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INTERNATIONAL COMMERCIAL TAX

second edition

International Commercial Tax (second edition) takes account of the

substantial developments of the last decade. With more than 60 per cent
new material, the book considers the outcomes of the OECD’s BEPS project
and the substantial consequential 2017 revisions of the OECD and UN
Model tax treaties. With the continuing rise in the economic importance of
non-OECD countries and the UK distancing itself from the EU, there has
been a refocusing with less direct attention on UK domestic law and greater
focus on the approaches of other significant countries, especially other
common law jurisdictions. This provides greater flexibility as to how a
particular point or issue is illustrated with practical examples. Greater
attention is given to the UN Model, which is increasingly important. The
book continues to compare the approach under model tax treaties with EU
law and is updated with copious references and illustrations from the
burgeoning jurisprudence of the EU Court.

peter harris is Professor of Tax Law at the University of Cambridge.

He is the author of five international tax books and has advised for the
IMF for more than twenty years, assisting more than a dozen countries in
drafting and reforming tax law and tax treaty policy. Harris also served as
a consultant to the DESA of the UN, contributing two chapters to its
Handbook on Protecting the Tax Base of Developing Countries.
 CAM BRI DGE T AX LAW

Tax law is a growing area of interest. It is included as a subdivision in

many areas of study and is a key consideration in business needs through-
out the world. Books in this series expose the theoretical underpinning
behind the law to shed light on taxation systems, so that the questions to
be asked when addressing an issue become clear. These academic books,
written by leading scholars, are a central port of call for information on tax
law, with content illustrated by case law and legislation. The books will be
of interest to those studying law, business, economics, accounting and
finance courses.
Series Editor
Professor Peter Harris, Law Faculty, University of Cambridge, Director of
the Centre for Tax Law.

Professor Harris brings a wealth of experience to the series. He has taught

and presented tax courses at more than a dozen different universities in as
many countries and has acted as an external tax consultant for the
International Monetary Fund for over twenty years.
INTERNATIONAL
COMMERCIAL TAX

second edition

PETER HARRIS
University of Cambridge
 University Printing House, Cambridge CB2 8BS, United Kingdom
One Liberty Plaza, 20th Floor, New York, NY 10006, USA
477 Williamstown Road, Port Melbourne, VIC 3207, Australia
314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre,
New Delhi – 110025, India
79 Anson Road, #06–04/06, Singapore 079906

Cambridge University Press is part of the University of Cambridge.

It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning, and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9781108477819
DOI: 10.1017/9781108774994
First edition © Peter Harris and J. David B. Oliver 2010
Second edition © Peter Harris 2020
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2010
Second edition 2020
Printed in the United Kingdom by TJ International Ltd, Padstow Cornwall
A catalogue record for this publication is available from the British Library.
Library of Congress Cataloging-in-Publication Data
Names: Harris, Peter, 1964– author.
Title: International commercial tax / Peter Harris, University of Cambridge.
Description: Second edition. | Cambridge, United Kingdom ; New York, NY : Cambridge
University Press, [2020] | Series: Cambridge tax law series | Includes bibliographical
references.
Identifiers: LCCN 2019042610 (print) | LCCN 2019042611 (ebook) | ISBN 9781108477819
(hardback) | ISBN 9781108774994 (ebook)
Subjects: LCSH: International business enterprises – Taxation – Law and legislation. |
Income tax – Foreign income. | Double taxation. | International business enterprises –
Taxation – Law and legislation – Great Britain. | Income tax – Great Britain – Foreign
income. | Double taxation – Great Britain.
Classification: LCC K4542 .H375 2020 (print) | LCC K4542 (ebook) | DDC 343.04–dc23
LC record available at https://lccn.loc.gov/2019042610
LC ebook record available at https://lccn.loc.gov/2019042611
ISBN 978-1-108-47781-9 Hardback
Cambridge University Press has no responsibility for the persistence or accuracy of
URLs for external or third-party internet websites referred to in this publication
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
 CONTENTS

Preface page xv
List of Abbreviations xvi

Introduction 1
1 Fundamentals and Sources of International Tax Law 9
1.1 Tax Fundamentals 9
What Are Taxes and What Are the Different Types? 9
Income Tax and Payments as Building Blocks 11
Other Taxes and Ways of Classifying Taxes 14

1.2 Sources of International Tax Law and Their

Interrelationship 16
1.2.1 Domestic Law 16
1.2.2 Tax Treaties 18
What Are They and Where Did They Come From? 18
How Tax Treaties Take Effect in Domestic Law? 23
What Taxes Do They Cover? 26
Can a Treaty Create or Increase Tax? 27
The Multilateral Instrument 29
1.2.3 EU Law 31
EU Treaties 31
Directives 32
1.2.4 Other Sources 33
GATT and GATS 33
Investment Treaties 35
European Convention on Human Rights 35

1.3 Approaches to Interpretation of Material 36

1.3.1 Domestic Law 36
1.3.2 Treaty Interpretation 37
Vienna Convention 39
Treaty Definitions 42

v
vi c o n t en t s
Commentaries 45
Which Commentary? 48
By Mutual Agreement 50
1.3.3 Interpretation of EU Law by the CJEU 51
1.3.4 Anti-abuse Rules and Their Interaction 55

2 The Jurisdiction to Tax 61

2.1 Forms of Economic Allegiance 62
2.1.1 The Person 63
2.1.1.1 Who Is a Person: The Tax Subject 64
Domestic Characterisation of Entities 65
Entities Organised under Domestic Law 65
Entities Organised under Foreign Law 68
Meaning of ‘Person’ in the OECD Model 71
2.1.1.2 Residence as a Connecting Factor 73
Domestic Law 73
‘Residence’ under the OECD Model 80
Primary Test 80
Tiebreakers 83
2.1.1.3 Beneficiaries of EU Law 87
2.1.2 The Activities 90
2.1.2.1 Characterising Income-Producing
Activities 91
Domestic Characterisation 91
OECD Model Characterisation 94
2.1.2.2 Locating the Activity 95
Domestic Law 95
Earning Activities 96
Allocating Payments 99
Problems in Allocating Business Profits 102
Assignment of Taxing Rights under the OECD
Model 105
2.1.2.3 Activities Covered by EU Law 106
FEU Treaty 106
Directives 111

2.2 Divided Allegiance: The Problems of Double Taxation

and Under-taxation 113
2.2.1 Principles 114
2.2.1.1 Tripartite Relationship 114
2.2.1.2 Economic Considerations 115
2.2.1.3 Cross-border Restrictions 119
OECD Model 120
EU Law 123
 c o n te n t s vii
2.2.1.4 Interstate Relationship 132
Internation Equity 132
Harmful Tax Competition and the BEPS
Project 134
EU Law Considerations 138
2.2.2 Methods of Allocating Taxing Rights 142
Double Tax Relief 143
Interstate Relationship 145

3 Source Country Taxation 149

3.1 The Recipient/Schedular Approach 150
3.1.1 Other Income 152
3.1.2 Income from Immovable Property 154
Immovable Property 155
Income From 158
EU Law 161
3.1.3 Business Profits: Subsidiary versus Permanent
Establishment 162
3.1.3.1 Enterprise of a Contracting State 163
3.1.3.2 Subsidiaries: Exclusive Taxation 167
3.1.3.3 Permanent Establishments: Shared
Taxation 169
3.1.3.3.1 What Is a Permanent
Establishment? 169
Physical Presence 170
General Test 171
Building Sites 176
Express Exclusions 178
Personal Presence 179
Agency Permanent
Establishment 180
Independent Agent
Exception 185
Services Permanent
Establishment 187
Position of Associated
Corporations 189
Artificial Avoidance of PE Status and
Digitalisation of the Economy 190
EU Law 192
3.1.3.3.2 Attribution of Profits: Separate Enterprise
Approach 194
Delineating Activities 196
viii co ntents
Calculating Profits 200
Real Transactions 201
Intra-enterprise Dealings 205
3.1.3.4 Discrimination in Taxation of Business
Profits 209
OECD Model 210
Permanent Establishments 210
Subsidiaries 213
EU Law 220
3.1.4 Dividends, Interest and Royalties 225
3.1.4.1 Dividends 226
OECD Model 226
Scope of Article 10 226
Limited Source Country Taxation 227
Portfolio Investors 227
Direct Investors 231
Dividends and PEs 232
EU Law 236
Parent-Subsidiary Directive 236
Fundamental Freedoms 239
3.1.4.2 Interest 246
OECD Model 246
Scope of Article 11 246
Limited Source Country Taxation 247
Interest and PEs 248
EU Law 250
3.1.4.3 Royalties 252
OECD Model 252
EU Law 254
3.1.5 Capital Gains 254
OECD Model 254
EU Law 260
3.1.6 Income from Employment and Independent Personal
Services 261
3.1.6.1 Employment 262
OECD Model 262
Employment 263
Salaries Etc. 267
Exercised In 269
Non-resident Employers 269
EU Law 270
3.1.6.2 Independent Personal Services 271
OECD Model 271
EU Law 275
 c o n te n t s ix

3.2 The Payer/Deductions and Base Eroding

Payments 276
Domestic Law 277
OECD Model 279
EU Law 281

3.3 Quantification and Characterisation Issues 284

3.3.1 Quantification: Transfer Pricing between
Associates 285
3.3.1.1 Identifying Associates 288
Generally under the OECD Model 288
Scope of Article 9(1) 289
3.3.1.2 Independent Enterprise Approach 295
Arm’s Length Pricing 297
Traditional Transaction Methods 299
Transactional Profit Methods 302
Problem Areas: Services and Intellectual
Property 305
Administrative Matters 308
Special PE Issues 310
3.3.1.3 Formulary Apportionment 311
3.3.1.4 EU Law 312
Fundamental Freedoms 312
Common Consolidated Corporate Tax
Base 315
3.3.2 Characterisation: Focus on Dividends, Interest and
Royalties 316
3.3.2.1 Defining the Boundaries 317
Dividends 317
Interest 319
Royalties 321
Generally 321
Distinguishing from Other Payments 322
3.3.2.2 Thin Capitalisation 325
Domestic Rules 326
OECD Model 329
EU Law 332
3.3.3 Dual Characterisation: Reconciliation Rules 332
OECD Model 332
EU Law 335

4 Residence Country Taxation 340

4.1 Foreign Tax Relief 341
4.1.1 Methods 341
x contents
4.1.1.1 Domestic Law: Unilateral Relief 341
Deduction 342
Exemption 343
Credit 346
4.1.1.2 OECD Model 353
Exemption 355
Credit 358
4.1.1.3 EU Law 360
4.1.2 Problems with Corporations 363
4.1.2.1 Economic Double Taxation 364
Domestic Law: Unilateral Relief 364
Portfolio Investors 365
Direct Investors 366
OECD Model 372
EU Law 373
Parent-Subsidiary Directive 373
Fundamental Freedoms 374
4.1.2.2 Controlled Foreign Corporations 380
Domestic Law 382
Defining a CFC 383
Exemptions and Thresholds 384
Defining CFC Income 386
Computing Income 387
Attributing Income 388
Relieving Double Taxation 389
PEs 391
OECD Model 392
EU Law 398

4.2 Expenses/Losses 405

4.2.1 Allocation of Expenses between Foreign and Domestic
Income 406
Domestic Law 406
OECD Model 411
EU Law 415
4.2.2 Foreign Loss/Domestic Income 420
Generally 420
EU Law 422
4.2.3 Foreign Income/Domestic Loss 426
Generally 426
EU Law 430
4.2.4 Group Relief 435
Generally 435
EU Law 436
 c o n te n t s xi

5 The Limited Scope of Treaties 446

5.1 Mismatches between Source and Residence
Countries 448
5.1.1 Mismatches in the Fundamental Features of a
Payment 450
5.1.1.1 Allocation of Payment 450
Residence Country Sees Entity Source Country Does
Not 451
Source Country Sees Entity Residence Country Does
Not 452
PEs as Hybrid Entities 455
5.1.1.2 Quantification of Payment 455
Two Scenarios Involving In-Kind Cross-border
Payments 457
Economic Double Taxation and Corresponding
Adjustments 459
5.1.1.3 Timing of Payment 462
Mismatch of Depreciation Rates 462
Mismatch in Tax Year and Basis of
Accounting 464
5.1.1.4 Characterisation of Payment 465
Generally 465
Secondary Transfer Pricing
Adjustments 469
Indirect Mismatches 471
5.1.2 BEPS Response to Hybrid Mismatch
Arrangements 472

5.2 Beyond the Bilateral 474

5.2.1 Mismatch of Source: PEs and Third Countries 475
5.2.1.1 Payments Received by PEs 477
Generally 477
EU Law 482
5.2.1.2 Payments Made by PEs 483
Generally 483
EU Law 486
5.2.2 Mismatch of Residence 487
5.2.2.1 Taxation of the Person 488
Generally 488
Double Taxation 488
Duplicate Losses 489
EU Law 490
5.2.2.2 Payments Made by the Person: Dual
Source 493
xii c o n te n ts
Generally 493
Double Taxation 493
Duplicate Deductions 494
EU Law 494
5.2.3 Intermediaries: Re-sourcing and Other Re-
characterisation 495
5.2.3.1 Intermediary Country 496
PE 497
Subsidiary 498
Access to Treaty Network: Treaty
Shopping 498
Access to Lower Corporate Tax 500
5.2.3.2 Source Country Taxation 502
Treaty Shopping 502
Beneficial Owner 503
Limitation of Benefits and Treaty GAAR 508
EU Law 513
Tax Treaties: Most-Favoured Nation and Limitation
of Benefits 513
Shopping Primary EU Law 518
Offshore Indirect Transfers 521
5.2.3.3 Residence Country Taxation 522
Foreign Tax Relief 522
CFC Rules 525
EU Law 526

6 Changes of Source and Residence 531

6.1 Changes of Source Jurisdiction 533
6.1.1 Creation of Source 533
Transfer of Assets to PE 534
Transfer of Assets to Subsidiary 537
6.1.2 Termination of Source 538
Transfer of Assets from a PE 538
Transfer of Assets from a Subsidiary 540
6.1.3 Transfer of Ownership of Source 542
Transfer of a PE 542
Transfer of a Subsidiary 544
6.1.4 Variation of Form of Source 545
6.1.4.1 Conversions 546
PE into Subsidiary 546
Subsidiary into PE 550
6.1.4.2 Mergers 552
Assets Mergers 553
Corporate Mergers 556
 contents xiii
6.1.4.3 Divisions 559
Assets Divisions 559
Corporate Divisions 561

6.2 Changes of Residence Jurisdiction 562

6.2.1 Commencing Residence 562
6.2.2 Cessation of Residence 564

7 Bilateral Administrative Issues 567

7.1 Exchange of Information 568
7.1.1 OECD Model 570
7.1.2 1988 Multilateral Convention 573
Automatic Exchange of Financial Account
Information 573
Country-by-Country Reporting 574
Tax Inspectors without Borders 574
7.1.3 EU Law 574

7.2 Dispute Resolution 576

7.2.1 OECD Mutual Agreement Procedure 576
7.2.2 EU Law 582

7.3 Assistance in Collection of Tax 584

7.3.1 OECD Model 585
7.3.2 Assistance in Collection Agreements 586
7.3.3 EU Law 586

Conclusion 587

References 590
 PREFACE

It has been a decade since the first edition of this book, and it is with great
regret that I have had to revise it without the watchful eye of my long-
term colleague David Oliver. The course upon which this book is based
continues to be taught at the Law Faculty of the University of Cambridge
in essentially the same manner as it has since 2001. The publication of the
first edition brought with it an increase in popularity of that course which
has been maintained to the present day. More than ever, international tax
has been making headline news, and its controversial nature shows no
sign of abating.
The book is still designed for postgraduate students and junior practi-
tioners. It is more than an introduction to the subject. It challenges the
reader to think about tax issues conceptually and holistically, while
illustrating the structure with practical examples. More-senior tax practi-
tioners and academics may also find it useful as a means of refreshing
their understanding of the basics, and the conceptual framework may
challenge them to think more deeply about tax issues than they currently
do. Given the ever-increasing importance of having a global perspective
and recent constitutional turmoil, this edition has been substantially
revised to reduce its former focus on the UK. Copious amounts of new
material have been introduced (well over 60 per cent), which brings with
it a more-balanced global view of developments.
While there has been an attempt to contain the size of this book to a
manageable level, the burgeoning nature of the topic makes that a
struggle. No doubt containment makes the reading a little dense at
points. Where that happens, the reader should consider it an invitation
for pause and collection of thoughts.
The law in this book is stated as at the end of 2019.

xv
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