What is international Tax Law?
There is no such thing as an international tax. So what is 'international tax law'? It is the laws that apply to the taxing of activity that takes place in two or more countries.
International tax law is found in:
1) International Tax Agreements:
As with the DTAs, these other types of international agreements are most often bilateral, but may also be multilateral (for example, there is a Convention on Mutual Administrative Assistance in Tax Matters between OECD member countries).
2) Domestic laws that consider the jurisdiction to tax entities, and that concern the taxation on foreign income of residents (worldwide income), domestic income of non-residents and cross-border transactions. See the Domestic Legislation box below.
What is Double Taxation? What are Double Tax Agreements?
Double taxation occurs when a taxpayer is subject to comparable tax on the same income or gains in more than one country, which in effect taxes income twice.
Double tax agreements (DTAs) aim to prevent fiscal evasion regarding taxation, and to avoid prevent the double taxing of income by allocating taxing rights over this income between the treaty partner countries. The taxing rights may either be exclusive to one of the treaty partners, or shared between them.
DTAs are usually bilateral, but can also be multilateral treaties between several countries in a region (for example, there is a Nordic DTA) or under the auspices of a regional organisation (for example there is a DTA between the members of the Caribbean Community organisation, CARICOM).
The most common form of DTA is treaties for the avoidance of double taxation of income and capital. Measures in such treaties to prevent tax evasion typically include exchange of information provisions and other forms of mutual assistance. Another common type of DTA covers the avoidance of double taxation in respect of inheritance (or estate) and gift taxes.
See also the following open access journal articles from SSRN on double taxation, which are a good introduction to the topic:
Double Tax Agreement Models
The following two model conventions are the basis for almost all of the several thousand worldwide DTAs. Other models can be found by clicking on the Models link on the homepage of the IBFD Tax Research Platform.
OECD Model Tax Convention on Income and on Capital
The main purpose of the Organisation for Economic Co-operation and Development (OECD) Model Convention (9th ed, 2014 - open access) is to provide a means of settling on a uniform basis the most common problems that arise in the field of international double taxation. The Council of the OECD has recommended that member countries, when concluding or revising double tax agreements between themselves, should conform to the current Model Convention and commentary, having regard to the relevant reservations expressed by countries.
The full version contains the full text of the Model Convention, detailed commentaries on the articles, non-member economies' positions, the Recommendation of the OECD Council, historical notes (now expanded to go back to 1963), the detailed list of conventions between OECD member countries and background reports. The open-access version of the full Convention and commentary allows you to read but not download it as a PDF. To access the PDF version, use the UniMelb catalogue to access the subscription version (UniMelb staff & students).
A Condensed version of the Convention is also available (open access).
UN Model Double Taxation Convention Between Developed and Developing Countries
The UN Model Convention is designed for developing countries and countries with economies in transition as a basis for negotiation of their DTAs. The Model helps to move forward in a way that preserves an appropriate share of taxing rights for developing countries. It also promotes cooperation to deal with tax avoidance and evasion. Model Convention background documents and revisions.
The UN Model Convention and the Manual for the Negotiation of Bilateral Tax Treaties between Developed and Developing Countries are reviewed and updated by the Committee of Experts on International Cooperation in Tax Matters.
The UN Model Convention, together with detailed commentary on each article, is available on the UN iLibrary website (open access allows you to read the commentary but not download it as a PDF).
Information Exchange Model
OECD Model TIEA
The purpose of THE OECD Model Agreement on Exchange of Information on Tax Matters (Model TIEA) is to promote international co-operation in tax matters through exchange of information. It was developed by the OECD Global Forum Working Group on Effective Exchange of Information.The Model TIEA represents the standard of effective exchange of information for the purposes of the OECD’s initiative on harmful tax practices. The Model TIEA and Commentary was released in April 2002. It is not a binding instrument but contains two models for bilateral agreements. A large number of bilateral agreements have been based on this Agreement. See all bilateral agreements.
The Global Forum on Transparency and Exchange of Information for Tax Purposes is the multilateral framework within which work in the area of tax transparency and exchange of information is carried out by over 100 jurisdictions. The Global Forum is charged with in-depth monitoring and peer review of the implementation of the standards of transparency and exchange of information for tax purposes. These standards are primarily reflected in the 2002 OECD Model Agreement on Exchange of Information on Tax Matters (Model TIEA) and its commentary, and in Article 26 of the OECD Model Tax Convention on Income and on Capital and its commentary as updated in 2004, which has been incorporated in the UN Model Tax Convention. The standards provide for international exchange on request of foreseeably relevant information for the administration or enforcement of the domestic tax laws of a requesting party.
More information on the work of the Global Forum.
See the peer reviews for individual countries (UniMelb staff & students)
See also: Neve, Leo, 'The Peer Review Process of the Global Forum on Transparency and Exchange of Information for Tax Purposes: A Critical Assessment on Authority and Legitimacy' (2017) 10(2) Erasmus Law Review Available on SSRN (open access)
OECD Legal Instruments Database
The OECD develops legal instruments, referred to as 'the OECD Acts' on a wide range of topics, including Tax. The main types of Acts are Decisions and Recommendations. Other legal instruments developed by the OECD include Declarations and International Agreements. More information on the OECD legal instruments.
All OECD Acts and other instruments in force are available in the Legal Instruments Database, and can be searched, or browsed by subject, type, title etc. To find all legal instruments concerning international tax, browse by Subject>>Fiscal Affairs. Here you will find over 20 Recommendations, Declarations and Conventions concerning tax, including the Convention on Mutual Administrative Assistance in Tax Matters as amended by the 2010 Protocol, a multilateral treaty, to which 23 OECD Member States are parties. This treaty is also available in the UN Treaty Series.
See also Salehifar, Alireza, 'The Role of the OECD in the Current International Tax Law: Voluntary or "Obligatory"?' (2015) 10(1) Journal of the Australasian Tax Teachers Association 151
|See the OECD Centre for Tax Policy and Administration for all conventions, working papers, reports, policies, news etc on the tax topics listed below.|
Finding International Tax Agreements
Finding a comprehensive set of all international tax agreements can be problematic, unless you have access to commercial platforms such as the IBFD Tax Research Platform, which contains ALL international tax agreements.
1. To find the full text of all international tax agreements, use the Treaties database on the homepage of the IBFD tax research platform. This database contains more than 12,500 full text agreements, protocols, supplementary agreements, MOUs, and Exchange of Notes. Agreements can be browsed by country, region, international organisation, treaty subject (such as Tax Treaties (in IBFD these are called Income/Capital Treaties) and Tax Information Exchange Agreements (in IBFD these are called Exchange of Information Treaties and are grouped with Treaties on Administrative Assistance)), status, language and date. Treaties can also be searched with a sophisticated search engine.
A useful feature of this database is that individual Articles in all treaties have links to the comparable Article in the OECD, UN and other Model Treaties, so can be directly compared side by side.
2. To find the full text of all DTAs, use Worldwide Tax Treaties on the Tax Notes online platform. (Users need to register to use this and then sign on each time it is accessed). Once you access the platform, select Research Tools and then Worldwide Tax Treaties. Note: this database only includes DTAs, not other types of international agreements.
This database contains more than 10,000 full-text treaties, amending protocols, and similar documents. Up to date detailed country profiles are provided, as well as tools to directly compare both tax treaties and tax rates for every available jurisdiction. A useful feature of this database is that individual Articles in all treaties have a link to the comparable Article in the OECD Model Treaty, so can be directly compared side by side.
Open Access Databases
To find international tax treaties in individual countries, use eg:
A useful list of all Tax Conventions on Income and on Capital Between OECD Member Countries is available on the OECD website. This list only covers agreements between the 35 OECD member countries and does not link to the full-text agreements.
None of the open-access tools are as good, up to date, complete or as fast to use as the commercial databases, so if you have access to the commercial databases, do yourself a favour!
Commentary on all International Agreements
IBFD's encyclopaedic Global Tax Treaty Commentaries provides commentary and material on the OECD Model, the UN Model and other models, all tax treaties in general, and the treaty-related aspects of international taxation. It contains information, examples and tables on the article or topic in question, as well as hyperlinks to other collections in the IBFD Tax Research Platform, such as Treaties, Models, Country and Topical Analyses, Tax Treaty Case Law, and International Organisations’ Documentation.
The handiest way to identify domestic legislation from all countries covering taxation on foreign income of residents (worldwide income) and domestic income of non-residents is to use the IBFD Tax Research Platform. While all the country databases will describe the relevant rules, only the Country Analysis database will name the legislation. However, apart from linking to full-text US legislation, this database does not link to the full text of doemstic legislation - this will have to be found in individual country legislation databases.
Country Analysis provides detailed information on the tax regime in each country, divided into individual and corporate tax. Select a country from the left-hand menu, then you will see the individual and corporate chapters on the main screen. Select the International Aspects heading from either individual or corporate, and then use the + signs on the menu on the left to narrow the topic. Commentary on each topic is provided, together with references to legislation and legislative provisions, case citations, and links to full-text treaties and other international agreements.
Note that in this database DTAs are called 'Tax Treaties', and other international agreements, such as Exchange of Information Agreements, are under 'Treaties on Administrative Assistance'.
A handy feature of the Country Analysis database is that, when you are viewing a specific law of a country, you can quickly compare it with the comparable law in another country by clicking the Country Compare button at the bottom of the screen.
There is no international forum for hearing disputes between countries on international tax matters. Cases on international tax law issues are heard in domestic courts or regional courts (such as the European Court of Justice) and are usually disputes between a taxpayer and the government or tax enforcement body. So you will either need to search for cases applying and interpreting tax treaties and other international agreements in individual domestic or regional case law databases or use useful commercial online tools such as the following databases:
1. International Tax Law Reports (on Lexis Advance - vol 1(1998) to current) (UniMelb staff & students) - provides judgments and decisions of major domestic tax cases from all over the world, as well as decisions from the European Court of Justice. Topics covered include: interpretation and application of double taxation conventions based on OECD model provisions, transfer pricing, particularly cases on the application of pricing methodologies and application of controlled foreign corporation rules. The work also examines cross-border enforcement of tax debts and gathering of information, application of general anti-avoidance approaches, taxation and human rights instruments. The reports are issued six times a year and each covers about seven of the most significant cases. Concise headnotes and commentary are provided by the editor to ensure practitioners are made fully aware of the key points of the case. Note: This publication is far more selective in its coverage than the IBFD Tax Treaty Caselaw database discussed below.
2. the IBFD tax research platform (UniMelb staff & students), which contains some useful ways of finding worldwide domestic and regional cases:
Guides to Researching International Tax Law
Globalex Research Guide on International Tax Law by Chris Dykes (online - open access)
Books on International Tax Law
The books listed below are examples of recently published books held by the University of Melbourne Library, either as e-books or in print in the Law Library. To find more, search the Library catalogue using keywords or browse the shelves at KC 224 and KC 224.1 in the Law Library on Level 5.
In addition, UniMelb staff & students have access to over 280 international tax e-books on the IBFD Tax Research Platform (UniMelb staff & student access). Most of these titles do NOT appear in the Library catalogue, so you will need to access IBFD and then select Search>Books.
Journals and Journal Articles
To use tools for finding scholarly law journal articles, irrespective of which journal they are in, use the Journals tab in this Research Guide. These databases include articles from hundreds of legal journals, and an efficient and comprehensive way to find articles on your topic.
In addition, the following two specialist tax databases provide access to articles in many tax and tax-related journals (UniMelb staff & student access):
The Accounting, Tax & Banking Collection (on the Proquest Complete platform) brings together current news and articles from global scholarly and professional journals, and with other key resources for access to reliable information in this continuously evolving area of study. Coverage:1971 to current.
Individual full-text e-journals on international tax to which UniMelb staff & students have access include:
News / Current Awareness
The Tax Notes - online database - provides recent and in-depth international tax information. (UniMelb staff & students. Users need to register to use this and then sign on each time it is accessed). Email alerts can be set up to receive the latest information.
Tax Notes includes the following international tax publications: