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United Nations United Nations Model Tax Convention: Model Tax Convention: Key Features of the Update Key Features of the Update ECOSOC Special Meeting ECOSOC Special Meeting 15 March 2012 15 March 2012 Michael Lennard Michael Lennard Chief, International Tax Cooperation Section Chief, International Tax Cooperation Section Financing for Development Office, United Nations Financing for Development Office, United Nations lennard@un.org lennard@un.org 2 2 A Key Aspect of the UN Model A Key Aspect of the UN Model • • The various model double tax treaties try to The various model double tax treaties try to resolve the problem that under international resolve the problem that under international economic law economic law both the place of an investment/ both the place of an investment/ provision of goods or services ("the source provision of goods or services ("the source country") and also the "residence country" of the country") and also the "residence country" of the investor/ provider can legitimately tax profits investor/ provider can legitimately tax profits from from such investment or provision. such investment or provision. • • It is a problem because most countries tax on It is a problem because most countries tax on both both a source and a residence basis a source and a residence basis – – the resulting the resulting double taxation dampens investment, which is bad double taxation dampens investment, which is bad for both countries. for both countries. 2 2 3 3 A Key Aspect of the UN Model A Key Aspect of the UN Model • • All double tax treaties All double tax treaties seek to avoid double seek to avoid double taxation due to overlapping taxing rights. taxation due to overlapping taxing rights. 3 3 Scope of domestic tax law Scope of domestic tax law Developing Country Taxing Rights (country of investment) Developed Country Taxing Rights (country of Residence of Investor) 4 4 A Key Aspect of the UN Model A Key Aspect of the UN Model 4 4 5 5 A Key Aspect of the UN Model A Key Aspect of the UN Model 5 5 6 6 A Key Aspect of the UN Model A Key Aspect of the UN Model • • So double taxation can be avoided by So double taxation can be avoided by many ways of balancing source and many ways of balancing source and residence country taxing rights. residence country taxing rights. • • … … but the impact on domestic but the impact on domestic resource resource mobilisation mobilisation (e.g. funding (e.g. funding for meeting for meeting MDGs MDGs ) and ability to have ) and ability to have reserves to cope with shocks can be reserves to cope with shocks can be quite different for the source country. quite different for the source country. 6 6 7 7 A Key Aspect of the UN Model A Key Aspect of the UN Model • • Under tax treaties, Under tax treaties, residence countries must residence countries must generally give credit for source country taxes generally give credit for source country taxes allowed by the treaty, and only have residual taxing allowed by the treaty, and only have residual taxing rights rights . . • • So the real question in most treaty negotiations is So the real question in most treaty negotiations is how much of its taxing rights will the source how much of its taxing rights will the source country give up country give up (allowing more residual rights to (allowing more residual rights to the residence country)? the residence country)? • • OECD countries tend to be net capital exporters OECD countries tend to be net capital exporters and the OECD Model (the other main model) and the OECD Model (the other main model) generally favours the residence country. The generally favours the residence country. The UN UN Model favours more retention of source country Model favours more retention of source country taxing rights. taxing rights. 7 7 8 8 Threshold for Source Country Taxation Threshold for Source Country Taxation of Business Profits of Business Profits • • Article 5 Article 5 (Permanent Establishment/ "PE") (Permanent Establishment/ "PE") - - Updated and clarified. Updated and clarified. - - A key concept A key concept – – the level of the level of economic economic engagement/ footprint engagement/ footprint required to justify source required to justify source country taxation of country taxation of business profits business profits under under treaties. treaties. - - Generally Generally lower/ more readily met under UN lower/ more readily met under UN Model. Model. - - So more likely double taxation is avoided by So more likely double taxation is avoided by source country being allowed to tax source country being allowed to tax and the and the residence country of the taxpayer only having residence country of the taxpayer only having residual rights. residual rights. 8 8 9 9 Threshold for Allowing Source Country Taxation Threshold for Allowing Source Country Taxation • • OECD Model OECD Model – – majority view says majority view says same rules same rules for for whether the level of economic engagement whether the level of economic engagement justifies more source country taxation in cases justifies more source country taxation in cases of of services as in provision of goods services as in provision of goods . . • • UN Model UN Model says the concept of what is sufficient says the concept of what is sufficient economic engagement differs between goods economic engagement differs between goods and services. and services. – – shouldn shouldn ’ ’ t be obsessed in looking for offices t be obsessed in looking for offices , "bricks , "bricks and mortar" etc in particular geographical parts of and mortar" etc in particular geographical parts of your country and examining the connections between your country and examining the connections between those offices. those offices. – – if services are being provided over a reasonable period if services are being provided over a reasonable period of time in your country of time in your country – – that should be enough. that should be enough. 9 9 10 10 Threshold for Allowing Source Country Taxation Threshold for Allowing Source Country Taxation • • Tax treatment of services is Tax treatment of services is a main a main distinguishing characteristic between the two distinguishing characteristic between the two models. models. • • And a bigger issue than when the UN and OECD And a bigger issue than when the UN and OECD Models were first "built". Models were first "built". • • In fact, In fact, the UN Model has probably influenced the UN Model has probably influenced the OECD Model the OECD Model to at least include expression of to at least include expression of a a minority view minority view which reflects the same sort of which reflects the same sort of approach as in the UN Model. approach as in the UN Model. • • A A major project of examining services taxation major project of examining services taxation in a thoroughgoing way is underway in the UN in a thoroughgoing way is underway in the UN Tax Committee. Tax Committee. 10 10 . of the Update ECOSOC Special Meeting ECOSOC Special Meeting 15 March 20 12 15 March 20 12 Michael Lennard Michael Lennard Chief, International Tax Cooperation. Financing for Development Office, United Nations lennard@un.org lennard@un.org 2 2 A Key Aspect of the UN Model A Key Aspect of the UN Model • • The various