Chapter 11: Some Thoughts on Jurisdiction and Nexus

Abstract

Why this book? Current Tax Treaty Issues – 50th Anniversary of the International Tax Group comprises contributions focusing on international tax issues marking the 50th anniversary of a group of experts whose collective writings for decades have landmarked the international literature on tax treaties and international tax law in general. The book begins with a part on tax treaty policy and domestic law, including a review of the history of tax treaties and tax policy and international organizations in the tax treaty context. The domestic law aspects focus on a comparison of various features of tax litigation in the Netherlands and in the United Kingdom. It also includes an in-depth analysis of the “preservation principle” under which treaty provisions are prevented from being construed to restrict exclusions, exemptions, credit or other allowances granted by domestic law. Part 1 concludes with a review of the constitutional issues arising from the parliamentary process of approval of tax treaties. Part 2 deals with treaty interpretation and application with a focus on tax treaty application to states and their political subdivisions and local authorities. It also includes a chapter on “treaty access” dealing with policy and practical considerations on access to treaties by commercial entities with a focus on the principal purpose test and the limitation on benefits provision and the handling of characterization issues under treaties. A separate chapter reviews the use of memoranda of understanding for tax treaty interpretation and administration for tax treaty interpretation. Part 2 concludes with an analysis of the use of the OECD Commentaries in the context of BEPS and the MLI. Part 3 is devoted to taxing rules relating to the jurisdiction to tax, a commentary on the PE definition as revised by the 2017 Update to the Model Convention and the taxation of services income. It also analyses the treaty practice on article 21 of the OECD and UN Models. The definition of “beneficial ownership”, with the impact of the preamble to the 2017 Model Convention and the interpretation of the beneficial ownership limitation are also examined. Finally, a critique on the meaning of “beneficial ownership” before and after BEPS and whether the expression has become obsolete is presented. This book presents a unique and detailed insight into the most controversial issues which may be found in the tax treaty context. As such, it is an essential reference source for international tax students, practitioners and academics. Downloads Sample excerpt, including table of contents Review Reviewed by Yariv Brauner, Hugh Culverhouse Eminent Scholar and professor of law at the University of Florida Levin College of Law. "This book advances the study of tax treaties with several chapters that are likely to become fundamental texts in the study of international tax law, much like previous contributions by the ITG. Notably, the book does not explicitly consider the future of tax treaties following the BEPS project and its great achievement, a major multilateral tax treaty — the MLI— which naturally raises questions about the resilience of bilateral tax treaties. Yet the book sends a strong signal to the reader about the positive achievements of the international tax regime — in particular, the stability and the normative convergence the regime provides —achievements that should not be taken lightly despite the ample criticisms and the need for reforms." This book is part of the EC and International Tax Law Series View other titles in the series Contributor(s) Stéphane Austry, John Avery Jones, Philip Baker, Peter H. Blessing, Robert J. Danon, Luc De Broe, Shefali Goradia, Johann Hattingh, Koichi Inoue, Guglielmo Maisto, Toshio Miyatake, Angelo Nikolakakis, Frank Pötgens, Kees van Raad, Richard Vann, Bertil Wiman

Cite this work

No public copy is stored for this record, so only the metadata is cited.

Stored only when both papers are in the corpus — 12 citations exist upstream.

Papers that cite the same references — the relational fallback while embeddings are still backfilling.