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Vol 23 No 3 March/April 2018

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Beneficial Ownership in International Tax Law

ISBN13: 9789041168337
Published: July 2016
Publisher: Kluwer Law International
Country of Publication: The Netherlands
Format: Hardback
Price: £119.00

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In international tax law, the term ‘beneficial ownership’ refers to which parties involved in a cross-border transaction are entitled to tax treaty benefits.

However, determining beneficial ownership is a complex and often disputed issue, subject to different meanings in different countries. Archival research on its early use in tax treaties and in the developing OECD Model reveals that its meaning has changed dramatically over the decades, leading to new interpretations significantly affecting current tax practice and scholarship.

This book, dedicated to establishing how beneficial ownership should ideally be interpreted, compares the use and interpretation of beneficial ownership, both current and historical, in a wide range of national jurisdictions as well as the EU, ultimately shedding a clearer light than has heretofore been available on the meaning of the term.

In her very thorough analysis of the application of beneficial ownership, the author touches on such aspects as the following:-

  • historical development of the beneficial ownership requirement as used in tax treaties and in the OECD Model Tax Convention on Income and on Capital;
  • rules of double taxation conventions;
  • application of the OECD’s Action Plan on Base Erosion and Profit-Shifting (BEPS);
  • the problem of so-called ‘white income’;
  • use of the substance-over-form principle;
  • attribution-of-income rules; and
  • the role of agents, nominees, and conduit companies.
Specific analysis of the use and interpretation of beneficial ownership in a domestic law and treaty context in numerous jurisdictions – with particular emphasis on the United Kingdom, Australia, the United States, and Germany – is a major feature of the presentation.

As a thorough guide to determining whether a person claiming tax treaty benefits is the true owner – and which parties are excluded from treaty benefits and to what extent – this book will be of immeasurable value to lawyers, tax authorities, policymakers, and other professionals working with taxable international transactions of any kind

List of Abbreviations

Chapter 1 Introduction
I. Introduction to Beneficial Ownership and Purpose of the Book
II. Structure of the Book

Chapter 2 General Rules and Principles concerning the Interpretation of Tax Treaties
I. Vienna Convention on the Law of Treaties
II. The Purpose of Tax Treaties
III.The Substance-over-Form Principle
IV. Attribution-of-Income Rules

Chapter 3 Beneficial Ownership in the OECD Model
I. Overview
II. Historical Development of Beneficial Ownership in the OECD Model
III. Conclusion: Beneficial Ownership in the OECD Model

Chapter 4 Scholarly Discussion
I. Klaus Vogel
II. Charl du Toit
III. Stef van Weeghel
IV. Philip Baker
V. Luc De Broe
VI. Jerome Libin
VII. John Avery Jones, Richard Vann and Joanna Wheeler
VIII. Joanna Wheeler
IX. Robert Danon
X. Adolfo Martín Jiménez
XI. Franz Wassermeyer
XII. Michael Lang
XIII. Eric Kemmeren
XIV. Saurabh Jain
XIV. Conclusion: Scholarly Approaches to Beneficial Ownership
XVI. Beat Baumgartner

Chapter 5 Country Reports
I. United Kingdom and Australia
II. Germany
III. United States
IV. Beneficial Ownership in Other Countries
V. Conclusion: Approaches to Beneficial Ownership in Different

Chapter 6 A Domestic Law Meaning of Beneficial Ownership
I. Art.
3(2) OECD Model
II. Art.
3(2) OECD Model and Beneficial Ownership

Chapter 7 Beneficial Ownership in EU Legislation
I. EU Interest and Royalties Directive (2003)
II. EU Savings Directive (2003/2014)
III. Conclusion: Beneficial Ownership in EU Legislation

Chapter 8 Other Aspects to Consider in Determining the Meaning of Beneficial Ownership
I. The Limitation of Tax and the Appropriate Allocation of Taxing Rights
II. Beneficial Ownership in Other Provisions Apart from Art.
10-12 OECD Model
III. The Translation of Beneficial Ownership in Different Languages
IV. Multiple Beneficial Ownership

Chapter 9 Specific Approaches to Beneficial Ownership and Their Particularities
I.Beneficial Ownership as a Broad Anti-Avoidance Rule
II. The Attributes-of-Ownership Approach
III. The Forwarding Approach
IV. The Attribution-of-Income Approach

Chapter 10 How Should Beneficial Ownership Ideally Be Interpreted?
I. What Is Known about Beneficial Ownership?
II. The Object and Purpose of Tax Treaties
III. The Appropriate Scope of Beneficial Ownership and the Suitability of Different Approaches to Beneficial Ownership
IV. Beneficial Ownership as a Liability-to-Tax-with-the-Specific-Income Test or a Subject-to-Tax Test?
V. Issues with the Liability-to-Tax-with-the-Specific-Income Approach
VI. Is Beneficial Ownership Still Necessary?

Chapter 11 Conclusion: Back to the Roots!

Table of Cases