publication . Article . 2014

NATIONALITY NON-DISCRIMINATION IN SERBIAN TAX TREATY LAW

Svetislav Kostic;
Open Access English
  • Published: 01 Jan 2014 Journal: Anali Pravnog Fakulteta u Beogradu (issn: 0003-2565, eissn: 2406-2693, Copyright policy)
  • Publisher: University of Belgrade, Faculty of Law, Belgrade, Serbia
Abstract
This paper deals with the nationality non-discrimination provision in Serbian double taxation treaties. First the author analyses the historical development of the nationality non-discrimination clause found the in the OECD Model Tax Convention and illustrates the dilemmas related to its interpretation, particularly the relevance of residence of taxpayers for comparability purposes and the application of Art. 24.1 of the OECD Model Tax Convention. Subsequently, the author turns his attention to the solutions found in Serbian double taxation treaties which are methodologically divided into three groups. One of them stands out as the most notable, being unique in ...
Subjects
free text keywords: non-discrimination, residents, non-residents, double taxation treaties, OECD model tax convention, Law, K, Tax law, Scrutiny, Residence, Convention, International taxation, Nationality, Double taxation, Tax treaty, Political science
37 references, page 1 of 3

5 See: R. S. Avi-Yonah, “Double Tax Treaties: an Introduction”, December 3, 2007, http://ssrn.com/abstract=1048441 or http://dx.doi.org/10.2139/ssrn.1048441, last visited 30 September 2014.

6 See: OECD Model Tax Convention on Income and on Capital - Full Version (as it read on 22 July 2010), OECD Publishing, Paris 2012, I-4.

7 In 2014 Serbia applies double taxation conventions with the following countries: Albania, Austria, Azerbaijan, Belgium, Belorussia, Bosnia and Herzegovina, Bulgaria, Canada, (PR) China, Croatia, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, India, Iran, Ireland, Italy, (DPR)

14 See: D. Popović, Poresko pravo, Pravni fakultet Univerziteta u Beogradu, Beograd 2013, 225-226.

15 See: L. Cerioni, “Tax Residence Conflicts and Double Taxation: Possible Solutions?”, Bulletin for International Taxation, Vol. 66, 12/2012, 647.

16 See: D. Popović, 230.

18 E.g. Art. 25, para. 1 and Art. 40, para 1 of the Serbian Corporate Income Tax Law, Official Gazette of the Republic of Serbia, No. 25/01, 80/02, 80/02, 43/03, 84/04, 18/10, 101/11, 119/12, 47/13, 108/13 and 68/14.

19 See: M. C. Bennett, “The David R. Tillinghast Lecture Nondiscrimination in International Tax Law: A Concept in Search of a Principle”, The Tillinghast Lecture 1996 - 2005, NYU School of Law, New York 2007, 411-412.

21 See: Ibid.

22 See: Para. 1 of the Commentary on Art. 24 of the OECD Model Tax Conven-

23 See: Paras. 9 and 17 of the Commentary on Art. 24 of the OECD Model Tax Convention.

24 See: Para. 4 of the Commentary on Art. 24 of the OECD Model Tax Conven-

25 Prior to the 2008 additions to the Commentary the courts in several jurisdictions (logically) interpreted Art. 24.1 of the OECD Model Tax Convention to contain a principle to which all other provision of the OECD Model Tax Convention must adhere. See: Undisclosed v. Commissioner for Inland Revenue of 10 March 1992, 54 SATC 456 (T); BFH, Beschluss vom 14.09.1994 - I B 40/94; BFH, Urteil vom 22.4.1998 - I R 54/96.

26 If Art. 24.1 of the OECD Model Tax Convention was given the power to deny countries the prerogative to freely discriminate between residents and non-residents, this would inevitably lead to the renegotiation of most double taxation treaties being applied today and in some cases their termination.

27 In other words, residents and non-residents may be in comparable circumstances, but this has to be confirmed on a case by case basis.

37 references, page 1 of 3
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