Friday, February 03, 2006

2005 Year review - Other Journals

Following my latest post on the 2005 year review. I provide below a list of 50 articles, besides the IBFD Journals, from other publishers covering interesting international tax topics. The articles cover from international tax, European tax to transfer pricing issues. Preference was give to articles that cover issues that are still open to discussion one way or another and are not specifically country related (i.e. purely domestic analysis). The re


(1) Tax Avoidance and the European Court of Justice: What is at Stake for European General Anti-Avoidance Rules?
Ruiz Almendral
This article first conveys the general aspects of a GAAR and anti-avoidance doctrines, connecting their main features with the new Spanish provision, and secondly, assesses the pertinent ECJ decisions and how they may affect its understanding and its use in the European context. Finally, it pays special attention to a recent Opinion of Advocate General Mr Poiares Maduro, that implies a certain change in the traditional ECJ doctrine.
Intertax, Vol. 33 (2005), no. 12 ; p. 595-602

(2) The Esab Case(C-231/05) and the Future of Group Taxation Regimes in EU
This article discusses the Esab case on the domestic law group taxation regime in Finland, pending at the European Court of Justice. As in the Marks & Spencer case, the question is whether and to what extent the domestic law group treatment has to be applied in intra-EU cross-border situations.
Intertax, Vol. 33 (2005), no. 12 ; p. 595-602

(3) The Impact of the Marks & Spencer Case on US-European Planning
This article examines the developing role of the European Court of Justice in the tax field, EC Treaty principles, the Marks & Spencer case, the Manninen decision, Advocate General Maduro's opinion in Marks & Spencer, and the extension to third countries.
Intertax, Vol. 33 (2005), no. 11 ; p. 490-502

(4) The Tax Burden on International Assignments
Eischner, Endres, Schmidt, Spengel
This article focuses on the taxes arising with international assignments. It quantifies the costs for assignments into 20 countries across Europe, the US, and Asia. The main objective is to calculate and compare the costs of cross-border assignments. The second objective is to estimate the impact of the various drivers on the assignment costs. The third objective is to rank the countries by total assignment costs.
Intertax, Vol. 33 (2005), no. 11 ; p. 490-502

(5) Cross-border Dividends from the Perspective of Switzerland as the Source State - Selected Issues under Article 15 of the Swiss-EU Savings Agreements
Danon, Glauser
After a presentation of the principles governing the treatment of dividends for Swiss withholding tax purposes, the article deals successively with outbound dividends under Swiss withholding tax, article 15(1) of the Savings Agreement and interpretative issues, payment of dividends, tax residence, minimum holding level, two-year holding requirement, anti-abuse provisions, and subject to tax requirements.
Intertax, Vol. 33 (2005), no. 11 ; p. 503-519

(6) Systems to Prevent Accumulation of Taxation in Parent-Subsidiary Relationships
This article examines the question of how the accumulation of income tax can be prevented in situations where one legal entity participates in another legal entity. It specifically addresses the issue of the avoidance of accumulation of taxation. In addition, a comparative analysis is made of the system as it exists at present in four states: Germany, the Netherlands, Spain and the US.
Intertax, Vol. 33 (2005), no. 11 ; p. 527-536

(7) Most-Favoured-Nation Treatment under Tax Treaties Rejected in the European Community: Background and Analysis of the D Case
This article discusses the background to the D case and the arguments put forward in the case by D's attorney, the governments and the European Commission. The decision is examined critically and a proposal is made for the inclusion of a most-favoured nation clause in the EC treaty.
Intertax, Vol. 33 (2005), no. 10 ; p. 429-444

(8) Most-Favoured-Nation Clauses in Double Taxation Conventions - A Worldwide Overview
This article deals with most-favoured-nation (MFN) clauses within the OECD Model and in the worldwide network of bilateral tax treaties. It includes a table of all analysed MFN clauses covering a.o. definition of permanent establishment, business profits, shipping and air transport, source taxation, capital gains, independent work, students, non-discrimination, anti-abuse regulations, arbitration, and exchange of information.
Intertax, Vol. 33 (2005), no. 10 ; p. 445-453

(9) A Slip of the European Court in the D Case (C-376/03): Denial of the Most-Favoured-Nation Treatment because of Absence of Similarity?
van Thiel
This article critically reviews the D case, concluding that the decision is very unfortunate, mainly because its wider implications undermine very basic principles of Community law, as well as the internal market without frontiers.
Intertax, Vol. 33 (2005), no. 10 ; p. 454-457

(10) Treaty Shopping and Domestic GAARs in the Light of a Recent Austrian Decision on Irish IFS Companies
Obermair, Weninger
This article deals with a decision by the Austrian Supreme Administrative Court of 9 December 2004, in which it denies the application of the treaty with recourse to the anti-abuse provision of s. 22 of the Austrian Federal tax Code. This article looks critically at the direct application of the Austrian domestic anti-abuse provision on double tax treaties and discusses alternative instruments to deal with treaty shopping in a dogmatic and well-founded manner.
Intertax, Vol. 33 (2005), no. 10 ; p. 466-473

(11) The European Treaties’ Implications for Direct Taxes
This article gives some orientation on the main principles derived from the European Treaties and their impact on national tax laws.
Intertax, Vol. 33 (2005), no. 8/9 ; p. 310-335

(12) Interpretation of Tax Treaties and Domestic General Anti-Avoidance Rules - A Sceptical Look at the 2003 Update to the OECD Commentary
This article examines whether the application of either statute-based or court-based domestic general anti-avoidance rules to tax treaty relations is in accordance with international law. The second part of the article expounds the general principles of treaty interpretation and explores the importance of the OECD Commentary in interpreting tax conventions. The third part of the article is devoted to the OECD's swing of opinion about the applicability of domestic general anti-avoidance rules to tax conventions over the last 20 years. The fourth part is devoted to the question whether there is a general principle of abuse of rights in tax matters. Part 5 discusses cases in which US courts applied domestic anti-avoidance doctrines to tax treaties.
Intertax, Vol. 33 (2005), no. 8/9 ; p. 336-350

(13) Agency Permanent Establishments in Securitization Transactions
This article considers whether, in circumstances where a service provider established outside the UK provides services to a UK issuer pursuant to a servicing agreement, the service provider may be treated for tax purposes as an agent permanent establishment of the issuer. Before this scenario is examined, the general rules of agency in both common law and civil law are considered. Then the concept of agency permanent establishment as developed by the OECD Model is reviewed. Following that and by way of background, the basic forms of securitization developed in the last 20 years are briefly described. In the remainder of the article, the risk of an agency permanent establishment arising in a simple wholesale securitization transaction is exposed and possible ways of averting that risk are suggested.
Intertax. - The Hague. - Vol. 33 (2005), no. 6/7 ; p. 286-296

(14) Shareholder Relief and EC Treaty Law - Supranational ’Aims and Effects’?
This article examines the effects of ECJ case law on national dividend relief provisions, concluding that the new approach of 'aims and effects' is of limited effectiveness and creates more problems than it solves.
Intertax. - The Hague. - Vol 33 (2005), no. 5 ; p. 200-214

(15) Final Amendments to the Merger Directive: Avoidance of Economic Double Taxation and Application to Hybrid Entities, Two Conflicting Goals
Benecke, Schnitger
This article describes the problems involved in the original proposal of 17 October 2003 of the European Commission and evaluates the solutions proposed in the final version of 17 February 2005.
Intertax. - The Hague. - Vol. 33 (2005), no. 4 ; p. 170-178

(16) The Relationship between Article 5, Paragraphs 1 and 3 of the OECD Model Convention
Analysis of the relation between the general PE concept and the construction PE and an overview of the developments within the OECD Model Convention.
Intertax. - The Hague. - Vol. 33 (2005), no. 4 ; p. 189-193

(17) European Transfer Pricing Trends at the Crossroads: Caught between Globalization, Tax Competition, and EC Law
Describes the international context within which the European domestic transfer pricing regulations are set, as well as the position of Spanish rules within the same context.
Intertax. - The Hague. - Vol. 33 (2005), no. 3 ; p. 103-116

(18) Is There a Future for CFC-Regimes in the EU?
The taxation of CFC income is very questionable both from the perspective of th EC Parent-Subsidiary Directive and from the perspective of the EC Treaty. According to the opinion of the author, the application of the domestic law of CFC regimes of the EU Member States to resident shareholders of companies of other Member States in most cases leads to a treatment that is not in accordance with EC law. The article first discusses the object and purpose of CFC legislation, compatibility with tax treaties, and, the Parent-Subsidiary Directive.
Intertax. - The Hague. - Vol. 33 (2005), no. 3 ; p. 117-123

(19) `Employer’ Issues in Article 15(2) of the OECD Model Convention- Proposals to Amend the OECD Commentary
Examines whether the different methods of interpretation of the term employer are in line with Art. 15 of the OECD Model, and, analyses the proposed changes and amendments as to whether their implications could already be derived from the existing version of the OECD Model or the OECD Commentary.
Intertax, Vol. 33 (2005), no. 3 ; p. 123-133

(20) The Attribution of Profits to a Permanent Establishment: Issues and Recommendations
Bennett, Dunahoo
Description of the historical US treaty policy regarding the attribution of profits to a permanent establishment. An analysis is given of the purpose of profit attribution provisions in tax treaties and their implications for business and governments. In addition, the main aspects of a recent OECD report on the allocation of profits to a permanent establishment are described with particular emphasis on political and technical issues, such as a symmetrical application, a functional analysis, the attribution of assets to a PE, risk assumptions, attribution of capital, comparability, transfer pricing methods and dependent agent PE's. The last parts deal with practical implications and issues regarding US treaty provisions.
Intertax. - The Hague. - Vol. 33 (2005), no. 2 ; p. 51-67

(21) Formulary Apportionment for Europe: An Analysis and A Proposal
Antonio Russo
This article addresses practical issues related to implementing apportionment at the European level, exploring whether such mechanism is effectively (politically and economically) viable and would clearly obtain the desired effects of reducing profit shifting through transfer pricing, curbing tax competition between Member States and creating a more favourable tax regulatory environment for Europe-based enterprises.
Intertax. - The Hague. - Vol. 33 (2005), no. 1 ; p. 1-31

EC Tax Review

(22) The implications of the judgment in the D case: the perspective of two non-believers
Janssen, de Graaf
This article discusses the judgment of the ECJ in the D case on the issue of most-favoured nation (MFN) treatment. It first looks at the various types of non-discrimination provisions in international agreements, viz. national treatment, horizontal non-disrimination and MFN treatment. It examines whether, according to international opinion, the general principle of non-discrimination entails a right to MFN treatment. It sketches the situation in practice in Germany, the Netherlands and the United Kingdom derived from the case law in which - invocation of - the MFN treatment is involved and examines several judgments of German and Dutch courts in which the claim to MFN treatment was explicitly rejected. Furthermore, it focuses on the ECJ's views with regard to applying the MFN treatment to tax treaties.
EC tax review, Vol. 14 (2005), no. 4 ; p. 173-189

(23) The Merger Directive amended: the final version
van den Brande
On 17 February 2005 the Council adopted a Directive 2005/19/EC amending the Merger Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges to shares concerning companies of different member states. This article provides an overview of amendments comparing them to the 1990 Directive.
EC tax review, Vol. 14 (2005), no. 3 ; p. 119-127

(24) Capital movements and direct taxation: the effect of the non-discrimination principles
This article examines the possible effect on the EC Member States direct taxation systems of a number of international agreements - other than the EC Treaty - that directly or indirectly relate to the liberalisation of international capital movements and of which both EC Member States and non-EC Member States are a party. It is examined to which degree these agreements prohibit the committing parties to distinguish between purely domestic situations and cross-border situations when taxing income from capital.
EC tax review. - Kingston-upon-Thames. - Vol. 14 (2005), no. 3 ; p. 128-139

(25) Fokus Bank: the end of withholding tax as we know it?
On 23 November 2004 the European Free Trade Association (EFTA) Court handed down a judgment in the Fokus Bank case that could have significant consequences for the continued application of withholding taxes on investment income within the EU (case E-1/04). This article reviews certain aspects of the EFTA Court's analysis in the light of the case law of the European Court of Justice and then addresses the potential consequences for withholding taxes generally within the EU.
EC tax review. - Kingston-upon-Thames. - Vol. 14 (2005), no. 2 ; p. 69-77

(26) Safeguarding pension taxation rights in cross-border situations
This article considers how member states can safeguard their taxing rights over occupational pensions if a (pan-European) pension fund is located in another member state. Taxing rights include both any yield tax, that is the tax on the pension capital at the level of the pension fund, and the tax on the pension out-payments. The article also briefly discusses the Pension Fund Directive, the Pension Taxation Communication, some cases decided by the European Court of Justice, the infringement cases taken up by the European Commission and the proposals by the European Federation for Retirement Provision.
EC tax review. - Kingston-upon-Thames. - Vol. 14 (2005), no. 2 ; p. 78-82

(27) Towards European international tax law
Pasquale Pistone
In the context of the opinion of Advocate General Ruiz-Jarabo Colomer in the "D" case and the signing of the EU-Switzerland savings agreement, an overview is given of the case from the European Court of Justice on tax treaties. The last 2 parts analyse the possibilities to solve conflicts between tax treaties within the European Union and with third countries and European law, such as an EU Model Tax Convention and exceptional cases such as the EU-Switzerland agreement where the Member States transferred the competence to conclude an agreement transferred to the EU.
EC tax review. - The Hague. - Vol. 14 (2005), no. 1 ; p. 4-9

Journal of International Taxation

(28) A guide to captive insurance companies
Three part article that covers fundamentals of captives and captive taxation, and U.S. court-developed "captive tax law".
Elliott, W.P.
Part 1 Journal of international taxation, Vol. 16 (2005), no. 4 ; p. 22-37
Part 2 Journal of international taxation, Vol. 16 (2005), no. 7 ; p. 28-33, 54
Part 3 Journal of international taxation, Vol. 16 (2005), no. 9 ; p. 34-43

(29) "Conservative" and "radical" alternatives for taxing e-commerce
Dale Pinto
This two-part article considers two proposed alternatives to accommodate the taxation of electronic commerce transactions that are at opposite ends of the spectrum of possible solutions to the challenges in this area. In this part 1 is considered what may be regarded as a conservative proposal to accommodate the taxation of electronic commerce transactions by seeking to maintain existing international tax principles as they are found in the OECD Model tax Convention.
Journal of international taxation, Vol. 16 (2005), no. 8 ; p. 14-21, 64

(30) How far should the WTO reach into income tax policies?
Jung, Y.
This article explores whether the current WTO rules are adequate to address a variety of problems emanating from national income tax policies. It presents a modest proposal and takes the position that the new challenges brought by the international tax community do not necessarily require a grand new initiative. It explores the nexus between trade and income tax policy, evaluates how the current WTO framework addresses the problems that income tax policy may create; and examines possible ways to address the challenges that may result from income tax policy.
Journal of international taxation, Vol. 16 (2005), no. 3 ; p. 36-46, 63-64

(31) E-commerce and foreign retail distribution: overlooked tax benefits
Feinschreiber, R. and Kent, M.
The long-dormant foreign retail distribution provisions permit users of e-commerce technology to benefit from export sales. The foreign retail distribution provisions are narrow in scope but when they do apply, they potentially provide tax saving for U.S. manufacturers through tax deferral or exclusion mechanisms. Quite surprisingly, U.S. businesses rarely seek to apply them.
Journal of international taxation, Vol. 16 (2005), no. 3 ; p. 30-35, 52

(32) Tax information exchange and bank secrecy
Spencer, D.E.
Two part article that covers the relationship between the OECD Model Income Tax Treaty and the OECD Model Agreement on Exchange of Information on Tax Matters and the issue of the USA as a safe haven for tax evasion. Part 1 of a two-part article discusses three major issues in connection with revised Article 26 of the OECD Model.
Journal of international taxation, Vol. 16 (2005), no. 3 ; p. 22-29, 57-58

(33) The relationship between the arm's-length principle in the OECD Model Treaty and EC tax law
Kofler, G.W.
Two part article. Part 1 discussed the Lankhorst-Hohorst case and the incompatibility of the German thin capitalization rules with EC law and the relevance of Article 9 OECD Model in the case. Part 2 considers the scope of the Parent-Subsidiary and Interest and Royalties Directives in the context of Lankhorst-Hohorst.
Part 1 Journal of international taxation, Vol. 16 (2005), no. 1 ; p. 32-43
Part 2 Journal of international taxation, Vol. 16 (2005), no. 2 ; p. 34-43 ; p. 62-64

British Tax Review

(34) Cross-Border Tax Arbitrage—Policy Choices and Political Motivations
Mark Boyle
The UK Government's recent introduction of measures designed to restrict cross-border tax arbitrage is one of the bolder legislative forays of recent years into the international tax arena. This article examines some of the political motivations and policy choices behind these measures: why should cross-border arbitrage opportunities be limited, provided existing laws are not being contravened? Is there any rational, policy-led basis for the Government's actions, and if so what is it? Why has the Government chosen now as the time to act? What criticisms can be levelled against the Government in relation to these new provisions, and how fair are they? And how do other international anti-abuse techniques enter into the equation? The article recognises that there are no clear-cut answers to these questions and notes that without a clearer understanding of the politics and policies behind the new rules, it is difficult to conclude what the lasting impact of the measures will be.
British tax review, (2005), no. 5 ; p. 527-543

(35) Aspects of Constructing a Rational Framework for Loss Relief: A Sample of How Four Countries Compete
Maureen Donnelly and Allister Young
A corporate tax system seeking to be competitive and fair must offer taxpayers relief for losses. This paper presents a policy framework within which the UK may proceed, as part of its corporate tax rationalisation process, to develop a more competitive loss utilisation regime. The framework is constructed using two policy elements - the averaging of losses over time and the identification of the loss owner. Within the context of these two elements, three variables - year, business and entity - serve to differentiate competitive positions along a policy spectrum. The UK's loss utilisation rules are compared to those of Australia, Canada and the US. A case scenario illustrates how the rules adopted by the four jurisdictions operate within the policy framework. The paper concludes with an assessment of the proposed changes.
British tax review, (2005), no. 4 ; p. 432-447

(36) The Attribution of Profits-Fact or Fiction?
Arun Birla
The first part of this article sets out the background to the OECD's development of a working hypothesis of the preferred methodology for the attribution of profits to a permanent establishment. The primary focus is on the banking industry. The article then goes on to consider some of the more important aspects to the preferred methodology. However, the OECD work cannot be considered in isolation as key domestic developments in both the UK and the US add to the debate. These developments lead the author to query and briefly comment on the exact significance of the OECD Commentaries when considering double tax treaties. The analysis queries the current approach adopted by the OECD although it is acknowledged that the topic present a number of controversial issues and difficulties.
British tax review, (2005), no. 2 ; p. 207-221

Tax Notes International

(37) A comprehensive look at the Berry ratio in transfer pricing
Transfer pricing from a CFO's perspective : the benefits of activity-based costing
Przysuski, M., Lalapet, S.
This article is the first of a two-part series in which the authors examine different costing approaches for setting internal transfer prices and their implications for multinational organizations. The authors examine the application of profit-based methods to prove the arm's-length principle in transfer pricing analyses, particularly the comparable profits method and the transactional net margin method, as applied in the United States and other OECD countries.
Tax Notes International, Vol. 40 (2005), no. 8 ; p. 759-767 and Tax Notes International, Vol. 39 (2005), no. 9 ; p. 829-843

(38) Spain's antiabuse aproach and ECJ jurisprudence
Calderón Carrero, J.M.
This article discusses a case in the Spanish tax court involving Spanish anti-abuse clauses considering the European Court of Justice's interpretation of the anti-directive-shopping rules.
Tax Notes International, Vol. 39 (2005), no. 11 ; p. 1031-1044

(39) Tax treaties and antiavoidance rules in Canada
Esmail, P.
This special report examines the application of antiavoidance rules in the context of Canada's network of tax treaties.
Tax Notes International, Vol. 39 (2005), no. 3 ; p. 271-278

(40) EU law and the taxation of dividends, interest, and royalties : recent case law
Richelle, I.
This article highlights the likely effects of recent ECJ and EFTA case law on national tax laws and tax treaties that affect taxation of dividends, interest, and royalties of nonresident companies and individuals
Tax Notes International, Vol. 39 (2005), no. 3 ; p. 243-248

(41) Discriminatory treatment of dividens in the European Union : is the end near?
Liebman, H.M. and Rousselle, O.
Pressure on the European Commission (and the EU member states) to harmonize the tax treatment of cross-border dividends has intensified with recent decisions by the European Court of Justice and the European Free Trade Association Court, all of which favored the taxpayer.
Tax Notes International, Vol. 39 (2005), no. 2 ; p. 143-150

(42) A benefits-received approach to creating an international tax
Verbeek, P.
This article examines how the concept of an international tax has developed over the last 30 years as well as how a benefits-received model of the tax would work.
Tax Notes International, Vol. 39 (2005), no. 1 ; p. 43-46

(43) Replacing CFC regimes with a collective attribution system
Burnett, C.A.
This article argues for a multicountry, reciprocal, jurisdiction-based scheme through an attribution system to target tax havens and preferential tax regimes as an alternative to individual countries' CFC laws.
Tax notes international. - Arlington. - Vol. 38 (2005), no. 12 ; p. 1109-1119

(44) Angels on a pin: arm's length in the world
Rosenbloom, H.D.
Like its "polar alternative," global formulary apportionment, the arm's-length approach to transfer pricing has many quirks and anomalies that deserve greater attention.
Tax Notes International, Vol. 38 (2005), no. 6 ; p. 523-530

(45) International mergers and acquisitions : a forum for discussion
Boidman, N.
Tax treatment of target or merger party shareholders who take foreign acquirers'or merger party's stock
The ninth article of the M&A Forum considers the tax effects of transactions with shareholders of two more groups in an international merger or acquisition that receive all or substantial stock from the other upon the transaction for nine countries.
Tax notes international, Vol. 38 (2005), no. 6 ; p. 491-506
Role of a target country acquisition corporation (special purpose vehicle)
This article addresses the tax considerations of a complete acquisition of a corporate group in one country by a group in another or a merger of two of those groups and the need for a special purpose vehicle, usually a corporation, to avoid or limit taxation.
Tax notes international, Vol. 37 (2005), no. 8 ; p. 663-682

(46) The United Nation's role in international tax cooperation
Zagaris, B.
This article discusses the United Nations' Committee of Experts on International Cooperation in Tax Matters, which is responsible for international tax cooperation, and various countries' and organizations' responses to it.
Tax Notes International, Vol. 38 (2005), no. 4 ; p. 337-340

(47) A separate international tax regime for nonresident athletes
Winnie, R. (Jr.)
This article discusses the feasibility of, and potential methods for, developing a separate international tax regime for nonresident athletes in the countries in which they earn income.
Tax Notes International, Vol. 38 (2005), no. 1 ; p. 69-87

(48) Transfer pricing and related tax aspects of global supply chain restructurings
Lemein, G.D.
This paper explores the changes in multinational corporate and business structure in the modern global economy and discusses the changes in taxation and transfer pricing that have resulted from the changes in structure.
Tax Notes International, Vol. 37 (2005), no. 8 ; p. 715-724

(49) Source taxation and the OECD project on attribution of profits to permanent establishments
Edgar, T. and Holland, D.
An OECD project on the proper approach to the attribution of profits to permanent establishments appears to jeopardize much of the source jurisdiction to tax in the context of multinational enterprises organized in branch form.
Tax Notes International, Vol. 37 (2005), no. 6 ; p. 525-539

(50) Tax competition : an analysis of the fundamental arguments
Nov, A.
This article discusses two opposing views on international tax competition and details the OECD and EC proposals for limiting harmful tax competition.
Tax Notes International, Vol. 37 (2005), no. 4 ; p. 323-333


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