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Publications of Gidirim Vladimir
Taxes and Taxation, 2016-2
Gidirim V. - Interpretation of International Tax Treaties in International Practice


Abstract: The article is devoted to the theory and practice of interpretation of international tax treaties on the example of the OECD Model Convention. The basic principles of interpretation of the Vienna Convention on the Law of Treaties, as well as their application in the jurisprudence of the various states are viewed. The author also investigates the applicability of the interpretative documents and supporting materials as suitable sources of the interpretation of tax treaties. A significant part of the article is devoted to the tax authorities and the provisions of the judgments of foreign countries, which represented a particular interpretation of the terms of tax treaties, as well as links to this interpretation, driven by the courts. The study begins with a review of the generally accepted principles of interpretation predusmtrennyh Vienna Convention on the Law of Treaties 1969. These principles are considered in relation to the basic rule determining the values of the terms of tax treaties concluded in Article 3 (2) of the OECD Model Convention and the bilateral tax treaties. In this context the author investigates the applicability of the Commentary to the Model Tax Convention as an acceptable source of interpretation. The theoretical conclusions are further reflected in court decisions, which are justified by reference to the sources of interpretation. Generalizing these principles and techniques of interpretation, the author cites many examples of court decisions in different countries in which these principles and methods have been reflected. The result of the study is the lack of consistency and inconsistency of the application of the above principles in the jurisprudence of different countries. The consequence of this is ineradicable conflicts qualification terms of tax agreements, which prevent the uniform application of the taxpayers, tax authorities and courts of different countries.
International Law, 2014-4
Gidirim V. - Taxation of controlled foreign companies: the international practice. pp. 42-140


Abstract: Multinational companies resident in the states with high taxes, wishing to lower the tax burden in the group of companies as a whole, become involved in the complex international tax planning. They have two goals: on one hand to lower the source taxes at the investment states, and on the other hand to lower the income tax in state of their residency. The latter is a complex of activities for the diversion of income from the states, where the profit is earned to the third party states (also called intermediary states), where the profits are accumulated and then distributed in the state, where the investor is situated. The third party states may be offshore jurisdctions and states with favourable holding regimes. The state of residency of an investor does not wish to accept this situation as it is, and it is interested in legislative limitations to such practices.  The state of residency of the investor (e.g. a multinational company or a wealthy individual) is interested in counteractions against the attempts of such a resident to gain maximum delay in taxation of incomes earned. Such a delay is possible by so-called "parking" of passive incomes in the foreign jurisdictions with low taxes without distribution of such incomes into the state of residency of a resident. The resident state may achieve it by various taxation mechanisms for the non-distributed incomes of foreign controlled companies (well0known as CFC (Controlled Foreign Company) rules). In this article the author studies the CFC rules, which exist and are applied for decades by now in the states with high taxes, first of all, in the OECD states. The studies include defining the spheres of application of such norms, means of identification of foreign companies, whose tax basis should be included into the taxable basis of the parent company, the procedure for calculation of the tax basis, popular exceptions, as well as the modern international practices of developed states in this sphere. Currently the Russian tax legislation provides virtually no anti-avoidance norms, preventing the above-mentioned practices for the transfer of the tax basis abroad. However,   after the Budget Address of the President of the Russian Federation in December of 2013, the Ministry of Finances of the Russian Federation has announced its intention to introduce the rules similar to CFC, that is, the norms on controlled foreign companies, into the Russian tax legislation. In this article for the first time in the Russian legal science the author provides comprehensive analysis of the CFC rules, which are popular abroad. In this sense the contents of the article may provide the interested readers with the necessary context, within which the Russian tax rules on CFC shall be developed and further applied. 
International Law, 2014-3
Gidirim V. - The concept of "beneficiary ownership" in the international taxation. pp. 32-192


Abstract: The concept of beneficiary ownership is among the most debatable concepts in the modern theory of international tax law. Initially the term beneficiary owner has appeared in the trust law of the Great Britain in order to distinguish between the person having basic economic profits from property or trust income and a formal owner of property. However, later this concept was transferred into the international tax law, and it became a popular norm against unlawful use of treaties against double taxation (treaty shopping). The third type of concept of beneficiary owner belongs to the spheres of administrative and financial law, and it is connected to the issues of disclosure of a final beneficiary in a corporate structure.  The issue of recognizing a person as a beneficiary owner is a subject to both scientific discussions and serious disputes in the legal practice of the latest decades, including administrative and judicial practice in the states with developed economies. The absence of clear criteria for defining this term and presence of insoluble contradictions in its interpretation make the position of taxpayers involved in international economic activities even more difficult. These contradictions may not be regarded as being resolved at the moment when this article is written even after the additional interpretations by the OECD Tax Committee in 2012. The practical issue of beneficiary ownership of income is especially topical in the corporate structures of multinational corporations when using intermediary companies, having functions of holdings or subholdings, as well as functions of ownership and use of intellectual property, sub-licensing and transit (back-to-back) finaning within the group. The problem of beneficiary ownership also became especialy topical in the Russian Federation lately in the context of state initiatives on de-offshoring and attempts to limit abuse of international tax treaties. This article concerns theoretical aspects of the concept of beneficiary ownership of income for the purpose of application of tax convention. Special attention is paid to the value of this term in the national law of the states as an instrument of fighting against the tax agreements, interpretation of the beneficiary ownership for the purpose of international treaties and its application in the international judicial practice. Currently interpretation and application of the concept of beneficiary ownership in the international taxation is vague and contradictory. These contradictions may not be regarded as being resolved at the moment when this article is written even after the additional interpretations by the OECD Tax Committee in 2012. The author for the first time in the Russian tax literature attempts to generalize the existing views on the issues of application of this concept in the international taxation. 
Taxes and Taxation, 2013-3
Gidirim V. -


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