The Beneficial Owner Concept in the Context of Beps: Problems and Prospects
cytuj
pobierz pliki
RIS BIB ENDNOTEChoose format
RIS BIB ENDNOTEThe Beneficial Owner Concept in the Context of Beps: Problems and Prospects
Publication date: 29.03.2019
Financial Law Review, 2019, Issue 13 (1)/ 2019, pp. 1 - 14
https://doi.org/10.4467/22996834FLR.19.001.10277Authors
The Beneficial Owner Concept in the Context of Beps: Problems and Prospects
The article analyzes the evolution of the beneficial owner concept in the context of the implementation of the Action Plan on Base Erosion and Profit Shifting. The main problem is the lack of an officially fixed definition of the term beneficial owner in international legal documents. The lack of unification in the definition of the concept of beneficial ownership, the ongoing discussions on its application, the growth of tax disputes, as well as the incompleteness of the reform in terms of the regulation of the concept in the OECD MC and its Commentary lend urgency and relevance to scientific research of the latter both in domestic and in world science of tax law. Although the terms beneficial owner, beneficial ownership, and so forth in the BEPS Plan may not be used directly, they are nevertheless of great practical value, especially in the light of the implementation of Actions 6 and 15 of the Plan. The article concludes that the concept is potentially compatible with other anti-abuse strategies (the limitation on benefits rule and the principal purpose test, in particular). The main issue that is explored in disputes about the norms of international agreements application is the assessment of the business purpose and proper qualification of the substance of the transactions (deals) made. In general, the beneficial owner concept not only has not lost its role in the fight against treaty shopping, but has taken up an official position among the instruments to combat BEPS.
Alvarez M., et al: Aproximacion al concepto de beneficiario efectivo, Approach to the Concept of Effective Beneficiary Available at: http://fcea.edu.uy/Jornadas_Academicas/2016/Ponencias/Contabilidad/Marziali,%20Alvarez%20y%20Garcia.pdf, access date 10th June 2018.
Brook, B.: Perspectives of the Codification of the Concept of a Beneficial Owner in the Russian Tax Legislation, Law no. 8. С (2014).
Collier R. Relevance of the OECD BEPS Project to Derivatives and Financial Instruments, Derivatives & Financial Instruments Vol. 16, No. 6 (2014).
Danon, J. R.: Treaty Abuse in the Post-BEPS World: Analysis of the Policy Shift and Impact of the Principal Purpose Test for MNE Groups, Bulletin for International Taxation Vol. 72, No. 1 (2018).
Eckert, J.-B. et al: Switzerland: The concept of beneficial ownership in double tax treaties in the context of financial transactions (2017), Available at: http://www.internationaltaxreview.com/Article/3745736/Switzerland-The-concept-of-beneficial-ownership-in-double-tax-treaties-in-the-context-of-financial.html, access date 1st June 2018.
Hagmann, Fr.: Beneficial Ownership - a concept in identity crisis, Lund: Lund University, 2017.
Kotlyarov, M.: The Concept of Beneficial Ownership in the OECD Model Tax Convention 2010: A Critical Analysis, Yekaterinburg, 2015.
Malek B. The concept of beneficial ownership in tax treaty practice, Lausanne: University of Lausanne, 2018.
Pérez J. D. P.: Are the LOB provisions efficient measures to prevent tax treaty hopping by taxpayers?, Tilburg: Tilburg University, 2017.
Preventing the Granting of Treaty Benefits in Inappropriate Circumstances, Action 6 // 2015 Final Report, OECD/G20 Base Erosion and Profit Shifting Project, Paris: OECD Publishing, 2015, Available at: https://www.oecd-ilibrary.org/docserver/9789264241695-en.pdf?expires=1524455484&id=id&accname=guest&checksum=DFE00B685562F388C61FBC38A3D6FB03, access date 21st April 2018.
Vallada, F.: Beneficial Ownership under Articles 10, 11 and 12 of the 2014 OECD Model Convention, in: Lang, M. et al: The OECD-Model-Convention and its Update 2014: Schriftenreihe IStR Band 90, Wien: Linde Verlag, 2015.
Yoshimura, K.: Clarifying the Meaning of “Beneficial Owner” in Tax Treaties, Tax Notes International No. 761 (2013).
Members of the Inclusive Framework on BEPS. Available at: http://www.oecd.org/tax/beps/inclusive-framework-on-beps-composition.pdf, access date 29th May 2018.
United States Model Income Tax Convention. Available at: https://www.treasury.gov/resource-center/tax-policy/treaties/Documents/Treaty-US%20Model-2016.pdf, access date: 10th June 2018
Information: Financial Law Review, 2019, Issue 13 (1)/ 2019, pp. 1 - 14
Article type: Original article
Siberian Federal University, 6 Maerchaka street, Krasnoyarsk 660075, Russia
Siberian Federal University, 6 Maerchaka street, Krasnoyarsk 660075, Russia
Published at: 29.03.2019
Article status: Open
Licence: CC BY-NC-ND
Percentage share of authors:
Classification number:
Article corrections:
-Publication languages:
EnglishView count: 2681
Number of downloads: 1352