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: 10.7256/2306-9899.2014.4.10986

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. 

DOI: 10.7256/2454-065X.2013.3.7433

Abstract:

DOI: 10.7256/2306-9899.2013.1.427

Abstract: The article provides detailed analysis of the modern theory of tax residence, which is used by the developed tax systems of the foreign states. This concept is absent in the Russian tax legislation, which is a significant gap in the tax regulation of economic activity and it gives way for tax evasion. The Ministry of Finances of the Russian Federation announced the need to introduce this concept into the Tax Code of the Russian Federation in accordance with its "Key Directions for the Tax Policy in the period from 2013 to 2015". Due to this fact this article is quite topical within the framework of upcoming legislative changes. The article includes not only theoretical bases for the tax residency concept for legal entities, but also analysis of judicial practices of various states, which use it, as well as some critical comments in part of adequacy of its application in the modern high technology international economy at the age of electronic commerce.  The article may be of interest to all those interested in the problems of modern tax policy.