bluuebunny/crossref_metadata_2025_split huggingface dataset:
Applying Modern, Disruptive Technologies to Improve the Effectiveness of Tax Treaty Dispute Resolution: Part 1
Authors: Turcan Laura , Govind Sriram , Dimitropoulou Christina 
Published: February 2022

This comprehensive two-part article addresses how modern, disruptive technologies can be used to improve the effectiveness of tax treaty dispute resolution. It is clear that international tax dispute resolution needs improvement. The OECD, the European Union and the United Nations have all recently taken measures to this effect by promoting the prevention and timely resolution of treaty-related disputes. However, none of these recommendations considers technology. In this context, this article examines whether the emergence of new and disruptive technologies such as artificial intelligence, shared-data platforms, cloud-based solutions and blockchain could complement the mutual agreement procedure (MAP) and supplementary arbitration and render them more effective by speeding up the resolution, reducing costs and establishing trust between tax administrations and taxpayers. To answer this question, in Part 1 of this article, the authors briefly analyse the main drawbacks of the existing tax treaty dispute resolution process from the perspective of various stakeholders. Next, the article focuses on the fundamental features of a few significant types of technology and analyses how they could improve this process. In Part 2 of this article, the authors will use the analysis from Part 1 to make some specific suggestions as to how the technologies discussed can be used to improve the MAP and supplementary solutions, with an aim to encourage the above-mentioned policy organizations to consider the potential of disruptive technologies in their work.
Mandatory Binding Arbitration in the BEPS Multilateral Instrument
Authors: Bravo Nathalie 
Published: February 2022

Part VI of the MLI establishes the mandatory binding arbitration procedure. Since no consensus was reached among the participants in the BEPS Project on the adoption of the mandatory binding arbitration procedure as a mechanism to ensure the timely resolution of MAP cases, the treaty makers of the MLI designed flexible provisions for its implementation. Part VI of the MLI combines the use of optional provisions, alternative provisions and reservations. Thus, the question arises whether the MLI achieves a coordinated effect in regard to the implementation of the mandatory binding arbitration procedure, in spite of the high level of flexibility offered to its parties and signatories. For answering this question, the article provides an in-depth analysis of the mandatory binding arbitration procedure adopted in the MLI and the policy reasons behind the decisions taken by the treaty makers to design the procedure in the form it is found in the MLI. Additionally, it illustrates how the mandatory binding arbitration procedure of Part VI of the MLI works with a focus on the effects of the reservation clauses and optional provisions that allow parties to customize the mandatory binding arbitration procedure. And, it explains how parties and signatories have availed themselves of the flexibility provided by the MLI in connection with the mandatory binding arbitration procedure.
Starbucks and Fiat: Arm’s Length Competition Law
Authors: Wattel Peter J. 
Published: February 2022

The EU Commission may have lost Starbucks on the burden of proof, but it has clearly won that State aid case on principle: the Commission is competent to check autonomously whether cross-border intragroup transactions conform to conditions that would obtain in open competition between independent legal entities, irrespective of whether any arm’s length principle has been incorporated in the national law of that State. Even agreement with OECD transfer pricing methods does not per se produce immunity from Commission scrutiny, as in State aid law, the arm’s length principle is not so much a principle of international division of taxing jurisdiction to protect a State’s tax base against BEPS, but rather a principle of competition law to safeguard inter-entrepreneurial and interstate equality, preventing EU Member States from selectively allocating away tax base into voids in order to attract multinationals. Apple and Ireland have thus already lost their cases on principle, but may still win on the burden of proof and the evaluation of the evidence adduced. The Starbucks and Fiat cases seem contradictory as regards the acceptability of residual calculation.
State aid, arm’s length principle, EU Commission competence, residual calculation
CJEU in KPC Herning: The Supply of Land with a Building to Be Demolished Is not Necessarily a VAT Taxable Supply of Building Land
Authors: Vastmans Stijn 
Published: February 2022

On 4 September 2019, the Court of Justice of the European Union delivered an interesting judgment on a real estate transaction relating to the sale of land together with a building for which the parties had the intention of demolishing the building to make room for a new building. (DK: CJEU 4 September 2019, Case C-71/18, KPC Herning, ECLI:EU:C:2019:660.) Although this judgment is based on the specific facts of the case, the Court has provided some interesting guidance on the concept ‘building land’ and, more generally, the distinction between multiple or single supplies for Value Added Tax purposes.
VAT and real estate transactions, Single and multiple supplies, VAT exemption for transfer of land and existing building, VAT taxable supply of building land, Parties’ intention, Demolition and reconstruction, Case KPC Herning, Case Don Bosco Onroerend Goed
Effectiveness of Regulatory Taxes: Control Through Proceedings v. Judicial Control: A German Constitutional Perspective
Authors: Hey Johanna 
Published: February 2022

Effectiveness control is key for any evidence-based tax policy. This applies in particular to regulatory taxes. Often, however, there is a lack of systematic monitoring of the achievement of objectives. The present article examines the legal consequences of failing to achieve the objectives and discusses which legal instruments can be used to ensure that legal evaluations are carried out.
Regulatory taxes, tax subsidies, effectiveness control, evaluation, impact assessment, constitutional protection against ineffective regulatory taxes
Case Law Note: EU VAT in Jeopardy: Clues from the Unitel Case (C-653/18)
Authors: Zawodsky Florian S. , Mikula Pawel 
Published: February 2022

The Court of Justice of the European Union (CJEU or the Court) has had multiple opportunities to rule on the issue of fraud associated with value added tax (VAT). For instance, in the Missing Trade Intra-Community Fraud context, exemplarily with the United Kingdom: CJEU 12 January 2006, Joined Cases C-354/03, C-355/03 and C-484/03, Optigen and Others, ECLI:EU:C:2006:16, or in cases when only invoices confirmed that transactions took place, see exemplarily HU: CJEU 21 June 2012, Joined Cases C-80/11 and C-142/11, Mahagében and Dávid, ECLI:EU:C:2012:373. While many aspects of the concept of fraud have already been clarified in the Court’s jurisprudence, some of them remain to be specified and clarified. In the Polish case Unitel, the Court further elucidated the consequences of fraud for (innocent) parties in the supply chain (PL: CJEU 17 October 2019, Case C-653/18, Unitel, ECLI:EU:C:2019:876.). In particular, the case clarified when tax authorities may deny the right to zero-rate exports.
Court of Justice of the European Union, VAT, VAT fraud, Export, Tax avoidance
Country Note: Legal Framework of Direct Taxation in the Eurasian Economic Union: Specific Ways of Harmonization and Comparison with Existing European Models
Authors: Ponomareva Karina 
Published: February 2022

The article considers directions of harmonization in the area of direct taxation in the Eurasian Economic Union (EAEU). The article also examines the actions of the EAEU Member States on the implementation of the Base Erosion and Profit Shifting (BEPS) Action Plan in national tax legislation.
Nigeria, local government, local people, tax, taxing powers, impose tax, collect tax, federalism, socio-legal problems; lack of financial authority.
The author comes to the conclusion that the EAEU Treaty and other supranational acts show few limits of tax harmonization and mainly in the area of indirect taxation. In the area of direct taxation, the establishment of the principle of non-discrimination and convergence in the area of taxation of personal income are elements of harmonization in the area of direct taxation. At the national level, Member States have set the same taxes, including corporate income tax and personal income tax. However, in the absence of supranational acts of secondary law, national tax systems differ significantly. This is caused by the fact that the area of direct taxation is highly sensitive from the positions of tax sovereignty of Member States.

The important part of the survey is the comparative study. The European Union (EU) has become the most comprehensive form of interstate integration. However, financial and political crises in Europe have shown the need to give up some of the sovereign rights of Member States in order to ensure a coherent policy. The European experience is of great theoretical and practical importance for creating new legal mechanisms of tax regulation in the EAEU. The models of functioning of the EAEU Court and of the European Court of Justice (ECJ) in the area of taxation are also compared in the article.
Nigeria, local government, local people, tax, taxing powers, impose tax, collect tax, federalism, socio-legal problems; lack of financial authority.
Policy Note: The Study of the BEPS 4 Minimum Standards as A Legal Transplant: A Methodological Framework
Authors: Mosquera Valderrama Irma Johanna 
Published: February 2022

This policy note aims at setting a methodological framework for the study of legal transplants in taxation and more specifically to the use of the comparative legal theories of legal transplants, legal (tax) systems and legal (tax) culture to study the implementation of the Base Erosion and Profit Shifting (BEPS) 4 Minimum Standards. Attention will be given to the following questions who is participating as donor or recipient and why? how the tax systems and tax culture (actors) influence the process? and what are the rules that will be implemented?
By using comparative legal theories, this policy note allows to explain the reasons why countries decided to implement the BEPS 4 Minimum Standards. These reasons are for instance, prestige, political incentives, and chance and necessity. Furthermore, the study of the differences in tax systems and tax culture can allow policy makers in international organizations and countries to understand the transplantation process and the development of tax rules implementing the BEPS 4 Minimum Standards. The theory of tax systems will take into account the differences between civil law, common law and mixed legal systems. The theory of tax culture will take into account the behaviour, values and attitudes of the relevant actors (the courts with tax competence, tax law-makers, taxpayers, tax administration, business associations, tax advisors, scholars, and civil society Non-Governmental Organization (NGOs.). In order to illustrate these differences, this policy note has addressed the implementation of the Principal Purpose Test in the countries participating in the BEPS Inclusive Framework.
Legal transplants, tax culture, BEPS, global tax governance, principal purpose test, international taxation.
COVID-19 and Fiscal Policies: Tax Policy and the COVID-19 Crisis
Authors: Pirlot Alice , Vella John , Collier Richard 
Published: February 2022

This article provides some preliminary thoughts on tax policy and the COVID-19 crisis. In the first part, it discusses fiscal measures available to policymakers in response to the COVID-19 crisis. The role of taxation will evolve over the different phases of the pandemic: measures have already been adopted to respond to the crisis in the short-term, but questions remain as to the types of measures that should be adopted in the medium and longer-term. In the second part, this article discusses the current and possible future effects of the pandemic on international tax policy.
COVID-19, tax policy, international tax reform, transfer pricing, profit shifting, tax and the digital economy.
Case Law Note: Arm’s Length Net Income for German Withholding Tax and Tax Declaration Purposes
Authors: Andresen Ulf 
Published: February 2022

One hundred years after its creation in 1920, (DE: section 49 (1) no. 6 had originally been created as section 2 no. 2 of the ITA 1920; its content had been moved to the current section 49 in 1934: see M. Stöber, W. Anissimov, I. Heß, G. Hiller, T. Kaligin, J-P. Naujok, section 49, no. 1902 in: Income Tax Act, Commentary, (F. Lademann ed. Publisher, 2020; formerly commented on by Jü. Lüdicke). ) section 49 (1) no. 6 and its 1994 derivative no. 2f Income Tax Act (ITA) are becoming the focal point of a heated discussion, primarily among US headquartered multinationals. The reason for this development is that the Big Four, as their auditors, are forcing their audit clients to build reserves for the potential application of sec. 49 (1) no. 6/no. 2f ITA.( For years after 2005, DE: section 49 (1) no. 2f ITA is the only applicable provision as it reflects the change in scope of DE: section 8 (2) Corporation Tax Act to only assume a business activity by nature of a corporate body if such corporate body was subject to unlimited tax liability in Germany. ) The reason is that this provision may apply to a specific type of cross-border intra-group transaction into which US headquartered multinationals have entered. Transactions in scope are the sale or licensing of intellectual property that a larger number of US multinationals have entered into in the aftermath of the introduction of the BEPS measures to the extent that they have a German nexus.(OECD, Final Reports on Actions 1 through 15, OECD/G20 Base Erosion and Profit Shifting Project, (OECD Publishing, 2015), https://www.oecd.org/tax/beps/beps-actions/ (accessed 28 May 2020). These measures have been translated into national tax provisions, e.g. the German ATAD Transformation Act, Bill as of 24 Mar. 2020, and treaty provisions through the OECD, Multilateral Convention to implement Tax Treaty related Measures to prevent Base Erosion and Profit Shifting (OECD Publishing, 2016) (Multilateral Instrument or MLI), available at, https://www.oecd.org/tax/treaties/multilateral-convention-to-implement-tax-treaty-related-mea sures-to-prevent-beps.htm (accessed 28 May 2020)).
Limited tax liability, withholding tax, Germany transfer pricing, taxation at source sale, transfer of intellectual property (IP), licensing of IP, intellectual property, cost plus method, routine patent/trademark registration services.
Group Transactions, Transfer Pricing and Litigation: Evidence from Portugal
Authors: Martins António , Correia Sandrina , Taborda Daniel 
Published: February 2022

In Portugal, in the wake of the introduction of tax arbitration in 2011, courts have ruled in several cases involving transfer pricing (TP) judicial conflicts. The research questions that this article addresses are: What are the core issues in TP litigation in Portugal? Do they follow international trends? What is the predominant outcome of arbitration rulings, and why do tax authorities experience defeat so many TP cases?
Based on the total (thirty-two) TP arbitration cases decided in Portugal from 2012 to 2017, the authors find that tax administrations (TA) were successful in only three cases. Courts also found that tax audit reports often misused the comparability concept, and the methods that were used were also often disallowed by arbitrators. Therefore, TAs should proceed with caution in audits and seek robust foundations to TP adjustments. Multinational groups must also carefully substantiate their related party transactions in order to minimize audit risk and compliance costs of taxation.
Group transactions, transfer pricing, tax arbitration, Portugal.
Country Note: Combating Tax Avoidance In Russia: Historical Perspective And Current Trends
Authors: Podshivalova Daria 
Published: February 2022

The development of anti-avoidance techniques in Russia has historically had some difficulties. The nascent development of anti-avoidance techniques in the pre-revolutionary period was actually suspended by the tax policy of the Soviet Government. After the dissolution of the Soviet Union, Russia faced significant socio-economic transformations that required a reform of the taxation system. The beginning of the XXI century in Russia was characterized by the formation of a modern tax system and intensification of the search for new effective anti-avoidance techniques. In the 1990s, the problem of tax avoidance became extremely acute on the Russian tax policy agenda. Due to the absence of the developed tax legislation and unstable federal government, tax avoidance threatened the economic security of the state and could even have undermined its social and economic development due to budget losses. According to various estimates, as a result of massive tax avoidance in the 1990s, Russia annually lost approximately 30% of the payments that were due. Over the past decade, the mechanism for combating tax avoidance in Russia has been remarkably improved. Currently, the Russian tax authorities are making significant progress in applying various anti-avoidance techniques. The two semantic parts of this article reveal the Russian efforts in the formation of effective anti-avoidance techniques. The first part of the article is devoted to the Russian approach to the definition of ‘tax avoidance’ and outlines the main stages of the development of anti-avoidance techniques. The second part of the article deals with the major financial techniques successfully used in Russia, including judicial, statutory, tax treaties, organizational, and other means for countering tax avoidance.
Gig economy, sharing economy, crowd work, online platform, gig worker, employment status, personal service company (PSC), misclassification, deemed employment relationship, independent contractor.
Beneficial Ownership Interpreted, To What Extent Are the OECD and the EU on the Same Wavelength?
Authors: Hamra C. , Korving & J.J.A.M. 
Published: February 2022

The interpretation of the concept of ‘beneficial ownership’ in the field of cross-border taxation is the subject of dispute among the international community. From 1977 onwards, a major question is how beneficial ownership should be defined for tax treaty purposes. After the concept of beneficial ownership was included in the EU’s Interest and Royalties Directives, the same question arose for the interpretation of the concept from an EU perspective. The authors examined both the Organisation for Economic Cooperation and Development (OECD) and EU concepts separately from a historical and teleological perspective and attempted to find common grounds for interpretation, especially after the Court of Justice of the EU (CJEU) judgment in the Danish cases. They conclude their research by suggesting potential ways forward for a better alignment of the OECD’s and EU’s interpretation of the beneficial ownership concept.
Beneficial ownership, Interest and Royalties Directive, tax treaties, abuse, treaty interpretation, EU, OECD, interest, dividend, royalties.
Case Law Note: Bad Debts Relief (Almost) Always Available? A Glance at Case Law of the CJEU
Authors: Mikula Pawel 
Published: February 2022

The Court of Justice of the European Union (CJEU or the Court) recently ruled in the Polish E. Case1 that not being registered for VAT purposes or being subject to insolvency proceedings cannot be an obstacle for a reduction of a taxable base in the event of a lack of payment (bad debts adjustment). The resolution reached in this judgment was to be expected taking into consideration the court’s approach in its numerous decisions that have been rendered during a couple of previous years. The case seems to affirm a relatively coherent approach in case law leading up to the establishment of certain rules concerning bad debts adjustment in the field of VAT. This case note discusses those cases and summarizes the rules that were settled. The topic gains significance in times of restrictions connected with Coronavirus disease 2019 (COVID-19) in which many businesses have become insolvent and thus may not be able to pay their debts.
Court of Justice of the European Union, VAT, taxable base, bad debts.
Country Note: Taxing The Income Of Digital Non-Resident Companies Under The ‘Significant Economic Presence’ (Sep) Rules In Nigeria
Authors: Obayemi Olumide 
Published: February 2022

The digital economy poses challenges to the traditional international corporate tax rules. Contrary to ‘source rules,’ digital multinational companies (MNCs) – such as Facebook, Netflix, Yahoo, Google, Amazon, etc. – can avoid tax from source/market countries where value is created because they have no permanent establishment (PE) in such countries.
This position is damaging to developing countries, including Nigeria, that rely heavily on taxes on revenue sourced within their jurisdictions. Therefore, in January 2020, Nigeria responded by amending its corporate tax rules to introduce the ‘significant economic presence’ (SEP) as an additional basis for taxing digital non-resident companies (NRCs) with Nigerian sourced income.
This amendment follows attempts at reforming international tax rules by the United Nations (UN), European Union (EU), and G20/ Organization for Economic Cooperation and Development (OECD). The G20/OECD’s Action 1 of the Base Erosion and Profit Shifting (BEPS) Project and the Inclusive Framework for BEPS seek to provide policy suggestions for aligning the place of taxation with that of ‘value creation’.
However, while all countries within the Inclusive Framework are presumed to be operating on equal footing, policy discussions have revealed a well-known problem: the role of international tax principles in the perpetuation of imbalances in the international allocation of taxing rights among states.
Against this background, this article will examine the scope of the SEP and its suitability, workability, and sustainability for taxing digital NRCs in Nigeria, review judicial decisions on taxation of digital NRCs, and analyse the enforcement challenges of the SEP in the context of Nigeria’s digital and wider economy.
Significant economic presence, digital taxation, value creation, permanent estabilishment, allocation of taxing rights, BEPS, UN, EU, G20/OECD, Nigeria.
The Ability to Pay and Economic Allegiance: Justifying Additional Allocation of Taxing Rights to Market States
Authors: Kjærsgaard Louise Fjord 
Published: February 2022

The OECD/G20 Inclusive Framework and the UN are working intensively on how to change the allocation of taxing rights to cross border income and to adapt the international tax regime to the digitalization of the economy. A stated aim is that more taxing rights should be allocated to the market states. However, during the process it has become clear that it remains uncertain why the allocation of taxing rights should be changed. In this article, it is argued that the allocation should continue to be justified by the principle of economic allegiance in accordance with the ability of the MNEs to pay taxes. On this basis, it is analysed whether the following three measures are justifiable: the new nexus under the Pillar One Blueprint, the inclusion of software in the definition of royalties in the UN Model Tax Convention and the implementation of a shared taxing right for automated digital services in the UN Model Tax Convention.
Allocation of taxing rights, ability to pay principle, economic allegiance, single tax principle, Inclusive Framework, Pillar One Blueprint, OECD Model Tax Convention, UN proposals on shared taxing rights, UN Model Tax Convention, automated digital services.