scholarly journals Trends and sources of international taxation = Tendencias y fuentes de la fiscalidad internacional

2019 ◽  
Vol 11 (1) ◽  
pp. 438
Author(s):  
Carlos María López Espadafor

Abstract: International Tax Law has grown significantly and this has caused a considerable in­crease in the importance of the legislative production affecting it, through both national and internatio­nal rules. Within those rules of international origin, conventions intended to avoid international double taxation stand out, essentially those following the OECD model. Along with this and also within Eu­ropean Union law, there has been a significant structuring of the rules involving international taxation. That said, we can never lose sight -upon the basis of the dogmatic structuring of international taxation- of the General International Law rules affecting it. These may occasionally be overshadowed by the rules of the countless international conventions on the matter, but the former rules cannot cease to be taken as the basis. Therefore, the globalized structuring of international taxation cannot ignore the gene­ral principles upon which it will be based, either as direct sources in matters of international tax law, or as a sub-discipline within tax law proper. Indeed, the national structuring of international tax law cannot be carried out just by taking into consideration the legislative results of globalization, but also by never losing sight of the principles that lead to general international law tax matters. Even though globaliza­tion as a process begins to play a greater role in tax law issues, the country’s national examination of international tax law cannot divert from the general basis of this tax law sub-discipline.Keywords: International taxation, Financial and Tax Law, International Tax Law, General International Law, sources of Law.Resumen: La fiscalidad internacional ha experimentado un gran crecimiento, aumentando con­siderablemente el volumen de producción normativa que le afecta, ya se trate de normas de origen internacional o de normas de origen interno. Dentro de las fuentes de origen internacional que le afec­tan, destacan especialmente los convenios para evitar la doble imposición internacional, esencialmente siguiendo el Modelo de la OCDE. Junto a ello, también dentro de la disciplina jurídica de la Unión Eu­ropea se ha producido un importante desarrollo de las normas que afectan a la fiscalidad internacional. Ahora bien, en la base de la construcción dogmática de la fiscalidad internacional no se deben perder de vista las normas de Derecho Internacional General que le afectan, ensombrecidas a veces por las normas de los numerosísimos convenios internacionales en la materia, pero que éstos no pueden dejar de tomar como base. Así pues, el desarrollo globalizado de la fiscalidad internacional no puede desconocer los principios generales que le deben servir de base, ya sea como fuentes directas en materia de fiscalidad internacional, ya sea como bases esenciales sobre las que conformar la fiscalidad internacional, como subdisciplina dentro de la disciplina tributaria. Incluso el desarrollo a nivel interno de la fiscalidad inter­nacional no se puede hacer sólo tomando en consideración los resultados normativos del fenómeno de la globalización, sino que debe hacerse también sin perder nunca de vista los principios que derivan en materia tributaria del Derecho Internacional General. Aunque el fenómeno globalizador cobre un espe­cial protagonismo en materia tributaria, la contemplación interna de la fiscalidad internacional no puede alejarse de las bases generales de esta subdisciplina tributaria.Palabras clave: Fiscalidad internacional, Derecho Financiero y Tributario, Derecho Internacional Tri­butario, Derecho Internacional General, fuentes del derecho.

2021 ◽  
Vol 23 (1) ◽  
pp. 79-103
Author(s):  
Dirk Broekhuijsen ◽  
Irma Mosquera Valderrama

Abstract Customary international tax law has traditionally not received a lot of acclaim in international tax law literature. However, the infrastructure of international tax law is becoming increasingly multilateral. The recent adoption of the Multilateral Instrument and the creation of the Inclusive Framework, two initiatives related to the OECD/G20 Base Erosion and Profit Shifting Project, have accelerated the width of cooperation on international tax matters. For that reason, the authors (re)consider the existence of customary international law in the area of international tax law. They conclude that, perhaps contrary to the intuition of tax lawyers, the evidence in favour of customary international tax law is building up. The question whether customary law exists within the area of international taxation is therefore not misplaced.


2020 ◽  
Vol 23 (3) ◽  
pp. 747-769
Author(s):  
Céline Braumann

ABSTRACT Scholars of public international law have not paid attention to international tax law in the past. This article seeks to fill this vacuum and to foster cross-field research by studying customary international law in international tax law. It assesses the value of international tax law’s most prominent feature for the identification of custom: the dense network of almost identical, bilateral double tax treaties. The primacy of source-based taxation for business profits serves as a test case for this purpose. The International Law Commission’s conclusions on the identification of customary international law constitute the theoretical reference point that informs the empirical analysis. Thus, this article simultaneously serves as a treadmill test to appraise whether the International Law Commission’s conclusions actually offer practical guidance. The analysis culminates in the conclusion that tax treaties have only little value for the identification of customary international law. First, tax treaties alone do not entail representative state practice. Second, tax treaties give rise to the pitfalls of the Baxter paradox. Third, the tax treaty network yields no evidence that any state practice originates from opinio juris. Judging by the evidence brought into play so far, states likely display uniform treaty practice in international taxation because they believe it is in their best interest, not due to any legal conviction.


2017 ◽  
Vol 6 (2) ◽  
pp. 312
Author(s):  
Shkumbin Asllani

In today’s international taxation most of the developing countries enter into tax treaties which are drafted in line with the OECD MC to eliminate double taxation. Yet, is well-known fact that tax treaties in practice are abused by tax payers, therefore, majority of states have introduce legislation specifically designed to prevent tax avoidance and protect their domestic interests. In legal practice and literature the act of overriding international tax treaties and denying treaty benefits in favour of domestic law provisions threatens main principle of international law and therefore is questionable to what extend the relationship between domestic law and international tax treaty agreements bridges the international norms.


2019 ◽  
Vol 23 (37) ◽  
pp. 1-15
Author(s):  
Florin Dumiter ◽  
Ștefania Amalia Jimon ◽  
Florin Gheorghe Bene

Abstract International double taxation represents one of the main problems’ for which taxpayers have to deal within a world fulfilled with globalization, uncertainty, risk, asymmetrical information and moral hazard. In this sense, in this article it is provided a qualitative overview regarding the appearance and evolution of the main double taxation conventions and their legal framework. In this article it is tackled some important issues, namely: the rationale behind the construction and engaging in double taxation conventions; the need for a coherent and just application of those conventions; the historical appearance and evolution of the double taxation conventions, as well as the quid pro quo OECD Model Convention and UN Model Convention. The conclusions of this article highlight the importance and ultimately need for construction of best practices new and complex multilateral tax convention at the UE level in order to diminish the contagious effects of the treaty shopping practices. The case study presented in this article from the Romanian jurisprudence highlights the multi-faced concept of double taxation and the comprehension approach which must be undertaken in order to solve the complex issues of the international taxation via double taxation treaties.


Author(s):  
S. O. Kushu

International tax law is one of the most important components of international taxation, since it contributes to the establishment of universal principles for the collection of taxes in the globalizing system of world economic relations, and also affects the transparency of the borders between national tax jurisdictions. International legal regulation of taxation is designed to solve numerous disputes between different countries of the world, the conflict of national legal systems in a kind of struggle for the right to impose incomes of subjects of international economic relations. In a broad sense, international tax law is understood as a set of international legal principles and norms governing interstate relations in the tax sphere. At the same time, the national taxation systems and the legal principles of their organization in the current system of world economic relations have fairly stable sovereignty. They remain highly autonomous, despite the continuously increasing impact of factors of the external economic and tax environment.


2021 ◽  
Vol 23 (5) ◽  
pp. 100-108
Author(s):  
Anastasia Nevskaya ◽  

The article examines the combination of the Netherlands’ departure from the role of a transit jurisdiction for capital from all over the world and their struggle to attract the headquarters of multinational companies, including those migrating from the UK due to Brexit. It is shown that these processes are due to both fundamental reasons and the current need of countries for tax refunds to replenish their budgets to cover the consequences of the pandemic crisis. The author comes to the conclusion that the restructuring of the rules of international tax regulation which is going on now, may cause clashes of countries’ interests and strategies, which is illustrated by the example of the breakdown of the Agreement on the avoidance of double taxation between Russia and the Netherlands.


2020 ◽  
Vol 33 (3) ◽  
pp. 745-766
Author(s):  
Irma Johanna Mosquera Valderrama

AbstractThe overall aim of this article is to analyse the principal purpose test as an emerging rule of customary international tax law. By means of the principal purpose test, the tax administration can deny the tax treaty benefit if one of the principal purposes of the action undertaken by the taxpayer was to obtain a benefit. This principal purpose test has been developed by the OECD with the political support of the G20 as one of the actions to tackle Base Erosion and Profit Shifting by multinationals (BEPS Project). At the time of writing, 137 jurisdictions including non-OECD, non-G-20 countries have committed to the implementation of the principal purpose test in their current and future tax treaties. Based on the analysis of the objective element (state practice) and subjective element (accepted as law), there are indications that this principal purpose test can emerge as a principle of customary international law. In the past, international tax law scholars addressed the customary international law regarding the OECD/UN tax treaty Models, the OECD Harmful Tax Practices, and the arm’s length principle. However, current international tax developments, including the BEPS Project, call for an analysis of the main elements of customary international law in respect of the principal purpose test, a general anti-avoidance rule that by its own nature, is often general, vague, and imprecise. Therefore, the findings of this article can be useful for generating new areas of research by international public law, international law, and international tax law experts.


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