The Multilateral Tax Convention has been ratified
The MLI does not offer a unified approach to replace all the provisions of the existing DTTs. Bilateral DTTs continue to be in force and will be entered into in future. The MLI amends or clarifies only a limited number of provisions of existing DTTs. The text of the MLI contains options for the legal solution of individual issues of cross-border taxation to be implemented taking into account the reservations that states may introduce when ratifying the MLI.
|The MLI model selected by the OECD as an ‘add-on’ for DTTs for certain situations not only simplifies the existing approaches but also increases the variety of rules that may be implemented.|
Russia has extended the MLI to 71 DTTs, including treaties with states that are often used for international tax planning (such as Cyprus, Luxembourg, the Netherlands, Ireland and Hong Kong). The MLI still does not cover treaties with a number of other states which are important trade partners of Russia (such as Germany, Switzerland, Sweden and Japan) as well as a few other countries.
|In order to assess whether the rules for taxing international transactions with a specific country are changing, it is necessary to assess whether the MLI has come into effect for such country and what reservations were introduced in relation to that country’s treaty with Russia when the MLI was ratified. For example, the USA is still refraining from even signing the MLI.|
The OECD offers supporting materials for the MLI available at www.oecd.org/tax/multilateral-convention-to-implement-tax-treaty-related-measures-to-prevent-beps.htm (the short reference is oe.cd/mli), including a matrix to check the status of the MLI and individual provisions of it (https://www.oecd.org/tax/treaties/mli-database-matrix-options-and-reservations.htm).
A correspondence table of conditions broken down by countries is available here: https://www.oecd.org/tax/treaties/mli-matching-database.htm.
The OECD recommends that countries publish anew the existing DTTs to include amendments made further to the MLI, and proposes guidelines to this end.
Restrictions of benefits
Russia has selected the following two tools to restrict benefits as provided for by the MLI:
- the principal purpose test (PPT); and
- the simplified limitation of benefits (S-LOB): the beneficiary of the income is required to meet stringent and formal criteria; however, a competent authority may also grant tax benefits to other persons claiming them only if it is proved that the principal purpose of such persons, who do not meet the formal criteria, is not to obtain benefits under a DTT.
The principal purpose test allows national tax authorities to refuse the application of benefits under a DTT if such application was the principal or one of the principal purposes of the structuring of transactions.
The requirement that there must be a business purpose not associated with tax is not new for Russian tax law since it is enshrined in article 54.1 of the Russian Tax Code and had been implemented in court practice even earlier. However, whereas article 54.1(2)(1) of the Tax Code requires that tax saving should not constitute, specifically, the principal purpose, the principal purpose test presents, within the framework of the MLI, the requirement is set out with an even stricter wording: if tax saving was only one of the principal purposes, the benefit will be refused. On the other hand, Russian tax authorities, with courts close behind, can currently refuse to recognise such purposes which do not explicitly prevail in comparison with the tax savings that the parties obtain.
The simplified limitation of benefits is a formal set of requirements for the person claiming benefits under a DTT: such benefits should be granted to so-called ‘qualifying persons’, which include:
- subjects of public authority;
- companies (other persons) owning shares the main class of which is traded on recognised stock markets on a regular basis;
- not-for-profit organisations the types of which have been agreed by the parties to the relevant DTT;
- pension and other social funds, as well as entities investing the monies of such funds; and
- other persons that are not individuals if, during at least half of the days within a twelve-month period, the above persons have directly or indirectly owned no less than 50% of the shares of the recipient of the income.
- the recipient of the income pursues active entrepreneurial activities in the country of its residence, and the income received in the source country is generated or connected with such activities (holding, management and financing companies are directly excluded from this category);
- the entrepreneurial activities that the recipient of the income is pursuing in its country are more substantial than the activities that such person is pursuing in the source country by itself or through its related person paying the income;
- during half of the days of any twelve-month period, equivalent beneficiaries, i.e. persons having the right to similar or more advantageous benefits on any grounds, directly or indirectly own at least a 75% membership interest in the resident claiming preferences under the relevant DTT.
Indirect sale of real estate
Permanent establishmentThe MLI introduces significant changes in the taxation of a permanent establishment.
The definition of ‘preparatory and other auxiliary activities’ is being narrowed. The so-called anti-fragmentation approach is being introduced. This provides for a permanent establishment to be formed even where a single business process is structured in the form of individual transactions each of which has a preparatory or supporting nature and, taken separately, does not lead to a permanent establishment being formed. If the tax authorities identify such abuse in the taxpayer’s actions, each of the business units will be recognised as a permanent establishment for tax purposes.
Persons with double tax residency
Mutual agreement procedures
|Russia has made the reservation that arbitration proceedings are not applicable as another form of dispute resolution. Therefore, all disputes between Russian and foreign authorities may be resolved only within the mutual agreement procedure. Previously, we have already written in detail about the regulations concerning the mutual agreement procedure drafted by the Russian Ministry of Finance.|
MLI provisions coming into force
- withholding tax;
- taxes paid in accordance with other procedures; and
- mutual agreement procedures.
As far as taxes paid in accordance with other procedures are concerned, these will be subject to provisions of the MLI after six months from their entry into force (taking into account three months after ratification, as mentioned above), but no earlier than 1 January of the following calendar year. For Russia, this is no earlier than 1 January 2021.
What to think about and what to do
Help from your adviser
- assessing the changes in the taxation rules for international transactions within the framework of a DTT to which Russia has extended the effect of the MLI;
- the interpretation and implementation of the new MLI requirements;
- conducting a principal purpose test in accordance with the MLI's requirements;
- proactively drawing up a legal position and documentation allowing you to substantiate the application of preferential provisions of a DTT taking the MLI into account.