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International Taxation
Definition
An agreement between two or more countries
for the avoidance of double taxation (of income
and capital)
Objective:
Avoiding double taxation, which would
otherwise arise from an international
transaction or event if each country imposed
its own tax on the same income or capital
Allocating the tax imposed between the
governments that are parties to the DTA
Preventing the evasion of taxation on those
international transactions or events
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Double Taxation
Treaties provide for the distribution
between the treaty partners of the
right to tax which may be exclusive of
shared between the treaty partners
Generally, treaties are primarily
concerned with the taxation of cross-
border income, although they may be
extended into taxation of capital (eg.
wealth and land taxes, inheritance,
estate and gift).
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History
First, they appeared in Germany
League of Nations when they
investigated the problem of juridical
double taxation
1923: Report on Double Taxation was
submitted to the League’s Economic
and Financial Commission.
1928 First draft model of DTA
Mexico draft and London draft
History
The United Nations: Organization for
European Economic Cooperation >>
Organization for Economic
Cooperation and Development
1963: First draft OECD Model DTA
1977 revision on the draft became
the standard for bilateral DTA
negotiation
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History
1980 UN First model DTA which
followed the 1977 OECD Model but
granted greater taxing rights to
source states (i.e capital importing
and developing countries) particularly
in respect to the taxation of business
income and passive investment
income
Prepare the proof for this statement!!
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Status (cont.)
A model DTA is just a model on which real DTAs
negotiated between countries can be based. The
models are the starting points for the countries’
negotiation.
The models are in no sense mandatory instruments
to be applied by members of the OECD or UN.
Many articles envisage that each country is free to
apply its own domestic legislation and techniques in
practice and may deviate from the model in the
light of a country’s particular circumstances.
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Other Model
The basis on which a country or a
group of countries formulate in DTAs
US Model: reflects the interest of US to
preserve its taxing rights as a country of
residence.
Multilateral Double Tax Treaties such as
the European Union (previously The
European Economic Community)
Nordic Convention
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Other Model
CARICOM Agreement 1994 was entered
into by 11 of the 14 member countries of
the Caribbean Community
It is premised on the exclusivity of the
source state’s right to tax and prohibition
against the taxpayer’s state of residence
levying tax on a worldwide income basis.
Thus, double taxation does not arise
Other multilateral double tax treaties
Relative Position
US Model OECD Nordic UN CARICOM
Model Conventio Model Agreement
n
Favours Favours
Residence source state
State
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Person covered
Pasal 1 OECD Model: This convention
shall apply to persons who are
residents of one or both of the
contracting states
Pengertian person: orang pribadi
(individual), badan (company) yaitu
badan hukum dan any entity treated
as body for tax purposes, dan
Kompulan orang pribadi atau badan
yang merupakan satu kesatuan
Person Covered
Partnership: Badan atau bukan?
Pasal 4(1) OECD Model: for the purpose
of this agreement, the term “resident of a
contracting state” means any person who,
under the laws of that contracting state, is
liable to tax therein by reason of his domicile,
residence, place of management, place of head
office, or any other criterion of a similar
nature”
Liable to tax: subject to tax on
worldwide income
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Person covered
Konsep resident berguna untuk:
Menentukan subjek pajak dalam
perjanjian
Menghilangkan pemajakan berganda sbg
akibat dual resident
Menghilangkan pemajakan berganda
antara negara domisili dan sumber.
Pasal-pasal substantif bisa diterapkan
hanya untuk resident. Khusus untuk
passive income perlu syarat beneficial
owner
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Taxes Covered
Taxes on income
Khusus Indonesia – Korea Selatan:
mengatur juga PPN
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Definisi Istilah
Definisinya diatur dalam Pasal 3 ayat 1 OECD Model
Definisinya tidak diatur dalam satu pasal tertentu tetapi
diatur dalam pasal-pasal lainnya
Definisinya tidak diatur dalam Pasal tententu dan juga
tidak diatur dalam pasal-pasal lainnya. Interpretasinya
diatur di Pasal 3(2)
As regards the application of the Convention at any time by a
Contracting State, any term not defined therein shall, unless the
context otherwise requires, have the meaning that it has at that
time under the law of that State for the purposes of the taxes to
which the Convention applies, any meaning under the applicable
tax laws of that State prevailing over a meaning given to the term
under other laws of that State
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