The Article Crawler (I)

This is the first issue of the new feature called “The Article Crawler”. This feature is intended to be one of the high points of the Talk Tax and has the objective to provide a selection of recent bibliography from the latest numbers of the IBFD journals. At a later stage I will enlarge the scope of The Article Crawler to other journals dealing with international tax.

In this first "Article Crawler", I selected from the Juanury-May issues: 5 articles from the Bulletin, 3 articles from the European Taxation and 1 article from the Asia-Pacific Tax Bulletin.

Bulletin for International Fiscal Documentation (Volume 59 - 2005)

TAX TREATY NEWS
Author: Klaus Vogel
First I would highlight the Tax Treaty News (on the January and February issues), a service with which Prof. Vogel cleverly convinced all of us along the time of the importance to follow and track down court decisions of other countries on the application of tax treaties.

PLACE OF EFFECTIVE MANAGEMENT AS A RESIDENCE TIE-BREAKER
Author: John F. Avery Jones
This very interesting article of the January issue summarizes the (so called best) discussion at the 2004 IFA Congress in Vienna on the place of effective management as a residence tie-breaker. The seminar considered the meaning of "place of effective management" in Art. 4(3) of the OECD Model as the tie-breaker for dual resident persons other than individuals. In this context, the panel looked at four interesting cases involving the place of effective management.

DOMESTIC ANTI-AVOIDANCE RULES AND TAX TREATIES - COMMENT ON BRIAN ARNOLD'S ARTICLE
Author: Frederik Zimmer
In a short note of the January issue one founds an interesting comment on a very comprehensive and enlightening article on tax treaties and tax avoidance by Brian Arnold (see June 2004 issue of the Bulletin). In this (must read) article Arnold discussed the hot issue of how the 2003 OECD Commentaries deal with domestic anti-avoidance rules and their interaction with tax treaties. Frederik Zimmer comments on the article of Arnold.

THE EC PARENT-SUBSIDIARY DIRECTIVE IN SWITZERLAND - SWISS OUTBOUND DIVIDENDS
Author: Howard R. Hull
As you may know the recent agreement between the Switzerland and the EU on the taxation of savings includes a provision, which grants Switzerland measures equivalent to those found in the EC Parent-Subsidiary Directive. This is enough to make some parts of this article of the February issue important for a tax advisor that deals with companies located in Switzerland or is considering relocating some activities to this politically correct “tax haven”.

WILL THE OECD INITIATIVE ON HARMFUL TAX COMPETITION HELP DEVELOPING AND TRANSITION COUNTRIES?
Author: Charles E. McLure
In previous posts, I already discussed briefly the controversy behind the initiative against harmful competition. This article examines whether that outcome is likely. The article first considers how tax havens are used to evade tax on income from passive investments. The article of the March issue describes the OECD project and discusses both the appearance and the reality of progress to date. Prof. McLure also describes the implications of such initiative for developing and transition countries.

European Taxation (Volume 45 , 2005)

TRIANGULAR CASES AND THE INTEREST AND ROYALTIES DIRECTIVE: UNTYING THE GORDIAN KNOT?
Author: Michele Gusmeroli
I feel very good in recommending an article written by a good friend! The great Gusme! This long but novel article considers the Interest and Royalties Directive in relation to the problems posed by triangular cases. The article deals with this issue in three parts (January, February and March issues). Part 1 commences by recalling the triangular cases issue in a mere tax treaty setting, considering a number of cases in the process. In Part 2, following a brief description of the scope of the Directive, selected provisions will be analyzed, eventually arriving at the double source issue. Part 3 will provide an overview of the cases that are likely to arise in this area, with specific regard to both “internal” and “external” interest and royalty payments. I have the fealing that Michele wanted to make an epic article which took some magic from the "Lord of the Rings". I think he did it! At least in terms of duration!

THE IMPLICATIONS OF THE ECJ HOLDING THE DENIAL OF FINNISH IMPUTATION CREDITS IN CROSS-BORDER SITUATIONS TO BE INCOMPATIBLE WITH THE EC TREATY IN THE MANNINEN CASE
Authors: Lari Hintsanen and Kennet Pettersson
Following Michelle, yet another Lieden LLM alumni, Lari. In this article of the April issue, the authors provide an in-depth analysis to the Manninen case, the Advocate General's opinion and the decisions of the ECJ and the Finnish Supreme Administrative Court.

NETHERLANDS: THE NETHERLANDS INTERPRETATION OF THE TERM "EMPLOYER" IN ART. 15 OF THE OECD MODEL CONVENTION
Author: Hans de Vries
I select this article of the may issue not only because the topic is interesting and should be reviewed carefully in light of the recent OECD developments, but also because of the references to Dutch judicial interpretations (which we know are becoming more and more mainstream). The author considers the Netherlands interpretation of the term "employer" by looking at its definition, summarizing recent Dutch judicial interpretations of the term and providing an overview of the OECD's comments on Art. 15 of the OECD Model Convention, and, finally, reviewing the current approach of the Netherlands Ministry of Finance.

Asia-Pacific Tax Bulletin (Volume 11 , 2005)

A NEW THREE-TIER PROPOSAL FOR DETERMINING CORPORATE RESIDENCE BASED PRINCIPALLY ON INDIVIDUAL RESIDENCE
Author: Dale Pinto This interesting article (included in the January issue) deals with yet another hot topic within the OECD framework: how to determine the corporate tax residence. The author argues that the existing tests are inadequate and that using an individual's tax residence as the basis of determination is the best alternative.