International and Comparative Taxation

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ISBN: 9789041198419 | 9041198415
Cover: Hardcover
Copyright: 9/1/2002

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Prof. Dr. H. C. Klaus Vogel turned 70 in December 2000. For his students, colleagues and friends all around the world he has been not only a teacher and academic, but also a researcher and mentor, and this occasion provided the opportunity to honour him with a Festschrift. This celebratory volume, with contributions in German and in English, is published under the titleStaaten und Steuern (States and Taxes)by C.F. Muuml;ller Verlag in Heidelberg. With the permission of the publisher, the present volume contains the English language contributions as a separate publication.

Prefaces

vii

List of Contributors

xvii

Tax Competition: What (if Anything) to do about it?

Hugh J. Ault

Introduction and Background

(1)

Indentifying ``Harmful'' Tax Competition

(2)

Institutional Structure

(1)

Defensive Measures

(1)

Tax Havens and Non-Member Countries

(1)

Tax Havens

(1)

Preferential Regimes in Non-Member Countries

(1)

An Assessment and a Look Ahead

(2)

Problems of Categorising Income for Tax Treaty Purposes

John F. Avery Jones

Introduction

(1)

Categorising Income for Treaty Purposes

(4)

Defined Expressions

(2)

Reference to Internal Law

(1)

Ordinary Meaning

(1)

The Capital Gains Article

(2)

Capital Gains which are Categorised as Income by Internal Law

(10)

Land

(1)

Employment Income

(5)

Dividends

(1)

Interest

(1)

Miscellaneous Income

(3)

Conclusion

(3)

Arm's Length -- How Long?

Hubert Hamaekers

Introduction

(5)

The Origin of the Arm's Length Principle

(4)

Justification for and Comments on the Arm's Length Principle

(2)

Problems with the Application of Transfer Pricing Rules

(6)

Solutions to the Transfer Pricing Problem?

(5)

Within the Ambit of the Arm's Length Principle

(1)

Do Away with the Best Method Rule

(1)

Profit Split

(1)

Regional Tax Systems: European Company Tax

(1)

Alternative Methods of Profit Allocation

(1)

Formulatory Apportionment Methods

(2)

European Home State Taxation

(1)

Summary and Conclusions

(2)

The Principle of Statute-Based Taxation in Japan -- Trends in Scholars' Opinion and Case Law

Hiroshi Kaneko

Introduction

(4)

Trends in the Pre-War Times

(2)

Trends in the Post-War Period

(2)

Principle of Reservation to Statutes

(7)

General Observation

(1)

Musical Intruments Case

(1)

Bonus for Executive-Employees Case

(3)

Registration Tax Refund Case

(2)

Principle of Preciseness

(5)

General Observation

(2)

Local Health Insurance Tax Case

(3)

Principle of Non-Retroactivity

(4)

General Observation

(1)

Okinawa Commodity Tax Case

(1)

Special Land-Holding Tax Case

(1)

Periodic Tax Cases

(1)

Final Remarks

(3)

The Abolition of Joint Taxation -- The Swedish Experience

Gustaf Lindencrona

The Equity Problem

(1)

The Abolition of Joint Taxation in Sweden

(1)

The Tax Position of Children

(1)

Tax Avoidance through Family Transaction

(2)

The Importance of the 1990 Tax Reform

(1)

The Abolition of Joint Taxation in Sweden -- An Evaluation

(3)

The History of Article 8 of the Oecd Model Treaty on Taxation of Shipping and Air Transport

Guglielmo Maisto

Introduction

(7)

The Unilateral Tax Relief for Foreign Shipping Companies Immediately after World War I

(3)

The Limited Role of Tax Treaties until 1928

(4)

The Work Undertaken by the Financial Committee of the League of Nations in the Period 1920 through 1928: From the 1923 Report on Double Taxation to the Three 1928 Draft Model Conventions to Avoid Double Taxation on Income

(10)

The 1923 Report by the Experts on Double Taxation

(2)

The 1925 Resolution of the Technical Experts

(3)

The 1927 Draft Bilateral Convention of the Committee of Technical Experts

(5)

The 1931 Draft Plurilateral Convention, the 1933 Draft Convention for the Allocation of Business Income between States for the Purposes of Taxation and the 1935 Revision of the Draft Convention for the Allocation of Business Income between States for the Purposes of Taxation

100

(5)

The 1943 and 1946 Mexico and London Model Conventions

105

(4)

The 1959 OEEC Draft Report

109

(2)

Harmful Tax Competition and the Future of Financial Centres in the European Union

Jacques Malherbe

The EC Code of Conduct

111

(1)

The OECD Report on Harmful Tax Competition

112

(2)

Tax Competition in General

114

(3)

Assessment of Special Tax Regimes in Europe for Financing Activities

115

(1)

Ring-fencing

116

(1)

Absence of Economic Activity

117

(1)

Deviation from International Principles of Taxation

117

(1)

Lack of Transparency

118

(1)

Artificial Definition of the Tax Base (OECD)

119

(1)

Counteracting Measures

119

(1)

State Aid

120

(1)

Dutch Finance Companies

121

(1)

Irish Financial Services Companies

121

(1)

Conclusion

122

(1)

Taxation of Cross-Border Interest Flows: Japanese Responses

Yoshihiro Masui

Introduction

123

(1)

Capturing the Income of Japanese Residents

123

(5)

The Significance of Interest Income

123

(1)

Reliance on Withholding

124

(1)

Lack of Taxpayer Identification Number

125

(1)

Capturing Cross-Border Interest Flows

126

(2)

Exempting the Income of Non-Residents

128

(4)

The Interest Withholding Rule and Its Critics

128

(1)

Losing Nexus in a Global Environment

129

(1)

The Need to Compete

130

(1)

Preventing Abuse

131

(1)

Conclusion

132

(3)

Has the European Court of Justice Any Interest in Tax Expenditures?

Nils Mattsson

Introduction

135

(2)

The Present Provisions State Aid in the Treaty

137

(1)

Case-law

138

(11)

Can Tax Rules be a Kind of Aid?

139

(2)

Is the Purported Aim of Revising an Imbalance in a National System of Social Contributions Acceptable?

141

(1)

Does an Exemption from Tax Liability Granted to a Public Enterprise Fall under the Scope of Article 87 of the Treaty?

142

(1)

Is a Tax Credit State Aid when the Effect could have been Achieved by other Measures that According to the Member State may have been Permitted?

143

(2)

Where is the Difference Between General Fiscal Policy and Specific Measures in the Tax Area? Does a Gradual Change of Tax Rules Result in State Aid until a New General System has been Achieved?

145

(4)

Conclusion

149

(2)

The Impact of Trade Agreements on Tax Systems

Paul R. McDaniel

Introduction

151

(1)

Normative Free Trade Policy and Normative Tax Policy

152

(2)

Trade Policy

152

(1)

Tax Policy

153

(1)

The World Trade Organization

154

(3)

The European Union

157

(4)

Conclusion

161

(2)

A Brief Look at the Early History of the Unintegrated Corporate and Individual Income Taxes in the USA

John K. McNulty

Introduction

163

(2)

History and Evolution of the Federal Income Taxation of Corporate Source Income in the US

165

(12)

Civil War Taxes

165

(1)

1894 General Income Tax

166

(1)

1909 Corporation ``Excise Tax''

167

(2)

1913 General Income Taxes

169

(3)

The Undistributed Profits Tax on 1936 -- New and Lasting Directions for the Corporate Income Tax, 1936-1939

172

(2)

Steps in the Direction of Dividend Relief -- 1954--1963

174

(1)

Subchapter-S

174

(1)

Subpart-F and P.F.I.C. Legislation

175

(2)

A Brief Overview of the Twentieth Century US Legislative History

177

(1)

Conclusion

177

(2)

Source Rule in Japanese Taxation -- Some Experience of Intangible Assets

Tadashi Murai

Three Views Concerning Royalty Taxation

179

(8)

Paragraph 3, Article 14 of the Tax Convention between Japan and the United States of America

181

(1)

Theoretical Reasoning for Taxation in Country of Residence

182

(1)

Reasoning for Taxation in Source Country

183

(1)

Advance Ruling of 1965, Reply from the Commissioner of the National Tax Administration Agency

184

(1)

Income Tax Law: Paragraph 7, Article 161; Corporate Tax Law: Article 138

185

(1)

Japan--US Tax Convention, Paragraph 3, Article 6

186

(1)

May 13, 1985 Decision of Tokyo District Court

187

(3)

October 27, 1992 Tokyo District Court Judgement: Royalties are out of Court Settlement

190

(6)

Interpretation of the Contract is what is Important

192

(1)

Philosophy of Dual Gain: Divided Calculation is Possible

193

(2)

Vacuum Zone or Double Taxation

195

(1)

Conclusion

196

(4)

More on the Definition of ``Source'' in the German-Swedish Tax Treaty

Leif Muten

The Issue

200

(2)

Preliminary Comments

202

(3)

Possible Reasons for the Provision

205

(3)

Corresponding other German Treaty Provisions

208

(7)

A Tentative Interpretation and a Final Comment

215

(2)

International Coordination of Tax Treaty Interpretation and Application

Kees van Raad

Introduction

217

(3)

Divergent Tax Treaty Interpretation and Application

217

(1)

Tax Treaty Interpretation by Taxpayers, Tax Authorities, Courts and Competent Authorities

218

(1)

A Proposal: The Creation of an Advisory Body of Independent Tax Treaty Experts

219

(1)

Three Categories of Problems that arise in Tax Treaty Interpretation and Application

220

(5)

In General

220

(1)

Selected Instances of Unclear Distributive Treaty Rules

220

(1)

Overlapping Scopes of Distributive Treaty Provisions

220

(1)

Attribution of Income

221

(1)

Analogous Application of Distributive Treaty Rules

221

(1)

Precise Meaning of a Treaty Notion

222

(1)

Removing the Confusion

222

(1)

Instances of Undefined Treaty Terms

223

(1)

Instances of Divergence in Personal Attribution of the Income

224

(1)

Establishing a Supranational Body to Develop International Case Law on Tax Treaty Issues

225

(5)

Introduction

225

(1)

Lessons to be Learned from the Success of the EC Arbitration Convention

226

(1)

Parties that should be Permitted to Request an Opinion on a Tax Treaty Issue

226

(1)

Panel Members

227

(1)

Constitutional or Statutory Issues

228

(1)

Procedural Issues

228

(1)

Publication of Opinions Issued

228

(1)

Sponsoring International Organization

229

(1)

Summary and Conclusion

230

(1)

The Norwegian Supreme Court and Its ``365-Day Rule''

Arvid Aage Skaar

Introduction

231

(2)

Allocation of Expenses to Temporary Permanent Establishments (Offshore PE)

231

(1)

The 30-day Rule

232

(1)

The Plain Vanilla Structure

232

(1)

The Tax Haven Variation

232

(1)

The Issues

233

(2)

What shall be the Denominator?

233

(1)

Only Allocation of Costs Incurred by the Taxpayer (Head Office)?

234

(1)

Nature of Idle Days

234

(1)

Functional Connection or Coincidence in Time?

234

(1)

Geographical Coincidence?

235

(1)

Starting Point in Tax-Treaty Law

235

(1)

Casuistry -- Courts and Assessment Boards

236

(10)

Several Cases -- Ambiguous Solutions

236

(1)

The Uncle John Case

236

(1)

Factual Circumstances

237

(1)

The Arm's-length Principle under the Supreme Court's Reasoning in Uncle John

237

(1)

The Safe Regalia Case

238

(1)

Factual Circumstances in Safe Regalia

238

(1)

The PE Definition in the Tax Treaty

239

(1)

Comparison of Uncle John and Safe Regalia

239

(1)

The BJ Services Case -- The Play-off

240

(1)

Introduction

240

(1)

Factual Background

240

(2)

The Position of the Fiscal Authorities

242

(1)

Norwegian and Total Active Days

242

(1)

The Court's Opinion

243

(1)

The Heerema Case

244

(1)

The Pipelaying Case

245

(1)

Conclusions

246

(3)

A Matter of Mathematics

246

(1)

Poor Market Conditions -- No Adjustments

247

(1)

Seasonal Constraints -- Possible Adjustment

247

(1)

Repair and Maintenance -- Added to Active Days

247

(1)

Waiting on Weather -- Added to Active Days

247

(1)

Technical Breakdown -- Added to Active Days

247

(1)

Closing Remark: Inconsistency by the Supreme Court

247

(2)

International Tax Aspects of Swedish Reorganisations

Bertil Wiman

Introduction

249

(2)

Tax Rules on Reorganisations in General

251

(1)

Transfers below Market Price

252

(5)

Intra-group Sale of Assets

257

(1)

Exchange of Shares

258

(2)

Mergers, Divisions and Transfer of Assets

260

(3)

Concluding Remarks

263

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International and Comparative Taxation

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