On the development of Russian tax treaty case law
https://doi.org/10.52468/2542-1514.2024.8(2).120-129
Abstract
The research subject. This study focuses on recent developments (2021-2023) in Russian tax treaty case law.
The purpose of the research. The objective of this research is to analyze the key trends and developments in tax treaty case law in Russia for the last three years.
Methodology. The research is based on the analysis of cases where the commercial courts
of circuits and the Supreme court of Russian Federation in 2021-2023 applied Russian double tax treaties (total number – 38 cases).
Main results of the research. The analysis of the tax treaty case law allowed to make a general overview of the relevant judicial practice and identify three strategic areas of law enforcement – development of the beneficial owner concept, issues if qualification of income for the purposes of the application of tax treaties and disputes between withholding agents and taxpayers.
Conclusion. An analysis of judicial practice allows us to conclude that Russia is quite successful in implementing the task of deoffshorization of the Russian economy – this is noticeable both in the geography of the applied agreements and in the content of the issues under consideration. The tax treaty case law is heterogeneous – it includes both simple issues (for example, with obvious mistakes of a withholding agent) and issues on which judicial practice as a whole has already been established (for example, in relation to the beneficial owner concept), as well as quite extraordinary and sometimes difficult questions. It should be admitted that fundamentally new issues of application of double taxation agreements are sometimes not easy for the courts. An analysis of tax treaty case law puts forward the question of the role and risks of a withholding agent – currently the practice does not seem sufficiently balanced in terms of ensuring a balance of private and public interests. For application of double tax treaties procedural issues remain of great importance. Analysis of judicial practice shows that they are crucial both for the withholding agent and the taxpayer.
About the Author
E. V. Kilinkarova
St. Petersburg University
Russian Federation
Russian Federation
Elena V. Kilinkarova – PhD in Law, Associate Professor; Associate Professor, Department of Administrative and Financial Law; Scopus AuthorID: 57219343210; SPIN-код РИНЦ: 7515-4090; AuthorID: 508242
7/9, Universitetskaya nab., St. Petersburg, 199034
References
1. Vinnitskiy D.V. Russian double tax conventions: investment opportunities and anti-avoidance provisions. Intertax, 2008, no. 10, pp. 450–454.
2. Vinnitskiy D.V. Russia: Beneficial Owner/“Actual Owner” and Thin Capitalization, in: Tax Treaty Case Law Around the Globe 2021, IBFD Publ., 2022, pp. 149–160.
3. Vinnitskiy D.V. Test for meeting the beneficial owner requirement under Art. 10 of DTCs, in: Tax Treaty Case Law Around the Globe 2019, IBFD Publ., 2020, pp. 245–258.
4. Vinnitskiy D.V. Russia: Thin Capitalization, Recharacterization of Interest as Dividends and the Non-Discrimination Article, in: Tax Treaty Case Law Around the Globe 2017, IBFD Publ., 2018, pp. 399–415.
5. Vinnitskiy D.V. Russia: Withholding Tax on Agency Fees under the Russia-Germany Tax Treaty (Articles 14, 15 and 21), in: Tax Treaty Case Law Around the Globe 2015, IBFD Publ., 2016, pp. 257–268.
6. Vinnitskiy D.V. Russia: Thin Capitalization Rules between Sister Companies under Luxembourg-Russia DTC, in: Tax Treaty Case Law Around the Globe 2014, IBFD Publ., 2015, pp. 305–314.
7. Kilinkarova E.V. Avoidance of double taxation after Russia partially suspended international double tax treaties. Nalogoved, 2024, no. 1, pp. 21–29. (In Russ.).
8. Machekhin V.А. Application of international tax treaties in the RF: procedural problems. Finansovoe pravo = Financial Law, 2011, no. 7, pp. 36–40. (In Russ.).
9. Savitskiy A.I. From tax residency certificate towards international tax policy. Zakon, 2015, no. 6, pp. 166–180. (In Russ.).
10. Machekhin V.A. Beneficial ownership of the income: Russian fiscal authorities develop the concept. Nalogi = Taxes (Journal), 2015, no. 4, pp. 32–35. (In Russ.).
11. Anishchenko D.E. Conception of "actual right to incomes" in the Russian judicial practice. Nalogi = Taxes (Journal), 2016, no. 4, pp. 26–29. (In Russ.).
12. Arakelov S.A. Developing the concept of beneficial ownership for income: approaches of Federal Tax Service considering relevant court decisions. Zakon, 2017, no. 5, pp. 45–56. (In Russ.).
13. Tasalov K. Identifying conduit companies: a Russian perspective on the beneficial ownership concept. European Taxation, 2020, vol. 60, no. 12, pp. 536–545.
14. Ahmetshin R.I., Vasiliev N.A. Beneficial ownership of income: last year’s lessons. Nalogoved, 2022, no. 3, pp. 24–34. (In Russ.).
15. Dyomin A.V., Nikolaev A.V. Doctrine of beneficial owner in tax law. Moscow, Prospekt Publ., 2023. 296 p. (In Russ.).
16. Tasalov K.A., Volkov M.S. Criteria of conduit companies in the Russian beneficial ownership concept. Zakon, 2023, no. 11, pp. 32–39. DOI: 10.37239/0869-4400-2023-20-11-32-39. (In Russ.).
17. Vinnitsky D. The development of court practice in cases of inadequate capitalization in the Russian Federation in 2011-2016. Elektronnoe prilozhenie k «Rossiiskomu yuridicheskomu zhurnalu» = Electronic supplement to “Russian Juridical Journal”, 2017, no. 6, pp. 141–153. (In Russ.).
18. Akhonina Y., Mikhaylova M. Thin capitalization in Russia: rules, trends and changes. Intertax, 2016, no. 11, pp. 853–858.
19. Ponomareva K.A. Influence of internationalization of tax law on Russian tax law enforcement in the area of corporate taxation. Pravoprimenenie = Law Enforcement Review, 2017, vol. 1, no. 4, pp. 66–74. DOI: 10.24147/2542-1514.1(4).66-74.
20. Bachilova E.M. Taxation of sea transportation of Russian oil. Nalogoved, 2023, no. 10, pp. 25–36. (In Russ.).
21. Reimer E., Rust A. (eds.). Klaus Vogel on Double Taxation Conventions, 5th ed. Wolters Kluwer Publ., 2022. 2556 p.
22. Kurochkin D.A. Issues of Differentiation of Active and Passive Economic Activity Income in Russia in Terms of Cross-Border Taxation. Nalogi i nalogooblozhenie = Taxes and Taxation, 2017, no. 4, pp. 20–30. DOI: 10.7256/2454-065X.2017.4.22696. (In Russ.).
23. Khavanova I.A. Other income: complicated logic of Article 21 of Tax Conventions. Finansovoe pravo = Financial Law, 2022, no. 12, pp. 27–29. (In Russ.).
24. Bruk B.Ya. Methodological issues in the use and application of international tax treaties (part 1). Zakon, 2023, no. 11, pp. 101–111. DOI: 10.37239/0869-4400-2023-20-11-101-111. (In Russ.).
25. Anischenko D.E. Distribution of adverse tax consequences between a tax agent and a foreign company taxpayer. Nalogoved, 2022, no. 12, pp. 37–47. (In Russ.).
Review
For citations:
Kilinkarova E.V. On the development of Russian tax treaty case law. Law Enforcement Review. 2024;8(2):120-129. https://doi.org/10.52468/2542-1514.2024.8(2).120-129
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