Taxes and Taxation - rubric International Tax Law

Abstract: The subject of the research is the law enforcement practice of the European Court of Human Rights regarding the legal liability of organisation and physical entities. Focusing on the problem, the author analyzes the practice of the European Court of Human Rights in viewing tax disputes and assesses the possibility of applying revealed regularities by Russian enforcers. The author of the article pays special attention to the relation between corpus delicti of administrative offences in the sphere of taxes and levies and tax offences from the point of view of the provisions in Article 6 of the European Convention on Human Rights. The methodological basis of the research is the dialectical method to study the social reality. To collect, process, summarize, analyze and interpret data the author has applied general and special research methods such as induction, deduction, comparative statistical analysis, and analysis of documents. Based on the results of the research the author concludes that there are certain gaps in the Russian laws on tax and levy liability as a result of the formal approach to developing law branches and institutions. The author of the article suggests that we should use the law enforcement practice of the European Court of Human Rights to make changes in the Russian legislation.

Keywords: essence of an offence, tax sanctions, administrative liability, tax liability, administrative law, tax law, European Court of Human Rights, fair trial, administrative offence, tax offence

DOI: 10.7256/2454-065X.2018.9.26617

Abstract: The subject of this research is the BEPS project of OECD aimed at prevention of taxpayer actions aimed at base erosion and profit shifting. The author of the article examines the factors that today enable the evasion of tax payment, describes the development of the rules that would prevent such evasion, analyzes the reasons of why the BEPS project was created and studies the nature of the BEPS project. Special emphasis is made on positive and negative consequences of the project. The methodological basis of the research includes such formal logical method as analysis and synthesis. In addition, the author has used the historical research method and systems approach. The main conclusion of the research is that despite the importance and potential to reduce the base erosion and profit shifting, the BEPS project of OECD creates a great number of serious issues. Solutions still need to be found, and if these problems are ignored, this project may make a significant harm to both taxpayers and individual states.

Keywords: Double taxation, Tax planning, Tax evasion, Profit shifting, Base erosion, BEPS action plan, International tax law, BEPS Project, OECD, G20

DOI: 10.7256/2454-065X.2018.11.27977

Abstract: The authors of the article focus on some prospects of the international coordination of approaches of BRICS countries to cross-border taxation and other cross-border economic relations. In particular, the author analyzes the issues that arise during the development of the BRICS Multilateral Double Taxation Avoidance Convention in relation to particular revenues of small- and medium-sized businesses (based on using the method of release of certain extraterritorial revenues of taxation) and BRICS Multilateral Convention that regulate cross-border tax disputes (on the basis of implementation of mediation elements and tax arbitrage for particular categories of tax cases). In addition, the authors of the article evaluate prospects for the convergence of financial and taxation systems of BRICS countries and establishment of general and special measures of tax abuse prevention, taxation rules of controlled foreign companies, procedures to prove fiscal residence and rules for the implementation of tax treaties during taxation of sources of income and particular rules of taxation of permanent establishments.

Keywords: cross-border tax disputes, tax mediation, tax abuse, avoidance of double taxation, tax exemption, controlled foreign companies, permanent establishment, BRICS multilateral conventions, cross-border taxation, international tax law

DOI: 10.7256/2454-065X.2016.1.16049

Abstract: The present article is devoted to the taxation matters arising in the process of cross-border bankruptcy as well as ways to harmonize legislation systems of the BRICS member-states for this purpose. In his research Izvekov defines the main problems related to the priority of fiscal requirements in the bankruptcy legislation of the BRICS countries, analyzes whether a state may participate in the case of bankruptcy while in the territory of another contracting state and offers relevant solutions. The researcher outlines the theoretical grounds for the influence of fiscal requirements of the state at the extraterritorial level. The research is based on the comparative analysis of international practices of trans-border bankruptcies, national bankruptcy legislation and issues of insolvency of the BRICS countries. The author also describes conceptual contradictions in the priority of creditors' claims in some BRICS countries. Izvekov demonstrates how the main results of the research can be applied to the BRICS commonwealth and suggest that government authorities should be able to participate in the proceedings initiated in the territory of other BRICS countries. It is assumed that the present research article can be of interest not only for those who are interested in trans-border bankruptcy but also for those who are concerned about general issues of comparative legal studies and international jurisdiction.

Keywords: transboundary insolvency, cross-border insolvency, lex fori concursus, tax issues, competition of international claims, conflict of international claims, equality of rights, sanation, peaceful agreement, reciprocity principle

DOI: 10.7256/2454-065X.2016.1.67360

Keywords: equality of rights, sanation (reorganization), cross-border insolvency, cross-border bankruptcy, lex fori concursus, tax issues, tax matters, settlement, competition of international claims, conflict of international claims, reciprocity principle

DOI: 10.7256/2454-065X.2019.3.28133

Abstract: In his article Asabin describes the key parameters of interstate agreements of the Federal Republic of Germany that contain provisions that define the system of international tax rules. The key role of such treaties is determined by their fundamental importance for the development of international economic relatins the Federal Republic of Germany is the party of, it is also determined by the priority of such treaties over the provisions of the republic's national law. Combination of tax legal relations that arise as a result of such treaties is the subject of this article. The research methodology includes formal law method that is used to analyze efficient international treaties as well as comparative law method that is used to define similarities and differences in the tax provisions of international treaties of the Federal Republic of Germany. The parameters defined by the author can be used to develop several classifications of efficient treaties for better objective determination of their peculiarities and comparative analysis of their particular provisions. The researcher has also defined particular groups of treaties that contain tax provisions as well as peculiarities, differences and similarities of interstate agreements the Federal Republic of Germany is the party of.

Keywords: OECD Model tax convention, International tax planning, Agreements' classification, Fiscal agreements, Economical relations, BRD, International tax rules, Germany, Tax treaties, International agreements

DOI: 10.7256/2454-065X.2020.4.33280

Abstract: This article analyzes the possibility of application of the data information-pricing agencies within the framework of implementation of the method of comparable market prices. The author also examines the questions of making adjustment in case if the data of information-pricing agencies are not fully comparable. The object of this research is the court decisions on the questions of transfer pricing, in the context of which was conducted the analysis of application of the data of information-pricing agencies for the purpose of employment of the method of comparable profitability. Special attention is paid to the methodology of adjustments of comparable data within the framework of court decisions, as well as possibility for potential utilization of these methodologies in tax planning. The main conclusion is defined by the possibility of application of the data of information-pricing agencies for the purposes of transfer pricing in a wide range of cases, as well as recognition of the All-Union State Standard by generally accepted standards in various industries. It is determined that methodology used by fiscal authorities for calculating the market prices interval for the purposes of transfer pricing significantly differs depending on the methodology established by quotes. According to the opinion of fiscal authorities and courts, most important aspect within the framework of analyzed decisions, is the usage of data averaging by information-pricing agency, which substantially affects further calculation technique for price intervals.

Keywords: international taxation, tax planning, related party transactions, controlled transactions, arm’s length principle, transfer pricing, MNE taxation, CUP method, tax avoidance, transfer pricing methods

DOI: 10.7256/2454-065X.2018.8.21173

Abstract: Combination of debt and capital can be used as an instrument of tax planning. Hybrid mismatch arrangement is a tax planning technique which exploits the difference in qulifying of company or instrument for tax purposes in legislation of two or more jurisdictions. The aim of this scheme is to obtain tax advantage which will lead to diminishing of overall tax burden of group of companies. It is impossible to find out such tax planning technique and evaluate the existence of unbased tax advantage when analysing tax base of company only in one jurisdiction. Russian companies can be involved in such tax arbitrage technique because Russian jurisdiction is an object of international tax planning. There are no evidence of existence of such schemes because both court practice and Tax Code provisions aimes at countering such tax avoidance techniques are absent in Russia nowadays. In this article authors research possibilities and aims of using hybrid financial instruments in international tax planning, analyse relevant Russian tax law provosions. Also international expierence on setting anti-hybrid rules is reviewed. The methodological basis for the research are documents of OECD, European Commission, court cases, monographs and articles of Russian and foreign academics. The authors use common methods of research such as analysis, synthesis, deductuve approach, generalisation, and case analysis. As a result of this research they have detected a possibility of using certain techniques in international tax planning which facilitates tax avoidance. Risks of diminishing of corporate tax base in Russian Federation are increasing because of absence of anti-hybrid rules in Russian tax legislation. New ideas developed in this research include author’s suggestions on countering the possibilities of using hybrid mismatch arrangements in the tax jurisdiction of Russian Federation, in particular, we propose introduction of anti-hybrid legislation based on OECD Action 2 Deliverables. It will be in line with international best practice.

Keywords: double non-taxation, hybrid mismatches, tax planning, hybrid financial instrument, profit shifting, base erosion, tax policy, OECD, double deduction, non inclusion

DOI: 10.7256/2454-065X.2020.4.33289

Abstract: The subject of this research is the established in arbitration courts of the Russian Federation practice of implementation of provision of Multilateral Convention on Mutual Administrative Assistance in Tax Matters and provisions of the agreements on the avoidance of dual taxation, related to cooperation of fiscal authorities in the form of exchanging tax information. In particular, the author examines the questions of the period of validity of the provisions of international acts; forms information transfer; compliance with the requirements on legalization and apostiling of transferred documents; rights of taxpayers to appeal against the request on them to foreign jurisdiction; correlation between the provisions of international acts on the exchange of tax information and provisions of legislation on personal data protection. A conclusion is formulated that since the exchange of tax information is primarily regulated by the international acts, there is no need in adoption of normative act on the national level that would contain additional regulation, except a separate act for regulating the system of supplementary guarantees of private entities, involved into the exchange of tax information. Summarization of the formulated by courts legal positions on the level of the Supreme Court of the Russian Federation is relevant.

Keywords: tax treaties, transparency, anti-evasion rules, tax control, tax information, tax information exchange, EU, OECD, tax administration cooperation, judicial interpretation

DOI: 10.7256/2454-065X.2017.4.22696

Abstract: The subject of the research is the classification of taxable income based on active economic activity income and passive economic activity income. The author discusses legislative and doctrinal approaches to the subject of the research and covers the cross-border aspect of the taxation of active and passive income. The author of the article pays special attention to criterion of the differentiation of taxable income into active and passive activity income as it is proposed by the Russian legislator, model tax conventions and scientific literature. Kurochkin provides a critical assessment and highlights the advantages and disadvantages of each identified criterion. The author has used formal-logical and comparative legal research methods, historical, literal and systematic interpretation of tax legislation standards and international acts. Based on the research results the author comes to the conclusion about imperfection of the Russian legislative model of division of taxable income into active and passive, which, moreover, is not applicable to all tax relations. The lack of standardized rules and clear criteria for differentiating income into active and passive creates preconditions for double taxation of some income that can be classified as both active and passive. The novelty of the research is caused by the fact that taking into account the identified scientific and practical approaches to the taxation of active and passive income (in the absence of a serious and fundamental researches of this question) the author suggests the most appropriate fo the Russian legislation criteria for differentiating taxable incomes that meet recognized international standards and eliminate the risk of double taxation: the nature of legal facts involving obtaining passive or active activity income by a taxpayer.

Keywords: international tax treaties, double taxation, cross-border taxation, criterion for differentiating income, passive income, active income, taxable income, tax legislation, taxpayer, tax

DOI: 10.7256/2454-065X.2021.5.36597

Abstract: This article is dedicated to identification and analysis of the gaps in legal regulation of profit taxation of controlled foreign companies (CFC) in the Russian Federation, by comparing the Russian legislation with the legislation of the European Union member-states. Comparison is conducted on the current legislation of the Russian Federation on CFC with analogous rules in France, Germany, Netherlands, and Great Britain. The author determines the similarities and differences in the regimes of profit taxation of controlled foreign companies, and substantiates the need for introducing point amendments to the current legislation of the Russian Federation on profit taxation of controlled foreign companies. The structure of the Russian rules on CFC is largely similar to such in the developed European countries. The definition of the concept of control in the Russian legislation for the most part aligns with the definitions of the analogous concept in the legislation of France, Germany, and Netherlands; although the Russian definition is certainly broader, as it applicable to foreign structures without formation of legal entity, and contains both quantitative and qualitative criteria. Despite formal similarity of the Russian rules on CFC and their foreign equivalents, there are gaps in the Russian legislation, the interpretation of which by the tax authorities and the Ministry of Finance is at times contradictory and often does not benefit the taxpayer. Numerous questions arise from filling out and submitting participation notices and CFC notices, the procedure for which also contains multiple gaps, and the grounds for their submission in the legislation are quite ambiguous. Taxpayers often do not timely notify the tax authority on the participation in CFC or do not submit the corresponding notice due to inaccessibility of software for filling out notices for companies established in particular organizational-legal form.

Keywords: ATAD directive, exemptions from taxation, CFC income, participation share, control, Controlling person, OECD, passive income, de-offshorisation, European Union

DOI: 10.7256/2454-065X.2017.10.24463

Abstract: This article is devoted to the multilateral tax instrument within the BEPS plan and how the entire concept and particular provisions of it are perceived by participating jurisdictions. To achieve the aforesaid goal, the authors of the article analyze provisions of the multilateral tax instrument within the BEPS plan and official sources of foreign competent authorities explaining positions of these countries regarding the multilateral tax instrument within the BEPS plan. The results of the first part of the research demonstrate that the multilateral tax instrument within the BEPS plan is still far from achieving the goals of international 'tax cooperation' and some key countries prefer not to implement certain provisions of the multilateral tax instrument within the BEPS plan in their double tax treaties based on particularities of their own tax policies. The second part of the research is focused on analyzing the role and position of the Russian Federation regarding the multilateral tax instrument within the BEPS plan. Based on the analysis of Russia's laws, other legal sources and the experience of the foreign states analyzed in the first part of the research, the authors underline provisions of the multilateral tax instrument within the BEPS plan that Russia is not ready to implement in double tax treaties yet. In the third part of the research the authors analyze a new double tax treaty between the Russian Federation and Japan that fully comply with Action 15 of the BEPS plan and multilateral instrument within the BEPS plan, however, they underline that it also has the problems described in the second part of the research. In the third part of their research the authors focus on the features of the mutual agreement procedure within the framework of the aforesaid double tax treaty. Based on their analysis, the authors have discovered a pressing need to reform the mutual agreement procedure and offer their recommendations on how to do it.

Keywords: corresponding adjustments, Russian Federation, tax treaty abuse, permanent establishment, double tax treaties, OECD model tax convention, mutual agreement procedure, multilateral tax instrument within the BEPS plan, BEPS plan, tax system

DOI: 10.7256/2454-065X.2023.1.38418

Abstract: The object of the study is transnational corporations. That is, companies that operate and have legal entities in various jurisdictions, which allows them to transfer the corporate tax base – profit to jurisdictions with minimal corporate tax. The transfer is carried out through the use of intra-group transfer prices. The subject of the study is current trends, ideas and international efforts in the taxation of multinational corporations. Both such trends themselves were investigated, and a computational experiment was conducted to assess the applicability of a possible methodology for calculating the profit tax of a subsidiary of such a corporation in Russia and the possible consequences for the budget from its application. The main conclusions of the study are as follows: at present, an international consensus is gradually being formed that the total profit of a transnational corporation should be distributed in a reasonable and fair way among the countries of its activities, an understanding of the need to consolidate such an order at the international level is being formed; however, no single understanding of approaches to taxation of transnational corporations, nor a single methodology capable of implementing them in practice. The scientific novelty is the author's reduction of the principle of tax neutrality from the classical principle of tax neutrality. In addition, the contribution of the authors is to demonstrate the fundamental efficiency of one of these methods by the example of calculating indicators based on open reporting data of a particular organization, as well as the consequences of using such a methodology for the budget.

Keywords: transfer price, tax optimization, tax haven, offshore zone, tax rate, income tax, corporate tax, taxes, taxation, multinational corporations

DOI: 10.7256/2454-065X.2018.5.26996

Abstract: The subject of the research is the peculiarities of defining controlled transactions for the purposes of tax control over transfer pricing. The author of the article examines consequences of amendments made to the tax law, in particular, reduction of the list of controlled transactions, and analyses approaches to defining a controlled transaction in foreign tax law. The author also carries out an analysis of explanations of the Ministry of Finances of the Russian Federation and Tax Federal Service of Russia, Russian and foreign judicial practice on the matter, Russian and foreign researches, which makes the research important for practising lawyers. The methodological basis of the research is the general research methods such as analysis, synthesis, generalisation, the author has also used special research methosd such as formal law, comparative law and historical analysis. The scientific novelty of the research is caused by the fact that the author analyzes different criteria of the scope of application of tax control over transfer pricing and gives recommendations both for legislators and taxpayers who deal with the reduced list of controlled transactions. The main conclusions of the research are as follows: 1) when defining a range of controlled transactions, legislator applies a risk-oriented approach which allows to reduce the administrative burden on taxpayers; 2) based on the judicial practice and explanations of the Federal Tax Service of Russia, the aforesaid changes may have negative consequences, thus the author recommends what amendments should be made to the Tax Code of the Russian Federation; 3) taxpayers whose transactions will not be recognized as controlled should prepare additional rationale for an actual price of a transaction in order to reduce the risk; 4) in order to improve tax control taking into account experience of the foreign states, the author suggests to use the company's turnover volume as a criterion for recognising transactions as controlled, as well as to make up a certain criterion for preparation of documentation.

Keywords: Unjustified tax benefit, Controlled transactions, Arm's length principle, Transfer pricing, Tax audits, Tax control, International taxation, Court practice, Tax code amendments, Tax liability

DOI: 10.7256/2454-065X.2017.3.22403

Abstract: The subject of the present research is the legal bsis of interaction between states in the sphere of informatin exchange on tax issues. The purpose of the present research is to analyze legal forms of such interaction and prospects for its development as well as the influence on Russian tax and levy legislation. As a result of the research, the author provides a complex analysis of the legal basis of information exchange in the tax sphere as it was developed by OECD. The author also analyzes and demonstrates the basic forms and kinds of such interaction and describes the current state of agreement between states, opportunities and prospects of Russia's participation therein. The results can be used in academic and research activity related to studying international cooperation on tax, administrative and information issues as well as Russia's participation therein. To analyze legal grounds of state-to-state interaction in the sphere of information exchange on tax issues, Russian tax and levy laws, the author has used the following research methods: formalistic, historical law and comparative law methods. The novelty of the research is caused by the object of the research, i.e. provisions of recently adopted international law documents on the issues of information exchange between states in the sphere of taxes and their implementation by Russian law. The reserach has allowed to make the following conclusions: to develop the legal cooperation in the tax sphere including information exchange, it is necesary to focus not only on the formal but also political aspect. One of the essential conditions for ensuring rules of taxation of international economic activity and increasing efficiency of international cooperation is the organisation between information exchange and cooperation on administrative issues; and the fact that Russia does not have the status of an OECD member should not prevent itfrom improving its legislatin based on OECD guidelines as well as to impolement OECD standards and rules in Russian practice.

Keywords: taxation, exchange of tax information, taxes, international tax cooperation, tax law, international tax law, OECD, Model tax convention, legislation fiscal, tax code

DOI: 10.7256/2454-065X.2018.3.25771

Abstract: The subject of the research is the tools used in the field of taxation to enable de-offshorization of Russia's economy. The purpose of the research is to analyze the legal basis for using such tools and the influence of international factors on the development of Russia's tax law. In his research Shakhmametiev analyzes the legal basis for integrated use of de-offshorization tools, describes particular tools, studies forms of international cooperation against unfair tax competition and influence of international cooperation on the development of Russia's tax laws, and describes features of the currently used tools and prospects for improving them. In the course of analysing the legal de-offshorization instruments that are currently used in Russia, the author of the article has applied the following research methods: formal law, historical law and comparative law methods. The novelty of the research is conditioned by the object of the research, i.e. provisions of the most recent Russian tax laws and international laws on prevention of unfair tax competition. The results of the research allow to make the following conclusions: an individual state may undertake certain measures to de-offshorize its economy, however, these measures boost in productivity if they are jointly undertaken by the leading countries; Russia is taking an active part in international cooperation against unfair tax competition and applies all standards and regulations recommended by OECD. New Russian laws already prove to be beneficial, however, they also demonstrate the need to improve tools of de-offshorization of Russian economy. The results of the research can be used in teaching and research activity devoted to analyzing the legal instruments that would minimize the influence of offshores on economic processes, international cooperation on tax issues and Russia's participation therein.

Keywords: taxation of revenues, erosion of the tax base, de-fursorization, tax competition, a controlled foreign company, international tax cooperation, tax code, taxes, tax law, OECD

DOI: 10.7256/2454-065X.2021.1.34702

Abstract: The subject of this article is the analysis of aggregated tax indicators of the activity of controlled foreign corporations: the amount of tax payable; the number of controlled foreign corporations; the number of taxpayers who control them. The author analyzes tax indicators of the activity of controlled foreign corporations owned by tax residents of the Russian Federation on corporate income tax and personal income tax; as well as examines potential proceeds from tax imposed on personal fixed income, which will be applicable for 2020. Research methodology is based on the key provisions of international taxation; tax analysis is conducted according to the open data from the reports of the Federal Tax Service for the period from 2015 to 2019 in the federal and regional context with application of analytical, comparative and statistical methods. The scientific novelty consists in interpretation of results acquired from the analysis of tax indicators of the activity of controlled foreign corporations, which allowed spotting trends in their dynamics for determination of feasible variants of tax regulation of such companies. The conclusion is made that the number of taxpayers who control such corporations has grown, but the taxes assessed on the profit of CFC has decreased. The spotted trends in the dynamics of tax indicators of the activity of CFC owned by tax residents of the Russian Federation demonstrate the promising trend of their tax regulation is not as a punitive fiscal function, but rather stimulating, which implies introduction into the Russian tax field of more corporations owned by tax residents of the Russian Federation that are located in the offshore and transit jurisdictions.

Keywords: tax resident, transit jurisdictions, tax, tax on fixed income, personal income tax, corporate income tax, CFC, tax analysis, controlled foreign company, offshore

DOI: 10.7256/2454-065X.2023.2.38324

Abstract: The subject of the work is a comparative analysis of the OECD approach and the EU approach to the resolution of international tax disputes. The research is conducted on the basis of the provisions of the OECD Model Tax Convention, the OECD Multilateral Tax Convention, the EU Arbitration Convention and the EU Directive. The purpose of the work is to find the most effective mechanism for resolving international tax disputes in terms of ensuring the protection of taxpayers' rights in the dispute resolution procedure. The methodological basis of the work was made up of general scientific (analysis, classification, synthesis, deduction, induction, analogy), private scientific (system method) and special legal (formal legal and comparative legal) methods of scientific research. The scientific novelty of the work suggests the proposal and justification as a way to increase the effectiveness of the resolution of international tax disputes, the use of mediation in a mutually agreeable procedure with the provision of the taxpayer with the possibility of direct participation in the dispute resolution procedure. Based on the results of the study, the author came to the following conclusions. The practice of applying the mutual agreement procedure and arbitration shows that this dispute resolution mechanism has a number of significant drawbacks. In order to improve the efficiency of dispute resolution, the OECD and the EU are striving to develop mandatory arbitration and do not consider non-binding mechanisms, since they do not guarantee an agreement on the dispute. However, mandatory arbitration cannot be considered a universal instrument, since States see it as a threat to sovereignty. The experience of States that actively use mediation to resolve domestic tax disputes shows that mediation can also become an effective mechanism for resolving disputes at the international level, since it allows the parties to consider various aspects of the dispute from different sides. According to the author's position, the shortcomings of mediation outlined in the doctrine can be mitigated by granting the affected taxpayer the right to participate directly in mediation, presenting his position on the case.

Keywords: international tax disputes, European Union approach, OECD approach, protection of taxpayers' rights, mediation, non-binding mechanisms, alternative commission, advisory commission, arbitration, mutual agreement procedure

DOI: 10.7256/2454-065X.2016.2.15355

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.

DOI: 10.7256/2454-065X.2016.2.67460

Keywords: teleological interpretation, comments, context, purpose of the treaty, fair comment or interpretation, OECD, Model Convention, international tax treaty, interpretation, Vienna Convention

DOI: 10.7256/2454-065X.2016.2.17766

Abstract: The subject of the present research is the practically important problem of defining the scope of the international tax concept of the 'beneficial owner of income'. This problem is being viewed from the following two points at issue: 1) whether the concept of 'beneficial owner of income' covers only passive incomes (dividends, interests and royalties) or 'other incomes' unspecified by articles of tax traties or it is of general nature and therefore covers all incomes falling within tax treaties; 2) whether this concept applies to passive incomes only when articles of treaties explicitly provide for such a restrictive condition or also in cases when they do not clearly state that a foreign receiver of income has to be recognized as 'beneficial owner of income'. Solution of these issues has a high doctrinal and practical importance including that for the purposes of the proper application of Russia's tax treaties. For the present time effective versions of Clause 3 of Article 7 of the Tax Code of the Russian Federation and Clause 2 of Article 7 of the Tax Code of the Russian Federation that regulate the concept of 'beneficial owner of income' have obvious contradictions: Clause 3 of Article 7 of the Tax Code of the Russian Federation provides for a restricted approach and Clause 2 of Article 7 of the Tax Code of the Russian Federation offers a broadside approach to defining the scope of the concept of 'beneficial owner of income'. The need to eliminate the aforesaid contradiction, on top of everything else, prove that this is an important topic to be studied. The author fo the article conducts an in-depth research of different opinions of foreign and Russian scientists on the matter. In the course of the research the author has used general research methods such as generalization, induction, deduction, systems and logical analysis, as well as specific methods of legal research such as technical legal method, comparative law method and method of interpreting legal provisions. As a result of the research, the author has developed the following provisions that have the scientific novelty: 1) In order to apply provisions of the Russian Federation tax treaties, a foreign company receiving passive income must have the status of 'beneficial owner of income' whatever Articles 10, 11 and 12 of the tax treaties state. Based on the analysis of the approaches of foreign and Russian researchers as well as legal precedents it would be reasonable to regard the concept of 'beneficial owner of income' to be 'implicit' in all treaties as provisions of these treaties must be interpreted according to the subject matter and objectives of tax treaties including prevention of 'treaty shopping'. With that in mind, provisions of Clause 1 of Article 11 'Interests' and clause 1 of Article 12 'Royalties' of the treaties between the Russian Federation, Cyprus and Luxemburg should be interpreted as implying the concept of 'beneficial owner of income' even though they do not explicitly state a restrictive condition of 'beneficial owner of income'. 2) However, the concept of 'beneficial owner of income' should not be applied to other incomes unless treaties explicitly state it as, for example, Article 21 of the Tax Convention between the Russian Federation and Great Britain provides for.

DOI: 10.7256/2454-065X.2016.2.67461

Keywords: beneficial owner of income, double tax avoidance conventions, anti-avoidance tax concept, passive incomes, another incomes, paid to resident, OECD Commentaries, general anti-avoidance rules, implied concept, treaty shopping

DOI: 10.7256/2454-065X.2015.4.13850

Abstract: The subject analyzed is the legal construction of tax obligations from the point of view of participation of a tax agent in them. In order to avoid double taxation, an agent may be obliged to confirm the fact of the fiscal residence of a foreign contractor. The author analyzes the approaches towards this issue in countries of the Eurasian Economic Union and the Eurasian Economic Community, revealing the advantages and disadvantages of the construction of tax obligations in diverse countries. At present, there do not exist any legislative regulations of exchange of information between tax agencies of separate states, thus, disputes may emerge in transfrontier situations concerning the volume of obligations of a tax agent. In the article, the author uses the method of comparative analysis, which helps to reveal general and specific features of the legislature approaches in countries of the Eurasian Economic Union and the Eurasian Economic Community to the issues of procedure specificity of attaining a certificate of a tax resident and the content of this document. The author uses a dialectical approach towards the problem of cooperation of the parties of legal tax relations between themselves. The author suggests the following solution of the problem of confirming the status of tax residency: initially, this obligation can be placed on either a foreign organization or directly on the tax agent. This issue, in the author’s opinion, can be solved in private capacity, i.e. by agreement of the parties. A certificate of a tax agent should have a regimented and proceduralized form of obtaining it. As an alternative to providing a certificate, the author suggests to provide extracts from foreign editions that publish information about tax residents of foreign states. In the future, the procedure of receiving a status of a tax resident should be abolished, taking into account the development of exchange of information between tax agencies of countries of the Eurasian Economic Union and the Eurasian Economic Community.

Keywords: double taxation, tax agent, foreign organization, Eurasian Economic Union, Eurasian Economic Communi, tax obligation, certificate of a tax resident, exchange of information, tax resident, responsibility of a tax agent, tax authorities

DOI: 10.7256/2454-065X.2015.4.66411

DOI: 10.7256/2454-065X.2015.5.15224

Abstract: The subject analyzed in this article is ways to solve the problem of double taxation between Russia and other countries. The author analyzes the list of the Russian Ministry of Finance adopted on January 19, 2015, which includes treaties between Russia and other states within 1986 and 2014, and the dynamics of their coming into effect. Using the examples of the Convention between the governments of Russia and Japan and the Convention between the governments of Russia and Malta, the author views the types of taxes regulated by these conventions, as well as the methods of avoiding double taxation themselves. The article is based on analyzing normative legal acts and comparing them in order to achieve generalized data. The main conclusion of the article is that measures for defending the interests of tax payers and the country itself in the sphere of avoiding double taxation should be complex and should come not only unilaterally from Russia, but be administered through bilateral and multilateral treaties between Russia and other states. This, work should be continued in order to conclude agreements of this kind between Russia and foreign countries.

Keywords: bilateral treaty, unilateral treaty, elimination of the double taxation, Income, non-resident, resident, international agreement, double taxation, convention, tax creadit

DOI: 10.7256/2454-065X.2015.5.66527

Keywords: bilateral treaty, unilateral treaty, elimination of the double taxation, Income, non-resident, resident, international agreement, double taxation, convention, tax creadit

DOI: 10.7256/2454-065X.2015.6.14088

Abstract: The object under research of this article is the public relations developing when the companies from particular member states change their residence and transfer assets from the head company to their economically independent subdivision in other member states. The subject under research of the present article is the legal regulation of taxation in the process of withdrawal of parties as a resulf of the transfer of assets from the head company to subdivisions located in other member states of the EU. The author examines such aspects of the topic as granting tax deferment, the term of tax deferment, specifying requirements of the government on provision of the bank guarantee and interest payment. Special attention is paid to the practice of the European Court of Justice that prejudicially viewed the issues of compatibility of the provisions of domestic tax legislation on taxation during withdrawal of parties in different member states. The methodological basis of the article involves general and special methods of scientific cognition. The researcher has also used the methods of legal, system, comparative law and linguistic analysis. Based on the results of the research, the author concludes that, firstly, immediate taxation of unrealized capital gain when transfering assets from the head company to a subdivision in another member state violates the EU rights. Secondly, the requirement to provide the bank guarantee does not automatically violate the EU rights; any condition introduced by the goverment must be proportional to achieving balanced distribution of authorities to collect taxes between states. Thirdly, when developing their own domestic legislation on taxation during withdrawal of parties the governments must find the balance between retaining their rights to perform their tax authorities and eliminating obstacles for efficient functioning of the domestic market and exercising the four economic freedoms guaranteed by the founding treaties of the EU.

Keywords: resident, transfer of assets, permanent establishment, economically autonomous subdivision, European Court of Justice, taxation during withdrawal of parties, European Union, redomiciliation, directive on cross-border merger, domestic market

DOI: 10.7256/2454-065X.2015.6.66625

DOI: 10.7256/2454-065X.2015.8.16014

Abstract: The subject of the research is the role and importance of the concept of "tax residency of legal entities' in the procedure of deoffshorization of the Russian economy. The relevance of this study is confirmed by one of the main problems of the Russian economies: the Russian business offshore. Many us, the Russian residents, directly or indirectly, is closely affiliated with offshore companies.Special attention is paid to the problem of delimitation of the concepts of "beneficial owner" and "actual recipient of income". The definition of the latter concept creates the basis for its use in anti-monopoly and anti-corruption laws.The authors also devote their attention to the issue of tax evasion through the use of low-tax (offshore) jurisdictions and the plan for combating erosion of the tax base and the profit tax.When writing the article the authors have used such methods as the research method, deductive method, inductive method and comparative method. The main conclusions of the research are the following: tax residence is one of the mechanisms for the implementation of the plan for the deoffshorization of the Russian economy; the concepts of "actual recipient of income" and "beneficial owner" are completely different and used for different purposes, the first concept being the subject of discussion even at the level of the OECD; the Convention on mutual administrative assistance in tax cases that is being prepared for ratification provides for the exchange of tax information, assistance in collection of taxes in the territories of the countries participating in the Convention and conducting simultaneous inspections with participating countries.

Keywords: offshore companies, deoffshorization, beneficial owner, recipient of income, tax residency of legal entities, nonresidents, resident, transfer pricing, grey zones, fiscal regulation

DOI: 10.7256/2454-065X.2015.8.66868

Keywords: offshore companies, deoffshorization, beneficial owner, recipient of income, tax residency of legal entities, nonresidents, resident, transfer pricing, grey zones, fiscal regulation

DOI: 10.7256/2454-065X.2015.10.15684

Abstract: The subject of the research is the problems of taxation of non-resident companies that conduct their business activity in the Russian Federation through their dependent agents. The object of the research is the agent representation of the permanent establishment. This is an additional rule to the main type of the permanent establishment. The purpose thereof is to detect the relationship between foreign companies, i.e. revenue sources through a dependent agent but not fixed location of activity, and the country and later define their taxable base in this country. The methodological basis for the reseach involves the following research methods: historical, logical and statistical analysis, induction and deduction, comparative analysis, synthesis, modeling and analogies. The scientific novelty of the article is caused by the fact that the authors have applied an integrated approach to the analysis of problems elated to the functioning of the agent rule of the permanent establishment in the Russian Federation, both from the point of view of taxpayers, tax administration and international principles of taxation. The main conclusion is that the effective version of the rule does not conform to the modern economic situation, moreover, there are many specific Russian problems such as uncertain interpetation of this rule by Russian courts, double tax treaty applied to goods imported through an agent, undeveloped procedures for recording, regulation and determination of the tax base for the agent representation of the permanent establishment.

Keywords: profit shifting, double tax treaty, commissionaire, dependent agent, OECD Model convention, base erosion, permanent establishment, corporate income tax, deoffshorization, Tax policy

DOI: 10.7256/2454-065X.2015.10.67033

Keywords: deoffshorization, corporate income tax, permanent establishment, base erosion, OECD Model convention, dependent agent, commissionaire, double tax treaty, profit shifting, tax policy

DOI: 10.7256/2454-065X.2016.11.20832

Abstract: The present article is devoted to the problems of interpreting the international 'against-tax-avoidance' concept of the beneficial owner of income aimed at counteracting illegal implementation of double taxation treaties. In her research Balakina analyzes the definition of the beneficial owner of income fixed in Clause 2 of Article 7 of the Tax Code of the Russian Federation through such definition criterion as a personal right to use and dispose income. Having analyzed approaches described in OECD Commentaries, foreign legal precedents, points of view of foreign and Russian scientists on internatioinal taxation, and written explanations of the Ministry of Finance of Russia, the author comes to the conclusion that the definition criterion of the beneficial owner iof income fixed in Article 7 of the Tax Code of the Russian Federation does not bear any significant meaning and does not clarify the aforesaid concept. On the contrary, it creates pluralism of opinions regarding what the right to use and dispoise income actually means. The methodological basis of the research consists of general and specific scientific methods and techniques such as dialectical, formal logical, comparative, stryctured system approaches, methods of analysis, synthesis and others. Application of the aforesaid methods allows to combine theoretical analysis with solution of practical tasks that are significant for interpreting and implementing the concept of the beneficial owner of income. The main contribution of the author is that she offers her own definition of the beneficial owner of income instead of the definition fixed in Clause 2 of Article 7 of the Tax Code of the Russian Federation and suggests to inclue this definition in Article 3 of the Typical OECD Treaty No. 84 'On Concluding International Treaties on Avoiding Double Taxation and Prevention of Fiscal Evasion' approved by the decree of the Government of the Russian Federation on February 24, 2010.

Keywords: concept definition criterion, obligation to pass income, treaty shopping, economic approach, technical legal approach, right to dispose income, right to use income, Update OECD Commentaries, International Tax treaties, beneficial owner of income

DOI: 10.7256/2454-065X.2016.11.68357

DOI: 10.7256/2454-065X.2016.11.21012

Abstract: The rules for defining the residency determines the scope of the tax jurisdiction of a state and fiscal conditions for foreign and domestic investors and companies. In their research the authors provide an analytical review of foreign states' approaches to defining the residency of individuals and legal entities and danalyze the concept of residency in terms of international tax policy. The authors also make recommendations regarding development the residency concept in the Russian Federation. They study the connection between rules for defining the tax residency, CFC rules, and non-residents' income taxation system in terms of OECD double taxation avoidance, and Russian tax legislation in part of approaches to the definition of residency. The authors make several important conclusions, for example, that developed countries tend to choose the territorial taxation system. The other conclusion is that due to the international tendency towards automatic information exchange between countries, it is advantageous to avoid the status of Russia's residents even though tax rates are rather low in Russia for individuals who are potential residents of countries with lower individual tax rates or no tax rates at all (such as Saudi Arabia or particular offshore jurisdictions) or countries where CFC rules do not apply.

Keywords: deoffshorization, tax competition, global tax system, territorial tax system, tax policy, tax residency, CFC, DTT, OECD Model Convention, PIT

DOI: 10.7256/2454-065X.2016.11.68358

Keywords: deoffshorization, tax competition, global tax system, territorial tax system, tax policy, tax residency, CFC, DTT, OECD Model Convention, PIT

DOI: 10.7256/2454-065X.2015.12.15357

Abstract: The author of the article examines the main aspects of the reform of the budgetary policy in the European Union, during which the interests of еру three large groups of EU Member States collided. In his research Golev shows the internal contradictions and different economic conditions in the EU Member States, which, considering their possibility to use the veto right, make it very difficult to reach a compromise regarding the formation of the long-term budget particularly considering the current geopolitical and geo-economical instability. The author considers the EU new measures differentiating areas in need of subsidies depending on their levels of socio-economic development. The author carries out a comparative analysis and critical assessment, adopted after lengthy approvals of the fifth seven-year EU budget. The author of the article notes that in the financial terms of the European Union, for the period from 2014 to 2020 the UE maintains a steady trend of budget cuts on agricultural and environmental programs. The author emphasizes the adoption of the new tax, which is so far offered to be implemented only in the EU countries that are ready for that, and it will be charged only from financial institutions - banks, investment funds and insurance companies.

Keywords: EU budget, Eurostat, European Fund, the economy of the European Union, veto, socio-economic development, subsidies, Annual Growth Survey, European Commission, European Parliament

DOI: 10.7256/2454-065X.2015.12.67387

Keywords: European Parliament, Annual Growth Survey, EU budget, European Commission, subsidies, socio-economic development, economy of the European Union, veto, European Fund, Eurostat

DOI: 10.7256/2454-065X.2015.12.17341

Abstract: The subject of the research is the theoretical and practical problems of the co-relation between the international anti-avoidance tax concept of 'beneficial owner of income' and principles of 'economic substance' and 'substantive business activity' of a foreign entity in his/her state of residence used for the purpose of tax convention application. There is a opinion that a foreign recipient of passive income has an 'economic substance' and 'substanctive business activity' in a state of his/her residence if there he/she has an office, employees, local directors and conduct actual entrepreneurial activity. Does it mean that a foreign company is automatically recognized as a 'beneficial owner' of passive income received out of the sources of a contracting state? In this research Balakina analyzes and systematizes the current approaches of OECD, foreign science and practice in the sphere of international taxation as well as approaches of Russian judicial and tax authorities to the problem. To substantiate theoretical provisions and practical results of the research, the author has used the methods of induction and deduction, comparative and logical analysis as well as systems and integrated approaches. The scientific novelty of the research is caused by the fact that the author provides a comprehensive analysis of the issue under research and offers recommendations aimed at differentiating between the concept of 'beneficial owner' of income and principles of 'economic substance' and 'substantive business activity' which is important for establishing particular criteria of the definition of 'beneficial owner' of income. The main conclusion of the research is that there are the two different anti-avoidance tax concepts from the point of view of legal science, and therefore they shouldn't be confused. The international tax concept of 'beneficial owner' of income relates to the scope of right for income earned by a foreign recipient of income but not the degree of economic attribution of a foreign recipient of income applying for a tax benefit based on the convention with a state of his/her residence. Despite the fact that foreign conduit companies usually do not have 'economic substance' or 'substantive business activity' in states of their residence, their presence does not always indicate them as the 'beneficial owner' of income.

DOI: 10.7256/2454-065X.2015.12.67388