti-Avoidance Rules (GAAR) which seeks to implement the 'commercial substance' test if the Indian tax authorities believe that the transaction was undertaken only to avoid taxes or lacked commercial substance. This is proposed to apply notwithstanding that the transaction was routed through a tax friendly jurisdiction, and as per India's tax treaty with such jurisdiction, no tax liability arises in India. While effectuating of GAAR has been pushed back to 2016, the retrospective amendments of 2012 undertaken in India's Income Tax Act, 1961, pursuant to the Vodafone ruling by India's apex court, has brought FII taxation under radar. The amendment, which adopted the 'look through' approach against the 'look at' approach, may expose investors/P-Note Holders behind the FIIs to taxation in India, notwithstanding that the FII may be located in jurisdiction like Mauritius, with whom India has a favourable tax treaty. Also, as no time limit is prescribed for retrospective application of the amendment, the whip will keep hanging on FII investments time immemorial. Expert committees have been set up to scrutinize and settle these tax controversies and to create conducive tax environment for foreign investors in India, which is of utmost significance both, from an investment and economic standpoint. However, with the foregoing retrospective amendment in effect, it is to be seen how Indian authorities pacify FIIs from drawing out their investments from India amidst the tax qualms and mitigate the uncertainties and associated risks. This article discusses India's FII tax regime in light of the foregoing controversies, the prevailing uncertainties and challenges, their impact on FII investments in India, and India's consequent exposure to potential actions under bilateral investment treaties.
National Tax Law - Under Influence of EU Rules for Freedom of Movement of Goods
Authors: Thygesen Jette 
Published: February 2022

This article deals with the European Union (EU) law issues that an EU Member State must be aware of when introducing national taxes. In principle, fiscal powers lie with the individual EU Member States, but membership of the EU involves obligations to comply with a number of rules. The EU framework for drawing up and implementing tax legislation is defined in the Treaty on the functioning of the European Union (TFEU), secondary EU law, the case law of the Court of Justice of the European Union (ECJ) and the European Commission's implementing decisions. The focus of this article is in an analysis of the EU rules which Member States must comply with when introducing a tax or charge. At the same time, the article will briefly illustrate the possibilities for obtaining approval of tax arrangements that clearly constitute a State aid scheme. The provisions in the TFEU that are relevant in this connection are Article 30 and Articles 34-36, on the free movement of goods, Article 107 on State aid, and Article 110 on fiscal provisions.
Operating Base and Taxation for Foreign Airline Companies Operating in Italy
Authors: Mattia Salvatore , Rizzardi Raffaele 
Published: February 2022

Article 38 of the so-called Development Decree provided a definition for 'operating base' for airline companies operating in the passenger traffic sector by means of an operating bases system. The said provision aims to prevent controversies that had already arisen in the past with airline companies, which adopted the above business model, assimilating operating bases equipped with infrastructures and service staff to a permanent establishment and, therefore, compelling the said companies to comply with national tax and social security rules and regulations.
The EU Integration Process and Direct Taxation from a Southeast European Perspective: Part II Impact of Accession Negotiations on Direct Taxation in Acceding Countries
Authors: Popovic Dejan , Kostic Svetislav V. 
Published: February 2022

Bearing in mind the very limited scope of the acquis which is supposed to be implemented within the Stabilization and Association Agreement framework, the second part of this article is dedicated to analysing the impact of the accession negotiations on direct taxation in the Southeast European countries. Although the closing of the tax chapter during the accession negotiations with a particular acceding country should imply the required full alignment of its direct tax legislation with the acquis, the reality in numerous cases in the previous enlargement processes is far from the expected. In the area of European Union (EU) secondary tax legislation analysis has shown that the accession procedure will, in most cases, ensure the timely and full compliance of an acceding country with its requirements. However, the alignment of acceding countries legislation with the part of EU direct tax law stemming from the negative integration processes is much more demanding. In essence, there can be no absolute certainty that every provision of an acceding country's direct tax legislation has been placed under sufficient scrutiny during the tax chapter negotiations process and that its required full alignment with the case law of the European Court of Justice (ECJ) has been ensured. The authors conclude with an observation that the various approaches applied to different countries which have attempted or are attempting to become EU Member States within the accession process, beg the question of the objectivity of the process and how important is the role of political influences and interests on the success of a particular country in joining the EU.
The Combined Application of the Fundamental Freedoms and the EU State aid Rules: In Search of a Way Out of the Maze
Authors: Staes Mélanie 
Published: February 2022

With this article, the author aims at investigating the possible combined application of the fundamental freedoms and the EU State aid rules. The author takes as a concrete example two regional Belgian tax measures, namely the Flemish winwinloan-regime and the Walloon CIW-regime. First, some general issues regarding fiscal State aid are considered, in order to provide the reader with the background necessary to understand the reasoning in the following sections of the article. Next, the author investigates the Belgian regional tax regimes on their compatibility with EU law. In a last and main part, the combined application of the fundamental freedoms and the EU State aid rules and its consequences are considered.
Open Door Tax Policy for Foreign Direct Investments in South Eastern Europe: Tax Incentives and Flat Tax in Action
Authors: Kjoseva Elena Neshovska , Maksimovska-Veljanovski Aleksandra , Pendovska Vesna 
Published: February 2022

Open door tax policies have been offered as a key ingredient for attracting foreign capital in the region of South Eastern Europe. In the last decade, these countries have strived to respond to the global tax competition and to create attractive business environments for economic growth and foreign direct investments (FDI). Promptly, seven of nine South Eastern European countries introduced flat taxes for corporate income, and re-modeled fiscal surrounding for FDI. Were these transformative policy decisions, or just cosmetic alterations to the existing conditions for doing business? How much impact have the flat tax and tax incentives had on the FDI? This article analyses open door tax policies, in particular the nexus between, on the one hand, the flat tax and related tax incentives, and on the other, the FDI. A comparable measure of each country’s implementation of open door tax policy is created, and countries are analysed separately, with focus on the legal and economic aspects. Innovative methodology of awarding points to each determinant of the open door tax policy is applied in combination with measuring of political and legal variables, that drives the conclusion about the significance of each factor for FDI in the Region
Approaches towards the Application of Tax Incentives for Cross-Border Philanthropy
Authors: Buijze Renate 
Published: February 2022

Most governments of high income countries stimulate domestic philanthropy. For philanthropy crossing borders, however, governments are less consentient. These varying standpoints are reflected in the tax legislation of countries. In many of the countries concerned, donations to domestic charitable causes are rewarded with a tax incentive. When a donation crosses borders, however, the tax incentive does not always apply. This article examines the different approaches governments hold towards the application of tax incentives in cross-border situations and the underlying rationales. Through the analysis of the relevant tax sources, tax jurisdictions are classified into four common models that summarize the spectrum of different approaches governments hold. They vary from jurisdictions that support cross-border donations with a tax incentive to governments that restrict tax incentives to donations within the country and two models that represent the more moderate approaches between these extremes.
Comparing Tax Entities in a European Perspective, Part II
Authors: Ronfeldt Thomas 
Published: February 2022

Against the backdrop of recent practices of the Court of Justice of the European Union (CJEU), these articles will seek to analyse which group structures are assumed to be comparable and are thus tax entities protected by the European Union (EU), and which group structures are assumed to be non-comparable and thus do not constitute tax entities protected by the EU. This is covered in two consecutive articles. This is the second article. The first article was published in INTERTAX vol. XX. Due to unforeseen circumstances with the publication, it has been necessary to publish this part II of a double article before part I . Part I will be published in the next issue of INTERTAX.
Tax Treaty Interpretation: Interaction Between Article 3(2) Organisation for Economic Co-Operation and Development Model Convention and Article 31 Vienna Convention
Authors: Velásquez David O. Corredor 
Published: February 2022

Tax treaty interpretation is the cornerstone for the correct application of a convention. Due to its undeniable importance it is vital to know how to approach the intricate world of tax treaty interpretation. The objective of this article is to understand the interaction between Article 31 of the Vienna Convention on the Law of Treaties (VCLT) and Article 3(2) of the Organisation for Economic Co-operation and Development Model Convention (OECDMC), the way they interact and when to apply each of them, with special reference to the concept of ‘context’ which is used in both articles. The article addresses the nature and scope of the subject of interpretation, the interpretation rule in the VCLT and in Article 3(2) of the OECDMC. It further deals with the interaction between these two sets of rules, structuring their relationship in scenarios. The conclusion provides a brief overview of the main findings together with proposals on how to deal with some issues and a final statement that pursues for the enrichment of the research on tax treaty interpretation. There is no part of the law of treaties which the text-writer approaches with more trepidation than the question of interpretation
Developments in the Analysis of the Tie-Breaker Rules for Individuals Under Article 4 (1) OECD
Authors: Olivier Timothy Borg 
Published: February 2022

Since access to a treaty is dependent on the taxpayer being resident in one of the Contracting States, the classification of a taxpayer as resident becomes of utmost importance. Article 5 of the OECD Model Convention, defines the term ‘resident’, and also provides a series of tests which should apply when a taxpayer is a dual resident. None of the tests put forward in the tie-breaker rules for individuals are defined by the treaty, and the Organisation for Economic Cooperation and Development (OECD) commentaries fail to provide much guidance. For many years, an article by John Avery Jones et al., entitled ‘Dual Residence of Individuals: The Meaning of the Expressions in the OECD Model Convention’ (1981), has been adopted by practitioners in understanding the concepts portrayed in such tie-breaker rules. This article will explore whether the principles put forward in the above-mentioned article are still relevant in todays developed world, and if not, what interpretation should be given to these concepts.
Protection of the Taxpayer in the Information Exchange Procedure
Authors: De Flora Menita Giusy 
Published: February 2022

Economic globalization and the interdependence of tax authorities highlight the limits of strict national approaches to combating fraud, tax avoidance and evasion. In this context, mutual assistance between tax authorities, in search of direct information to enable the control on the fulfilment of tax obligations by taxpayers, has assumed an increasingly central role. However, the information exchanged through the different stages and tools of administrative cooperation in tax matters should be adequate regarding the various interests involved. On the one hand, those of the States to both exercise their power of taxation as well as fight tax avoidance and evasion; while on the other, those of the taxpayers in the correct use of this instrument to safeguard their rights.
Designing an Inclusive and Equitable Framework for Tax Treaty Dispute Resolution: An Indian Perspective
Authors: Rao Shreya , Govind Sriram 
Published: February 2022

Tax treaty dispute resolution is neither efficient nor equitable at the moment. This is particularly problematic in light of countries' adopting aggressive tax policies to tackle base erosion and profit shifting practices, resulting in an increase in disputes. The MAP has had limited success, while discussions on new mechanisms to supplement the MAP (such as tax treaty arbitration) have proved controversial and have failed to bring developed and developing countries to a consensus. India has been one of the countries in vocal opposition to tax treaty arbitration, even as it staggers under the sheer volume of international tax disputes. Against this backdrop, this article proposes a workable means of tax treaty dispute resolution, with specific focus on the concerns expressed by India. The authors first analyse available domestic and international mechanisms in India for resolving disputes, including the MAP under tax treaties. The authors then evaluate the pros and cons of non-binding or binding solutions to supplement the MAP under tax treaties. Next, they examine concerns raised by developing countries, with specific reference to Indian constitutional and legal concerns as regards a binding dispute resolution regime. In light of this analysis, the authors propose a possible institutional framework for tax treaty dispute resolution tailored for India that takes into account these concerns and attempts to be both inclusive and equitable.
Debate on the US Tax Reform and the EU ATAD: Can GILTI + BEAT = GLOBE?
Authors: Herzfeld Mindy 
Published: February 2022

The OECD is moving forward with consideration of a minimum tax as part of its solution to taxation of the digital economy. Part of a template for such a minimum tax may be the version enacted by the United States (US) in 2017 as an expansion of its Controlled Foreign Corporation (CFC) regime, known as Global Intangible Low Taxed Income (GILTI). But the OECD version will undoubtedly be different from the US iteration. It’s likely that it would also include some aspects of a minimum tax being proposed by other OECD members such as Germany and France, namely a tax on outbound payments, in addition to a CFC-type regime. The United States also enacted an outbound minimum tax in 2017, known as Base Erosion Anti-Abuse Tax (BEAT). The two-part minimum tax being pursued by the OECD – a minimum tax based on a CFC regime plus an outbound minimum tax that’s a variation on the BEAT – has been referred to as GLOBE (global anti erosion) (See S. Soong Johnston, Germany, France Explore GLOBE Proposal to Tax Digital Economy, 92 Tax Notes Int’l 782 (2018)). This article summarizes the two features of the US 2017 tax reform (known as the Tax Cuts & Jobs Act (TCJA) (The formal name is The Act to Provide for Reconciliation Pursuant to Titles II and V of the Concurrent Resolution on the Budget for Fiscal Year 2018, Pub. L. No. 115–97.)) that may be incorporated into a global minimum tax, namely GILTI and BEAT, from the perspective of how such provisions might be adapted to work in a global setting. It considers the challenges to taxpayers and policy makers raised by the US law as enacted, and the attempts in recently issued regulatory guidance to address some of these concerns. It compares and contrasts the provisions enacted by the US Congress with a number of parallel European developments, including the EU Anti-Tax Avoidance Directive (ATAD)’s CFC rules and the German royalty deduction barrier. Adaption of the minimum tax components of the Tax Cuts & Jobs Act for worldwide use will require careful understanding of the policy choices, as well as the mistakes made, by the TCJA drafters in designing the regime, in order to ensure that they are not repeated.
The Hybrid Financial Instruments: The Effects of the OECD BEPS Action 2 Report and the ATAD
Authors: Peeters Bart , Vanneste Lars 
Published: February 2022

This contribution critically assesses the complex hybrid mismatch rule concerning financial instruments as developed under the OECD BEPS action 2-proposal and subsequently implemented in the Anti-Tax Avoidance Directive (ATAD). Both approaches are compared, starting with a profound analysis of the OECD initiative. Given their obligation to implement the European initiative in domestic tax law by 1 January 2020, domestic legislators now have to deal with the exact meaning of the Directive. However, the ambiguous text incites uncertainties and will definitely raise incoherencies between the several EU-Member States.
Both international initiatives clearly rather aim to counter tax avoidance, instead of creating coherencies: only double non-taxation is envisaged and the taxpayer is confronted with a rather technical, hierarchical set of rules increasing his tax burden, because of an objective incoherent outcome. The solution is hardly inspired by the fundamental idea of BEPS to tax income where it has been generated. Given this rather mechanical approach the question is finally raised whether restrictions on the freedom of establishment and the free movement of capital can be justified. However, as this article focuses on the task for domestic legislators, this ultimate question has not been substantially investigated.
hybrid mismatches, BEPS, ATAD, financial instruments
May Be Taxed for Whatever Reason - Conflicts of Qualification: The Discussion Is Finished
Authors: Resch Richard Xenophon 
Published: February 2022

This Article counters the view that the OECD approach to qualification conflicts does not resolve all cases. The letter view, which was initially submitted by Klaus Vogel and has not been refuted until today, is based on the assumption of a fundamental difference between distributive rules reading ‘shall be taxable only’ and those reading ‘may be taxed’. When the interpretative principles enshrined in the Vienna Convention on the Law of Treaties (VCLT) are applied to that therminology it transpires that the difference is not fundamental but merely a matter of degree. This is confirmed by the French text of the Model. Thus, the principles enshrined in Article 23(1) apply to all distributive rules, which is confirmed by the OECD Commentary on Article 23. In consequence, the OECD approach covers all of the qualification conflicts that are attributable to States applying different distributive rules because of differences in their domestic laws, without exception.
OECD Model, tax treaties, interpretation, conflicts of qualification, Article 3(2), Article 23, may be taxed, shall be taxable only
What Is International Double Taxation?
Authors: Ismer Roland , Ruß Julia 
Published: February 2022

With the recent entry into force of the European Dispute Resolution Directive, the term international double taxation has gained legal relevance. This calls for revisiting the definition of international double taxation. This contribution presents the main approaches in the scholarly literature and demonstrates that the widely accepted definition of international double taxation is imprecise. Considering the function of tax treaties, it should instead be understood as a specific disadvantage to cross-border situations resulting from taxation by two or more states. Thus, neither discrimination by solely one state nor virtual double taxation constitute international double taxation in this context. The opposite is valid for intertemporal double taxation when new treaty rules must be created. The European Dispute Resolution Directive accords with the discrimination approach advocated here and substantiates the requirement of discrimination through three different variants.
International double taxation, dispute resolution directive, juridical double taxation, economic double taxation, virtual double taxation, intertemporal double taxation, credit method, exemption method, single taxation, double non-taxation.
Tax Law and the Transfer of Losses: A European Overview and Categorization
Authors: Spengel Christoph , Bührle Anna Theresa 
Published: February 2022

Most of the European Member States employ anti-loss trafficking rules. They aim to prevent the acquisition of mere corporate shells with high tax loss carryforwards for the tax asset to be utilized in profitable companies. However, other corporations can unintentionally be affected by the antiabuse regulations if there is a change in ownership or activity. The transfer restrictions have been argued to impair start-up financing, as investors are faced with the risk of losing accumulated loss carryforwards in the corporation upon the entering of new or the capital increase of existing investors.
WTO, preferential trade agreements, subsidies, state aid, tax competition.

This study provides an overview over the design and development of loss transfer restrictions in the EU28 over a time period of nineteen years (2000–2018). Different aspects of the regulations are analysed against the background of their impact on start-ups. Finally, the rules are categorized with respect to their strictness. Over time, more countries introduced restrictions. Simultaneously, the regulations became more lenient, offering start-ups more opportunities to maintain their loss carryforwards and, therefore, decreasing the risk for investors.
WTO, preferential trade agreements, subsidies, state aid, tax competition.