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International Tax Quiz (ITQ)

Tax treaty series

Go to GloBE rules series

 

Abbreviations and acronyms

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* [YEAR]OECD = OECD model double tax treaty
* [YEAR]UN = UN model double tax treaty
* [YEAR]USMODEL = US model double tax treaty
* TPG = OECD Transfer Pricing Guidelines
* POEM = Place of effective management
* MLI = BEPS Multilateral Instrument
* PPT = Principal purpose test
* Comm = Commentary
* AOA = Authorised OECD Approach
* POAC = Preparatory or auxiliary character

 

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Numbering system

There are currently more than 240 ITQs. They are arranged in 2 series:

  • GloBE rules series (ITQ G-001, ITQ G-002, etc.)

  • Tax treaty series (ITQ T-001, ITQ T-002, etc.)

ITQ  T-

091

Key issues:

  • 2017OECD

  • Art. 5(5) & Art. 5(6)

  • Art. 10(5)

  • Dividend-paying company is non-resident

  • Art. 1

  • In taxing country, profits of dividend-paying company are deemed sourced on a formulaic basis

  • In taxing country, no PE of dividend-paying company

  • Madeira & Neves, “Exploring the boundaries of the application of Article 10(5) of the OECD Model” (Intertax)

  • See also ITQ 012

  • Triangular

More

Date Uploaded:

June 18, 2021

ITQ  T-

089

Key issues:

  • 2014OECD

  • Art. 5(1)

  • Art. 5(4)(d) and Art. 5(4)(e)

  • Art. 5(5)

  • “habitually”

  • mere signature of contracts, no decision-making function

  • power of attorney

  • profit attributable to PE

  • significant people functions

  • Art. 7

More

Date Uploaded:

June 4, 2021

ITQ  T-

087

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Key issues:

  • 2017OECD

  • 2008OECD

  • MLI, PPT

  • Beneficial owner

  • Dividends

  • Danish case: NetApp (Case 117/16)

  • “Look through”

  • Conduit company

  • Art. 10(1), Art. 10(2)

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Date Uploaded:

May 21, 2021

ITQ  T-

085

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Key issues:

  • 2017OECD

  • Restaurant: branch operated during Olympic Games

  • PE

  • Art. 5(1), time test, short period (one month), only place of operation globally

  • Secondment of employees, no PE

  • Royalties – use of name, provision of knowhow (recipes)

  • Art. 12, “arising” not defined, Art. 3(2)

  • Deductible in computing profits attributable to PE

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Date Uploaded:

April 30, 2021

ITQ  T-

083

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Key issues:

  • 2017UN

  • Arts. 7, 12A, 14

  • Art. 12A(3)

  • Art. 14: no equivalent to contract-concluding agency PE

  • Art. 7(6)

  • Art. 12A has priority over Arts. 7 and 14

  • Art. 12A does not apply to services for personal use of individuals

More

Date Uploaded:

April 16, 2021

ITQ  T-

081

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Key issues:

  • 2014OECD

  • Art. 5(5)

  • authority to conclude contracts

  • Valueclick case

  • Paras. 32.1 and 33 2014 OECD Comm

  • Art. 7

  • Profit attributable to agency PE

  • AOA

  • ostensible authority

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Date Uploaded:

March 26, 2021

ITQ  T-

090

Key issues:

  • 2017UN

  • Art. 12A

  • Art. 5(1), time test, recurrence principle

  • Art. 5(3)(a)

  • Supervisory activities

  • Art. 5(3)(b)

  • Interaction between Art. 5(1), Art. 5(3)(a) & Art. 5(3)(b): does any provision exclude the other 2? No – for Art. 5(3)(a) vs. Art. 5(3)(b), see 2017 OECD Comm, para 147

  • Amendment of Art. 5(3)(b) in 2017UN: removal of “same or connected project” condition

  • Art. 5(3)(b): measurement of time – actual days of work – weekends, public holidays, sick days – remember comments in OECD Comm

More

Date Uploaded:

June 11, 2021

ITQ  T-

088

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Key issues:

  • 2017OECD

  • PPT, Art. 29(9)

  • TPG, 2017TPG

  • Interest

  • Art. 11(2)

  • Art. 23A, Art. 23B

  • Foreign tax credit

  • Para. 10.25, 2017TPG

  • Risk-free return

  • Key decisions on issuing shares and making loan

  • Little or no substance

More

Date Uploaded:

May 28, 2021

ITQ  T-

086

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Key issues:

  • 2017OECD

  • Art. 13(1) gain, Art. 13(5) gain, Art. 13(5) loss

  • Cherry picking

  • Inconsistency

  • Does “gains” include “losses”?

  • US Rev. Rul. 84-17

  • Bessemer Trust case

  • Brian Arnold

More

Date Uploaded:

May 7, 2021

ITQ  T-

084

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Key issues:

  • 2017OECD

  • Arts. 6, 7, 7(1), 7(4), 24(3)

  • Gold mine

  • Art. 6 excludes Art. 7

  • PE

  • Art. 6: gross basis taxation

  • Although Art. 6 excludes Art. 7, Art. 24(3) applies to force taxation on net basis

  • Less favourably levied

More

Date Uploaded:

April 23, 2021

ITQ  T-

082

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Key issues:

  • 2017OECD

  • Art. 4(1)

  • defn of “resident”

  • territorial system

  • “liable to tax”

  • comprehensive liability to tax, full tax liability

  • Crown Forest case

  • para. 8.3, 2017OECD Comm on Art. 4

  • Hong Kong

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Date Uploaded:

April 9, 2021

ITQ  T-

080

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Key issues:

  • 2014OECD

  • PE

  • Home office

  • Art. 5(1): “at the disposal”

  • Art. 5(4): POAC

More

Date Uploaded:

March 19, 2021

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