International Law of Taxation

cover
Series
International Law of Taxation
Copyright
Table of Contents
Table of Cases
List of Abbreviations
1. Introduction
	1. Taxation and Statehood
	2. Terminology
		2.1 English as the lingua franca
		2.2 International law of taxation
		2.3 International tax law
		2.4 The international tax regime
	3. History of the International Tax Regime
		3.1 The international tax regime until 1920
		3.2 The League of Nations as the leading international tax organization in and after the 1920s
		3.3 The post-​Second World War phase and the rise of the OECD in the 1950s and 1960s
		3.4 The G20 in the driver seat in the new century
		3.5 Excursus: development aid and the international tax regime
	4. Institutions and Main Actors
		4.1 Introduction
		4.2 The UN and its work on taxation
		4.3 The OECD and its work in the field of taxation
		4.4 The Inclusive Framework
		4.5 The Global Forum
	5. Sovereignty in Tax Matters
		5.1 Sovereignty in international law
		5.2 Jurisdiction to tax
			5.2.1 The genuine link as a connective factor in international tax law
			5.2.2 Worldwide and territorial taxation
			5.2.3 Source and residence—​terminology
		5.3 Double income taxation is systemic
2. Sources of the International Law of Taxation
	1. Overview
	2. The International Tax Law Regime—​a Treaty-​based Regime
		2.1 Interpretation of tax treaties
			2.1.1 Grammatical element (textual approach)
			2.1.2 Teleological element (purposive interpretation)
			2.1.3 Systematic element (contextual interpretation)
			2.1.4 Supplementary means of interpretation (Art 32 VCLT)
			2.1.5 Relevance of the domestic laws
			2.1.6 The value of the OECD and UN commentaries
		2.2 Multilateral and bilateral tax treaties
		2.3 Double tax treaties
			2.3.1 Model conventions
			2.3.2 The importance of the domestic laws
			2.3.3 Steps in the application of a double tax treaty
			2.3.4 Scope of the convention
			2.3.5 Allocation rules
			2.3.6 Special provisions
			2.3.7 Final provisions
		2.4 Double tax treaties with respect to taxes on estates and inheritances
		2.5 Treaties regulating mutual assistance in tax matters
			2.5.1 The Convention on Mutual Administrative Assistance in Tax Matters
			2.5.2 Exchange of information on request
			2.5.3 Automatic exchange of information
			2.5.4 Spontaneous exchange of information
	3. Customary International Tax Law
		3.1 Traditional requirements
		3.2 State practice
		3.3 Opinio iuris
		3.4 Examples from a tax perspective
			3.4.1 Preliminary remarks
			3.4.2 Interpretation principles according to Art 31 VCLT
			3.4.3 Prohibition of juridical double taxation
			3.4.4 Non-​taxation of diplomatic and consular personnel
			3.4.5 Arm’s length principle
			3.4.6 The principal purpose test
			3.4.7 Fiscal transparency
	4. General Principles of International Tax Law
		4.1 Introduction
		4.2 Examples from a tax perspective
			4.2.1 Abuse of law
			4.2.2 Estoppel
			4.2.3 Collision rules
	5. Soft Law and Its Importance for International Tax Law
		5.1 Terminology
		5.2 Soft law and its effectiveness
		5.3 Soft law in the field of taxation
	6. EU Law and Taxation
		6.1 Introduction
		6.2 The fundamental freedoms and taxation
			6.2.1 Introduction
			6.2.2 Scope
			6.2.3 Priority
			6.2.4 The right comparison
			6.2.5 Justifications
			6.2.6 Proportionality
		6.3 Specific topics
			6.3.1 Deductions and allowances
			6.3.2 Cross-​border offset of losses
			6.3.3 Dividend taxation
			6.3.4 Thin capitalization
			6.3.5 Controlled foreign corporation
			6.3.6 Exit taxation
		6.4 State aid and taxation
			6.4.1 In general
			6.4.2 Application to advanced pricing agreements
		6.5 Secondary EU law
			6.5.1 Direct taxation and the directives
			6.5.2 Indirect taxation and the directives
			6.5.3 Further projects
3. Relationship with other Areas of International Law
	1. Trade Law
		1.1 Introduction
		1.2 Some preliminary remarks on the WTO
			1.2.1 Agreements of the WTO
			1.2.2 Non-​discrimination principle
		1.3 Taxation of goods: the General Agreement on Tariffs and Trade
			1.3.1 Overview
			1.3.2 Treatment of internal taxes
		1.4 Taxation of services: the General Agreement on Trade in Services
			1.4.1 Overview
			1.4.2 Treatment of taxes on services
		1.5 Tax subsidies: Agreement on Subsidies and Countermeasures (and the GATT)
			1.5.1 Overview
			1.5.2 Tax relief as a subsidy under Art 1 SCM
			1.5.3 Treatment of export tax relief
			1.5.4 Treatment of tax relief upon use of domestic inputs
			1.5.5 Treatment of other tax reliefs
		1.6 Conclusions
	2. Investment Treaty Law
		2.1 Introduction
		2.2 Some preliminary remarks on bilateral investment treaties
			2.2.1 Overview
			2.2.2 Contents of bilateral investment treaties
			2.2.3 Relevance of case law
		2.3 Scope of bilateral investment treaties
			2.3.1 Preliminary note
			2.3.2 Personal scope
			2.3.3 Objective scope
		2.4 Substantive provisions
			2.4.1 Full protection and security and fair and equitable treatment
			2.4.2 National treatment and most-​favoured nation
			2.4.3 Expropriation
			2.4.4 Umbrella clause
	3. Human Rights Law
		3.1 Human rights and the international tax regime
		3.2 The European Convention on Human Rights and tax matters
		3.3 Procedural rights
		3.4 Substantive rights
			3.4.1 Equality (including ability to pay)
			3.4.2 Taxpayers’ property rights
			3.4.3 Further substantive rights
	4. Tax Rules in Non-​tax Agreements
		4.1 Tax provisions and status of forces agreements
		4.2 Tax provisions in headquarters agreements between international organizations and their host state
4. Conceptual Problems
	1. Success and Failure in the International Cooperation regarding Tax Matters
		1.1 Success of the international tax regime
		1.2 Failures of the international tax regime
		1.3 What are the reasons for the failure of the international tax regime?
			1.3.1 The missing value-​based framework
			1.3.2 The guiding principles of international tax policy are flawed
			1.3.3 Institutional difficulties in a dynamic set-​up
	2. The Most Pressing Issues
		2.1 Measures against aggressive tax planning
			2.1.1 Harmful tax regimes
			2.1.2 The Base Erosion and Profit Shifting Project
			2.1.3 The years following the Base Erosion and Profit Shifting Project
		2.2 Taxing the digital economy
			2.2.1 Overview
			2.2.2 The specifics of the digital economy
			2.2.3 Potential solutions for value-​added-​tax-​ related problems
			2.2.4 Potential solutions for corporate-​income-​related problems
		2.3 Formulary apportionment as the silver bullet?
			2.3.1 Introduction
			2.3.2 Arguments in favour of and against the formulary system
			2.3.3 Income allocation and redistribution
			2.3.4 Why destination-​based systems are preferable
		2.4 Taxation and the Paris Agreement
Index