1673
John F. Avery Jones et al. The Origins of the Concepts and Expressions Used in the OECD Model and their Adoption by States. IBFD Bulletin. 2006. P. 249. Footnote 350.
1674
Там же. На тот момент Швейцария уже использовала данный термин ранее в своем внутреннем декрете о противодействии злоупотреблениям от 31.12.1962 г.
1675
Klaus Vogel. Double Taxation Conventions. Kluwer Law International, 1997. Р. 562. Note 9.
1676
Ibid. P. 563. Note 10.
1677
Ibid.
1678
Roy Rohatgi. Basic International Taxation. Second Edition. Vol. 2: Practice. Taxmann, 2007. P. 143.
1679
Ministre de Économie v. Soc. Bank of Scotland (2006) 9 ITLR 683 (Conseil d’Etat).
1680
Prebble Z., Prebble J. Comparing the General Anti-Avoidance Rule of Income Tax Law with the Civil Law Doctrine of Abuse of Law. 62 Bulletin for International Taxation. 2008. P. 151.
1681
Richard Vann. Beneficial Ownership: What Does History (and maybe policy) Tell Us. Sydney Law School, Legal Studies Research Paper. Sept. 2012. № 12/66: «…Shares or stock in a corporation other than a municipal or governmental corporation (including shares or stock held by a nominee where the beneficial ownership is evidenced by scrip certificates or otherwise) shall be deemed to be situated at the place in or under the laws of which such corporation was created or organised…». URL: ssrn.com/abstract=2144038.
1682
Ibid.
1683
Ibid.: «The term „subsidiary corporation" referred to in Article XI of this Convention means a corporation all of whose shares (less directors qualifying shares) having full voting rights are beneficially owned by another corporation…».
1684
Ibid.
1685
Ibid.
1686
Ibid. Footnote 31.
1687
Charl du Toit. The Evolution of the Term «Beneficial Ownership» in Relation to International Taxation over the Past 45 Years. Bulletin for International Taxation – Tax Treaty Monitor. IBFD. October 2010. P. 502: «Relief from tax on dividends, interest and royalties… in the country of origin will no longer depend on whether the recipient is subject to tax in the other country, but will depend on the income being beneficially owned by a resident of the other country».
1688
Observations of Member Countries on difficulties raised by the OECD Draft Convention on Income and Capital. Comments received from Delegates on the OECD Draft Conventions (Art. 2 to 29) as at 2nd May 1967, and which supersedes TFD/FC/209; 9 May 1967. TFD/FC/216, p. 14. URL: www.taxtreatieshistory.org: «In our view the relief provided for under these Articles ought to apply only if the beneficial owner of the income in question is resident in the other contracting State, for otherwise the Articles are open to abuse by taxpayers who are resident in third countries and who could, for instance, put their income into the hands of bare nominees who are resident in the other contracting State. You will no doubt have noticed that our recent protocols with the United States and with Switzerland we have introduced this test of beneficial ownership which clearly reflects what was intended by the Committee when the Model Convention was prepared».
1689
United States. Technical Memorandum of Treasury Department Concerning Proposed Protocol Amending the Income Tax Convention between the United States and the United Kingdom (1966), Document 93-30729B.
1690
J. David B. Oliver, Jerome B. Libin, Stef van Weeghel and Charl du Toit. Beneficial Ownership. IBFD Bulletin for International Taxation. July 2000. P. 323. Footnote 39.
1691
Richard Vann. Beneficial Ownership: What Does History (and maybe policy) Tell Us. Sydney Law School, Legal Studies Research Paper. Sept. 2012. № 12/66. Footnote 28.
1692
Ibid. Footnote 31.
1693
Ibid.
1694
The National Archives (UK) Public Record Office, File IR 40/16741, «Beneficial Ownership» in Richard Vann. Beneficial Ownership: What Does History (and maybe policy) Tell Us; Taylor C. J. The Negotiation and Drafting of the 1967 United Kingdom – Australia Taxation Treaty. Studies in the History of Tax Law. Vol. 5. Oxford: Hart Publishing, 2011. P. 427–502.
1695
OECD Model Tax Convention on Income and on Capital: Condensed Version. Paris, OECD Publishing, 2014. Double Taxation Conventions And The Use Of Conduit Companies.
1696
Progress Report of Subcommittee on Improper Use of Tax Treaties: Beneficial Ownership. Economic and Social Council Committee of Experts on International Cooperation in Tax Matters Fourth session Geneva, 20–24 October 2008 (E/C.18/2008/CRP.2/Add.1).
1697
OECD Model Tax Convention on Income and on Capital: Condensed Version. Paris, OECD Publishing, 2014. Article 10. § 1. P. 30.
1698
Ibid. Commentary to art. 10. § 12. P. 188.
1699
Ibid. § 12.1. P. 188–189.
1700
R(6). Double taxation conventions and the use of conduit companies. OECD, November 27, 1986.
1701
OECD Model Tax Convention on Income and on Capital: Condensed Version. Paris, OECD Publishing, 2014. Commentary to art. 10. § 12.2. P. 189.
1702
Ibid. Commentary to art. 11. § 11. P. 215.
1703
Ibid. Commentary to art. 12. § 4.2. P. 225.
1704
Council Directive 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States. Official Journal L 157, 26.6.2003. P. 49–54. URL: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32003L0049:en: HTML.
1705
Council Directive 2003/48/EC of 3 June 2003 on taxation of savings income in the form of interest payments Official Journal L 157/38, 26.
1706
«4. A company of a Member State shall be treated as the beneficial owner of interest or royalties only if it receives those payments for its own benefit and not as an intermediary, such as an agent, trustee or authorised signatory, for some other person».
1707
Article 5: «1. This Directive shall not preclude the application of domestic or agreement-based provisions required for the prevention of fraud or abuse. 2. Member States may, in the case of transactions for which the principal motive or one of the principal motives is tax evasion, tax avoidance or abuse, withdraw the benefits of this Directive or refuse to apply this Directive».
1708
5 Case C-373/00 Adolf Truly GmbH v Bestattung Wien GmbH (2003) ECR I-01931. § 35.
1709
Jūlija Petkeviča. The concept of beneficial owner: From international tax law to community law. Riga Graduate School of Law. Working Papers. 2005. № 26. P. 18. URL: www.rgsl.edu.lv/images/stories/publications/RWP24Petkevica.pdf.
1710
Cerioni L. Intra-EC Interest and Royalties Tax Treatment. IBFD, European Taxation. January, 2004. P. 52.
1711
Royal Dutch Shell, Hoge Raad, 6April 1994, BNB 1994.
1712
Indofood International Finance Ltd v. JP Morgan Chase Bank NA (2006) EWCA Civ 158. URL: judgmental.org.uk/judgments/EWCA-Civ/2006/[2006]_EWCA_Civ_158.html.
1713
Prévost
