Strategizing International Tax Best Practices – by Keith Brockman

EU Parent-Subsidiary Directive: One step forward

June 24, 2014

On 20 June 2014, the EU Economic and Financial Affairs Council reached agreement on modifying the EU Parent-Subsidiary Directive.  The agreement proceeds with the prevention of double non-taxation via the use of hybrid financing arrangements, while agreeing to work separately on an amended General Anti-Avoidance Rule (GAAR).  Links to the current EU Parent Subsidiary Directive (2011/96/EU), a PwC Tax Alert summarizing the proposal and the EU proposals are included for reference:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:345:0008:0016:EN:PDF

Click to access pwc-newsalert-20-june-2014-amendment-parent-subsidiary-directive.pdf

http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2010419%202014%20INIT

The amendment is limited to the 28 Member States of the EU, with a similar proposal envisioned in the OECD BEPS initiative.  It is interesting to note the OECD BEPS provisions are being focused within the EU Community, in addition to the international OECD Guidelines.  Timing for this EU proposal is for domestic legislative action by December 2015.

Re: Best Practices, it is prudent to review the EU legal structure for such hybrid arrangements to quantify the effect of this proposal, possibly requiring modification of hybrid debt and/or legal entities.  Additionally, such hybrid instruments in non-EU countries should be noted for the forthcoming OECD BEPS corollary provision.

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OECD / UN

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Transfer pricing documentation & BEPS: Refresh strategy

June 17, 2014

As time is of the essence for various OECD BEPS proposals to be made public, the interim time gap may be an excellent time to refresh global transfer pricing documentation strategies.  Several questions that may be addressed in a transparent and critique perspective include the following:

  • Have each of the BEPS proposals been matched to current TP methodology, questioning the future state of global TP documentation?
  • For current cooperative compliance relationships, is a discussion contemplated / scheduled to discuss the potential impacts of BEPS on the ongoing ways of working, including TP documentation?
  • Are future cooperative compliance relationships in focus, aligned with BEPS initiatives, especially among countries seeking unilateral legislative actions re: General Anti-Avoidance Rules (GAAR) implementation, etc.?
  • Are the attributes of a GAAR, including a taxpayer’s responsibility for GAAR compliance, being considered globally and /or in local country files?
  • Should compliance roles and responsibilities of TP compliance change re: internal / external resources due to BEPS with additional complexities envisioned?
  • If a Master File and Local Country file methodology is not currently in place, will there be a global and/or regional shift to such methodology?  What is the proposed timing for change?
  • Are the local tax return disclosures re: TP aligned with that country’s TP documentation?
  • What tax team / TP resources are being aligned to address the BEPS initiatives and proposed documentation?
  • Are tax policy statements of the Tax Risk Framework being reviewed for desired TP transparency?
  • Have there been “idea” meetings to discuss next steps in a creative atmosphere?

A BEPS / TP review will be valuable in aligning future vision, flexibility and transparency in today’s volatile atmosphere of TP assumptions and perceptions.

 

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Transfer Pricing

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European Commission report: TP adjustments/audit plan

June 7, 2014

The European Commission published a report 4 June 2014 on the work of the EU Joint Transfer Pricing Forum in the period July 2012 to January 2014.  The report highlights the effect, including double taxation, of secondary and compensating adjustments, in addition to a flowchart for a recommended transfer pricing audit plan.  The link to this report is included for reference, with key excerpts from the report:

Click to access com(2014)315_en.pdf

Secondary adjustments

The report presents the general aspects of secondary adjustments and gives recommendations on how to deal with possible double taxation in this context. Member States in which secondary adjustments are not compulsory are advised to refrain from making them in order to avoid double taxation. Member States in which secondary adjustments are compulsory are advised to provide ways and means to avoid double taxation.

Drawing on the EU Parent Subsidiary Directive (PSD) the report recommends characterising secondary adjustments within the EU as constructive dividends or constructive capital contributions. Accordingly, the PSD ensures that no withholding tax is imposed on the distribution from a subsidiary to its parent within the EU. For cases not covered by the PSD, the report describes and recommends the procedure of repatriation in the context of a Mutual Agreement Procedure (MAP) available under the respective applicable Double Taxation Agreement (DTA) or even at an earlier stage. Further it is recommended that Member States should refrain from imposing a penalty with respect to the secondary adjustment.

Compensating adjustments

The report recommends that Member States should accept a compensating adjustment initiated by the taxpayer (upward as well as downward adjustment), if the taxpayer has fulfilled certain conditions: the profits of the concerned related enterprises are calculated symmetrically, i.e. enterprises participating in a transaction report the same price for the respective transaction in each of the Member States involved; the taxpayer has made reasonable efforts to achieve an arm’s length outcome; the approach applied by the taxpayer is consistent over time; the adjustment has been made before the tax return is filed; in case a taxpayer’s forecast differs from the result achieved, the taxpayer is able to explain why this occurred, should it be required by at least one of the Member States involved.

The application of secondary adjustments may lead to double taxation. Therefore, if secondary adjustments are not compulsory, it is recommended that MS refrain from making secondary adjustments when they lead to double taxation. Where secondary adjustments are compulsory under the legislation of a Member State, it is recommended that Member States provide for ways and means to avoid double taxation (e.g. by endeavouring to solve it through a MAP, or by allowing the repatriation of funds at an early stage, where possible). These recommendations assume that the taxpayer’s behavior does not suggest an intent to disguise a dividend for the purpose of avoiding withholding tax.

When repatriation is agreed in a MAP settlement, it is recommended that the MAP agreement states that no withholding tax will be applied by the Member State out of which the repatriation is made and no additional taxable burden will be imposed in the Member State to which the repatriation is made.

As taxpayers may not be aware of the fact that in certain situations a separate request needs to be made for avoiding double taxation resulting from secondary adjustments, Member States which do not consider that secondary adjustments can be treated under the AC are encouraged to highlight in their public guidance the fact that a separate request under Art 25 OECD MTC may be needed to remove double taxation. For reasons of efficiency, it is recommended that taxpayers submit both requests in the same letter.

TP Audit Work Plan

This TP audit work plan is an example of the various steps that are typically performed during a TP audit (not a comprehensive audit) on the side of the taxpayer and on the side of the tax administration, respectively. It should be understood as an informative guide rather than as prescriptive rules. It is recognised that the structure suggested may not fit into all MSs’ and taxpayers’ legal framework and administrative practice. An underlying assumption of the work plan is that properly prepared documentation – as requested by local tax authorities – is available and well-trained staff act on both sides.

 

Re: Best Practices, this is an excellent document to review.  It explains secondary and corresponding adjustments, which are often areas overlooked in audits until the final assessment is issued and the audit has been settled in the primary jurisdiction.  Additionally, the TP audit work plan is a valuable document to develop Best Practices with the tax authorities in planning an audit, developing mutual trust and cooperation.  These principles should also be applied globally, not only within the EU.

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Transfer Pricing

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Tax Policy: Interaction of the Main Players & MNE’s

June 2, 2014

The executive summary of a paper entitled “The Structures and Mandates of Eight International and Regional Organizations That Work on Tax” was published earlier this year by the International Tax and Investment Center (ITIC) with the Vienna University of Economics and Business.  The link to the article is referenced herein:

http://www.iticnet.org/file/document/watch/4008

The executive summary provides valuable insights into tax structures and mandates of various organizations, including the IMF, World Bank and the UN.  The two primary sections are entitled “Who are the Main Players in the International Tax Arena” and “How can Business Interact with Different Groupings?”

The first section includes a description of the breadth of activities for the organizations, including  those of the UN that include transfer pricing, exchange of information, cross border VAT issues, taxes in climate change, financial transaction taxes, tax on foreign direct investment, and natural resource taxation.  The second section is very interesting reading, providing insights into how Multinationals (MNE’s) can proactively interact with the various tax policy making bodies.

The topics of tax policy, and interaction between the MNE’s and the relevant organizations, have evolved into very significant issues in today’s changing tax environment.  Roles in a MNE, and the necessity to proactively interact with such organizations has now become a necessity that will derive mutual benefits and win-win relationships.

 

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Tax Risk Management

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Tax Policy statement: A foundation of the Tax Risk Framework

May 27, 2014

EY has put forth a compelling article addressing the necessity of a company tax policy, stating it is not an option to delay action and hope the debate over transparency and what represents a fair share of tax will stop.  The article is referenced by the following link:

http://taxinsights.ey.com/archive/archive-articles/the-future-of-tax.aspx

Key excerpts:

So how can companies adapt to this new landscape and best address the different concerns of these very engaged stakeholders? It starts with formally and carefully defining a company’s tax policy, which gives effective guidance from the board to the group tax function on what the company’s responsibilities and required behaviors are worldwide.

This policy needs to take account of the often conflicting interests of various constituencies, such as tax authorities, investors, employees, the media and the general public. In the future, a business model must adjust to recognize that, while commercial decisions must continue to take account of tax analysis, such analysis itself needs to include wider business risks.

A company’s tax policy will also help in determining how transparent a company wishes to be with stakeholders about its tax affairs. Companies are concerned that stakeholders could misinterpret the complex nature of their tax affairs.

Any effective tax policy needs to strike a balance between clearly communicating the risk appetite and approach of the company, while also managing all costs, including opportunity costs caused by its tax approach and its consequences regarding reputation and the risk of controversy.

 

Best Practice: One of the foundations, and a good starting point for the Tax Risk Framework, is a tax policy.  The policy should be drafted with the knowledge that it is a valuable tool which the tax authorities may request to better understand, and assess, the company’s global tax risk.

 

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Tax Risk Management

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Tax risk & controversy: EY highlights

May 19, 2014

Ernst & Young (EY) have published their 10th issue of T Magazine, highlighting the topics of tax risk and controversy.  The link is attached for reference:

Click to access tmagazine10-2012-low.pdf

Key Highlights:

  • GAAR, Burden of proof: Taxpayer, Tax authority or Shared; summary of 24 countries.
  • Sustained government pressure on tax compliance means tax risk is now an issue for corporate boards, not just tax directors.
  • Clarity is now the key attribute in any message about tax that companies convey to the outside world.
  • As emerging markets become more confident and sophisticated, they are challenging commonly applied international tax standards.
  • The OECD’s “Tax Inspectors Without Borders” program (details in a prior post of 9 June 2013) seeks to match demand from countries wanting assistance with complex international tax audits with the supply of international tax experts.
  • Companies need to improve local knowledge of risk rating processes in each Asian country, including key focus areas and potential audit triggers.
  • Organizations need to show a willingness to engage with policymakers and administrators to improve policy proactively.
  • Tax authorities are increasingly adopting the OECD’s concept of the  “economic employer” to determine tax liabilities, rather than a treaty residence rule.
  • Creating a PE is the biggest tax risk companies face from sending employees on business or assignments overseas.
  • An increasing number of companies have appointed a head of tax controversy to manage tax risk and its implications.
  • Companies must be prepared to become more transparent.

Tax risk and transparency are the new challenges to be met by multinationals.  The T Magazine is a valuable resource in understanding today’s risks, and the manner in which these issues will transform current standards into leading Best Practices, tax risk policies and processes.

 

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Tax Risk Management

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OECD Guidelines for MNE’s: A valuable tool in the Tax Risk Framework

May 14, 2014

The OECD published the OECD Guidelines for Multinational Enterprises (Guidelines) in 2011, this being the latest version of the Guidelines.

A unique feature of the Guidelines is the implementation of National Contact Points (NCPs), agencies established by adhering governments to promote and implement the Guidelines.  They also provide a mediation and conciliation platform for resolving practical issues that may arise. Chapter XI of the Guidelines, Taxation, that begins on page 60 outlines important concepts including timely tax compliance, cooperation with tax authorities, compliance with the letter and spirit of the tax laws and regulations of the relevant countries, and conforming transfer pricing principles to the arm’s length principle.

These principles should form an important foundation for a company’s Tax Policy and/or Tax Risk Framework, providing transparent objectives in the global tax risk profile.  The link to the Guidelines are provided for reference.

There is also a link to  the Annual Report on the OECD Guidelines for Multinational Enterprises 2013, which describes the activities undertaken to promote the observance of the Guidelines during the period June 2012 – June 2013.  The Annual Report outlines the role of the NCPs, and content of proposed violations (inclusive of Taxation), that have been submitted for review.  All OECD countries, and 11 non-OECD countries (Argentina, Brazil, Columbia, Costa Rica, Egypt, Latvia, Lithuania, Morocco, Peru, Romania and Tunisia) adhere to the Guidelines.

Click to access 48004323.pdf

http://www.keepeek.com/Digital-Asset-Management/oecd/governance/annual-report-on-the-oecd-guidelines-for-multinational-enterprises-2013_mne-2013-en#page175

The Guidelines should be a valuable Best Practice tool in a Tax Risk Framework, as well as the total risk framework of a multinational enterprise.

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OECD / UN

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TP disclosure on tax returns: Malaysia

May 7, 2014

The Malaysian Inland Revenue Board (MIRB) has added a new check box on the 2014 tax return form for corporate taxpayers to declare whether transfer pricing documentation has been prepared.  Contemporaneous documentation should be prepared accordingly (i.e. 7 months from the close of the financial year).  The KPMG Newsletter describing this new initiative is referenced at the following link:

Click to access tp-malaysia-may6-2014.pdf

Re: Best Practices, new transfer pricing boxes / questions on tax returns are becoming a common practice.  Some questions by a multinational to ensure proper governance for tax return transfer pricing disclosures include:

  • What internal governance mechanism is in place to alert the tax dept. timely of new disclosures for proper planning of contemporaneous documentation, etc.?
  • Is the tax return preparer / reviewer knowledgeable about the transfer pricing documentation processes in place to answer the questions accurately?
  • If a transfer pricing question is to be answered negatively (i.e., no documentation exists), is there adequate time to proactively address, as applicable?  Is there any correlative impact for a financial statement tax reserve?
  • For transfer pricing methodology questions, who ensures the proper methods are accurately disclosed?
  • Is there a pre-audit strategy, upon notification, to review tax return disclosures?
  • Is there a documented process in the global tax risk framework that alerts the tax dept. of new disclosures?

These questions, among others, should be discussed to ensure internal and external alignment in a corporation’s tax risk policy.

 

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Transfer Pricing

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TEI comments – OECD BEPS Action 2: Hybrid Mismatch Arrangements

May 6, 2014

Tax Executives Institute, Inc. (TEI) has provided comments on the OECD BEPS Action 2 proposal addressing hybrid mismatch arrangements.  The submission is referenced at the following link:

Click to access TEI%20Comments%20-%20OECD%20BEPS%20Action%202%20Hybrids%20-%20FINAL%20to%20OECD%201%20May%202014.pdf

Some key highlights of Submission:

  • Some suggested solutions are overly broad and administratively unworkable.
  • The comments are not limited to hybrid arrangements that are inappropriate or abusive.
  • Simultaneous adoption by countries is encouraged, versus a question of adoption and / or timing of adoption by countries.
  • Double taxation issues, with Competent Authority requests, may increase.
  • A “bottoms-up” approach, applying only to instruments held between related parties, is recommended, using a 50% or greater rule for related parties.
  • For deductible payments not included in “ordinary income” of the holder’s jurisdiction, the term “ordinary income” should be expanded.
  • Further clarification could be provided by delineating how two countries that simultaneously apply their domestic anti-hybrid instruments can coordinate their application.
  • The impact on financial accounting in application of the hybrid rules should be considered.
  • Recommended rules for hybrids will not always produce uniformity due to differing tax systems (i.e., worldwide or territorial).
  • An anti-abuse rule adopted by the OECD should only apply in narrowly targeted axes of abuse, with strict bright line tests.
  • Bilateral tax treaties are not a tool to address legal tax planning adopted by various countries.

TEI’s excellent comments provide further insight into this significant, and broad, proposal.  Accordingly, they should be reviewed to understand complexities of adopting a complex rule without increasing risks of double taxation, with increased pressures on the Competent Authority process.

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Transfer Pricing

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Introverts / Extroverts: Leadership Planning

May 2, 2014

Suzanne Bates publishes a highly recommended blog including leadership ideas and books to share; a reference to her Blog is accessed by the following link:

Power Speaker Blog by Suzanne Bates: Thoughts on Leadership and the Power of Communication:
http://www.bates-communications.com/powerspeakerblog/

A book recently recommended by Suzanne is entitled: Quiet: The Power of Introverts in a World That Can’t Stop Talking, by Susan Cain.  It highlights the importance of introverts, including differences in how they work with extroverts.  This book is also included in my Leadership Page: Books to Share.

Several ideas quickly materialize when talking about this subject:

  • Do you present ideas at a meeting necessitating immediate action for introverts and extroverts?  Do introverts have time to reflect and consider such actions prior to solution steps being introduced by extroverts?
  • An analogy for introverts vs. extroverts should also be considered for different cultures and how they work; some being more collaborative while others are more direct.  In a world of increasing diversity, this leadership trait should be practiced, and understood.
  • Are different personality characteristics of the team members understood by the team leader to ensure effective alignment?
  • Is this topic discussed among the team, allowing each member to understand different approaches by different individuals?
  • Are different responses by an introvert and extrovert embraced, including the phrases “I need a little time to think about this idea” and “Great, here is what I think we should do, when can we start?”
  • How do you effectively plan additional time for introverts to think about leading a meeting, or making a presentation?
  • How can introverts be extroverts in certain circumstances?
  • Are different people leading meetings?

Leaders need to understand the power of effectively communicating with different cultures and personalities, including introverts and extroverts.  This skill is often assumed and / or overlooked in career development.  It may be a good time for self-reflection to understand Best Practices, thereby becoming a more effective leader.

 

 

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Leadership

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Meeting of G5 Ministers: Tools to fight tax fraud & evasion

April 28, 2014

The Governments of France, Germany, Italy, Spain and the UK (G5) held a meeting on 28 April, 2014 to discuss progress on their mutual objectives to promote tax transparency and cooperation, fight tax fraud and evasion, counter harmful tax practices and respond to aggressive tax planning practices.  The following link provides detailed actions that were discussed:

Click to access Comunicado%20del%20G-5%20sobre%20reunión%20en%20Par%C3%ADs%2028%20abril%202014%20en%20inglés.pdf

Summary of discussions:

  • Agreement to sign the Automatic Exchange of Information (AEOI) agreements in alignment with the new, single, global OECD standard, joining 39 other jurisdictions that will effect exchange of information in 2017 with respect to 2015 data.
  • Reiteration of support to the OECD Base Erosion and Profit Shifting (BEPS) project.
  • Re: taxation of digital economies, the countries where companies conduct economic activities must be able to receive their “fair share” of tax.  To align this initiative, the G5 Ministers agreed on the interest of a flexible interpretation of the territoriality rules, including a Digital Tax Presence concept.
  • Transfer pricing rules must be adapted to ensure that profit and value creation are aligned, citing economic justification.
  • Tax avoidance re: hybrid mismatch arrangements should be addressed.
  • Country-by-Country (CbC) reporting is important, as it should provide all relevant tax administrations with the information necessary to complete a high level risk assessment.
  • OECD BEPS developments must be reflected at the EU level, encouraging review of the EU law and its impact on aggressive tax planning practices.

The conclusions set forth are significant for the following reasons:  Proposal by the G5, EU focused, collaborative discussions and agreement re: “fair share” of tax alignment, economic justification profit / value drivers, and a presumption that CbC reporting will provide information to complete a relevant risk assessment.

These initiatives should be monitored in alignment with the OECD BEPS proposals set forth for 2014 and 2015.

 

 

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OECD / UN

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Australia draft TP ruling: need for comment

April 25, 2014

The Australian Taxation Office (ATO) has issued a draft transfer pricing law introducing subjective provisions that would be enforced via self-assessment.  PwC has provided relevant details in the following link:

Click to access Australia-ATO+draft+ruling+-reconstruction+of+transactions+04252014.pdf

Key Aspects of Ruling:

  • Transactions would be reconstructed, with various exceptions
  • Self-assessment mechanisms are required, based on consistency with 2010 OECD Transfer Pricing Guidelines, for three exceptions:
  1. Form is inconsistent with substance
  2. Independent entities would have instead entered into other transactions that differ in substance from the actual transactions
  3. Independent entities would not have entered into commercial or financial relations at all
  • The taxpayer needs to hypothesize what independent entities behaving in a commercially rational manner would have done.  If different from the actual transactions, identification of the arm’s length conditions must be based on what the independent entities would have done
  • Thin capitalization reconstruction provisions are included in the self-assessment analysis
  • Comments are due by 30 May 2014

All interested parties should review this ruling, including the Appendix that does not form part of the binding ruling.  There are many reasons why the draft ruling will be difficult to implement by multinationals and the ATO, primarily due to the subjective content and process of hypothesizing.  Additionally, double taxation issues should be addressed re: reconstructed transactions and corresponding adjustments, as well as alignment and intent of the OECD provisions cited.

 

 

 

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Transfer Pricing

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TP profiles: EU Joint Transfer Pricing Forum update

April 21, 2014

The EU Joint Transfer Pricing Forum has published a valuable update highlighting local country perspectives on a common criteria.  The link is attached for reference:

http://ec.europa.eu/taxation_customs/taxation/company_tax/transfer_pricing/forum/index_en.htm#tpprofiles

The common criteria provided by each country is as follows:

  1. Reference to the Arm’s-Length Principle
  2. Reference to the OECD TP Guidelines
  3. Definition of related parties
  4. Transfer pricing methods
  5. Transfer pricing documentation requirements
  6. Specific audit procedures and/or specific transfer pricing penalties
  7. Information for small and medium enterprises on transfer pricing
  8. Information on dispute resolution
  9. Relevant regulations on Advanced Pricing Arrangements
  10. Links to relevant government websites
  11. Other relevant information

Countries included in the update consist of:

  • Austria
  • Belgium
  • Bulgaria
  • Croatia
  • Cyprus
  • Czech Republic
  • Denmark
  • Estonia
  • Finland
  • France (coming soon)
  • Germany (coming soon)
  • Greece
  • Hungary
  • Ireland
  • Italy
  • Latvia
  • Lithuania
  • Luxembourg
  • Malta
  • Netherlands
  • Poland
  • Portugal
  • Romania
  • Slovakia
  • Slovenia
  • Spain
  • Sweden
  • UK

The information is highly relevant and should be used as a primary resource re: the respective country’s views on transfer pricing, OECD alignment and dispute resolution methodologies.

For Best Practices, the information should be compared with the transfer pricing documentation prepared re: the arm’s-length principle and consistency of audit principles by tax authorities.

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Transfer Pricing

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OECD BEPS Action Plan 1: Digital Economy – TEI’s comments

April 16, 2014

Tax Executives Institute, Inc. (TEI) has submitted comments in response to OECD’s discussion draft on BEPS Action 1: Address the Tax Challenges of the Digital Economy.  The link for the submission is provided for reference:

Click to access TEI%20Comments%20-%20OECD%20Action%20Item%201%20-%20Digital%20Economy%20-%20FINAL%20to%20OECD%2013%20April%202014.pdf

Some of the key comments include:

  • TEI agrees that ring-fencing the digital economy as a separate sector with unique tax rules would be neither appropriate nor feasible.
  • Technology companies face similar challenges as other businesses in moving assets and people, a view not assumed in the Discussion Draft.
  • TEI opposes options set forth in Section VII, including modifications to the PE exemptions, a new nexus standard based on significant digital presence, a virtual PE, and creation of a withholding tax regime on digital transactions.  These options are all generally unworkable.
  • The options set forth above are not aligned with G20’s statement that profits should be taxed where they are located.
  • Other measures noted in the Discussion Draft would aim to restore taxation in both the market country and the country of the ultimate multinational parent.  TEI notes that many of the issues that  these measures are designed to address are the result of deliberate tax policy of the OECD’s Member States.  It is these policies that create the low effective tax rates.

The comments provide thoughtful and practical business considerations that should be considered when formulating principles for international tax policy.  The digital economy issue is very complex, challenging and should be monitored to address proposals by the OECD, Member States and other countries for transformation.

 

 

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OECD / UN

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Treaty overrides: India’s High Court comments

April 14, 2014

The PwC News Alert, issued today, highlights statements of India’s High Court re: treaty override situations in a recent decision of Vodafone South Ltd.  These statements are significant in determining whether retrospective amendments can override treaty benefits.  The link to the Alert is attached for reference:

Click to access pwc_news_alert_14_april_2014__vodafone_south_ltd.pdf

Important observations noted in the Alert:

  • Sovereign power extends to “breaking” a tax treaty.
  • Unilateral cancellation of a tax treaty through an amendment to domestic law, subsequent to conclusion of a tax treaty, is a recognized sovereign power.
  • If , after the tax treaty came into force, an Act of Parliament was passed which contained a provision contrary to the tax treaty, the scope and effect of the legislation could not be curtailed by the tax treaty.
  • India is not a signatory to the Vienna Convention on the Law of Treaties (Vienna Convention), although such principles have previously been relied on by several Indian courts as such concepts have been accepted as a source of international law.

The concept of treaty override is becoming a very significant issue, evidenced by various GAAR provisions that have been enacted in domestic law that override general tax treaty provisions.  Additionally, recently released OECD draft on BEPS Action Plan 2 (22 March 2014 post) highlights the complex interplay of GAAR provisions with primary and linking mechanism proposals set forth to ensure consistency and uniformity.

In summary, the concepts of the Vienna Convention, combined with current events and complexities re: tax treaty override, merit special attention as tax audits become more complex leading to costly and lengthy appeals, while legislated issues become more subjective all leading to additional cases of double taxation and controversies based on uncertainties of international tax law.

 

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Transfer Pricing

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