Introduction
OECD Guidelines as Model Convention with Respect to Taxes on Income and on Capital has been argued as one of customary law in International Taxation,[1] although guidance by OECD is considered to be soft law, however many state practices refer to OECD guidelines in creating treaties in taxation, thus it has been fulfilled one of the requirement to be considered as International Customary Law. [2] This case study will analyze regarding the comparison between bilateral treaty of avoidance of double taxation between countries, and OECD Model Convention with Respect to Taxes on Income and on Capital. This case study will see further regarding the differentiation and the similarity between the bilateral treaty and the OECD Model Convention.
Comparison Between OECD Guidelines of Articles of the Model Convention with Respect to Taxes on Income and on Capital, and on Agreement between the Republic of Indonesia and the Grand Duchy of Luxembourg on Avoidance of Double Taxation
Indonesia does not have its own model taxation, therefore in this case study, to see whether Indonesia and Luxembourg has conclude a bilateral treaty which is in accordance to state practice in international taxation, in this case study will elaborate, compare and see further comparisons between OECD Guidelines of Articles of the Model Convention with Respect to Taxes on Income and on Capital (hereinafter “The Model Convention”) and Agreement between The Republic of Indonesia and the Grand Duchy of Luxembourg on Avoidance of Double Taxation (hereinafter “The Agreement”) to find regarding which deviating principle are used in the Agreement compare to the Model Convention
Under article 5, and 7 of the Agreement can be found several differences in the content of the Agreement. Article 5 of the Agreement includes another terms for “Permanent Establishment” which is not elaborated under Article 5 of the Model Convention. In the Agreement, the Contracting States added a few terms in defining “Permanent Establishment” which are a farm or plantation and a mine an oil gas or gas well or exploitation of natural resources which is not covered on Model Convention.
Moreover, in Article 7 of the Agreement, regarding business profits, Article 7 of the Agreement describes regarding Contracting State which has rights to tax of the profit of an enterprise is the contracting state which the permanent establishment situated therein. The other state has the right to tax if:
- if there’s a permanent establishment,
- sales in that other state of goods or merchandise of the same or similar kind as those sold through that permanent establishment
- other business activities carried on in that other state of the same or similar kind as those effected through that permanent establishment.
Article 7 of the Agreement provides exceptions for deductions, however there are several differences between the Agreement compare to Model Convention. In Article 7 of the Agreement, they added a few clauses regarding deductions of amount which should be paid from permanent establishment to the head office of the enterprise or any other office, by way of royalties, fees, or other similar payments in return for the use of patents or other rights, or by way of commission, for specific services performed or for management, or, except in the case of a banking enterprise, by way of interest on moneys lent to the permanent establishment. Likewise, no account shall be taken, in the determination of the profits of a permanent establishment, for amounts charged (otherwise than towards reimbursement of actual expenses), by the permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents or other rights, or by way of commission for specific services performed or for management, or, except in the case of a banking enterprise, by way of interest on moneys lent to the head office of the enterprise or any of its other offices. This is not covered under Article 7 of the Model Convention. However, this differentiation is still possible, since the interpretation of permanent establishment is different for each country, therefore it is important for both countries to conclude Article 7 by mutual agreement, which is covered under Article 25 of the Model Convention.[3]
Under Article 10 of the Agreement, the Parties regulate different percentage of dividends which should be taxed in the Contracting State which the company paying the dividends is a resident, if the recipient is the beneficial owner of the dividends the tax so charged shall not exceed 10% of the gross amount of the dividends if the beneficial owner is a company (other than a partnership) which holds directly at least 25% of the capital of the company paying the dividends. Under the Model Convention, it regulates different percentage of amount,which the dividends may be taxed in the Contracting State, if the beneficial owner of the dividends is the resident of the other Contracting State, the tax so charge according to the Model Convention shall not exceed 5%
According to the Agreement, where a company which is resident of Luxembourg has a permanent establishment in Indonesia, the profits of that permanent establishment may be subjected to an additional tax in Indonesia in accordance with its laws, but the additional tax so charged shall not exceed 10% of the amount of such profits after deducting there from the income tax imposed there on in Indonesia, and shall not affect the provisions contained in any production sharing contracts and contracts of work (or any other similar contracts) relating to oil and gas sector or other mining sector concluded by the Government of Indonesia, its instrumentality, its relevant state oil and gas company or any other entity thereof with a person who is a resident of Luxembourg. This is the added clause and not stated under the Model Convention.
Article 11 (1) of the Agreement and the Model Convention regulate that interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in the other Contracting State. However, both the Agreement and the Model Convention also regulate that such interest may also be taxed in the Contracting State in which it arises, and according to the laws of that State, but if the recipient is the beneficial owner of the interest the tax so charged shall not exceed 10% of the gross amount of the interest. The competent authorities of the Contracting States shall by mutual agreement settle the mode of application of this limitation.
Article 12 of the Agreement regulates regarding royalties and they added fees for technical services which should be taxed in the Contracting State in which they arise, if the recipient is the beneficial owner of the royalties and fees for technical services the tax so charged shall not exceed in the cae of royalties 12.5% of the gross amount of such royalties, in the case of fees for technical servies 10% of the gross amount of such fees. The agreement of avoidance of double taxation also elaborates regarding the term “royalties” which is not covered on the Model Convention.
The Agreement regulates regarding independent personal services, which has been deleted from the Model Convention. Independent personal services which regulated under the Agreement regulates regarding professional services or other activities of an independent character shall be taxable only in that states unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities or he is present in that other State for a period or periods exceeding in the aggregate 91 days in any taxable year. If he has such a fixed base or remains in that other State for the aforesaid period or periods, the income may be taxed in that other State but only so much of it as is attributable to that fixed base or is derived in that other State during the aforesaid period or periods. The term "professional services" includes especially independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, engineers, lawyers, architects, dentists and accountants.
Article 15 of the Agreement regulates different title compare to Article 15 of the Model Convention. Article 15 of the Agreement regulates regarding Dependent Personal Services, while Article 15 of the Model Convention regulates regarding Income From Employment. However, from the content of the article, article 15 of the Agreement complies with Article 15 of the Model Convention.
Article 17 of the Agreement regulates regarding athletes and artistes, as well with article 17 of the Model Convention. What makes it different is under Article 17 of the Agreement, if income derived from activities performed under a cultural agreement or arrangement between the Contracting States shall be exempt from tax in the Contracting State in which the activities are exercised if the visit to that State is wholly or substantially supported by funds of one or both of the Contracting States, a local authority or public institution, this is not stated under the Model Convention.
Article 21 of the Agreement regulates regarding Other Income, which is Items of income of a resident of a Contracting State which are not expressly mentioned in the Agreement and shall be taxable only in that State except that, if such income is derived from sources within the other Contracting State, it may also be taxed in that other State. Article 21 of the Agreement does not regulate regarding income other than income from immovable property as what has been stated and regulated under Article 21 of the Model Convention. According to Article 21 of the Model Convention, if the recipient of such income being a resident of a Contracting State, carries on business in the other Contracting State through a permanent establishment situated therein and the right or property in respect of which the income is paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 regarding business profit shall apply.
Pursuant to Article 23 (1) of the Agreement regarding elimination of double taxation, Luxembourg agreed to exempt income or capital from tax which may be taxed in Indonesia, however to calculate the amount of tax on the remaining income or capital of the resident, Luxembourg shall apply the same rates of tax as if the income or capital had not been exempted. This provision complies with Article 23(1) of the Model Convention.
With reference to article 10,11,12, and 21 regarding dividends, interest, royalties, fees for technical services, and other income, where a resident of Luxembourg derives income, Indonesia has rights to tax the income, and Luxembourg shall allow as a deduction from the tax on the income of that resident an amount equal to the tax paid in Indonesia. Deduction shall not exceed the part of the tax, as computed before the deduction is given which is attributable to such items of income derived from Indonesia.
The regulation abovementioned is stated under Article 23(2) of the Agreement. Model Convention regulates the same thing, however, Model Convention refers only to article 10 and 11 regarding dividends and interest in which a contracting state has rights to tax the income, and the other contracting state has right to deduct from the tax on the income of that resident an amount equal to the tax paid in that other state.
If a company, incorporated in Luxembourg derives dividends from Indonesia sources, Luxembourg shall exempt such dividends from tax, if the company which is a resident of Luxembourg holds directly at least 25% of the capital of the company paying the dividends since the beginning of the accounting year. The same rule apply to Indonesian company, which under the same conditions exempt from the Luxembourg capital tax.
To eliminate double taxation in Indonesia, if a resident of Indonesia derives Income from Luxembourg, the amount of tax payable to Luxembourg in respect of the income shall be allowed as credit against the Indonesian tax imposed on that resident. The amount of credit shall not exceed the part of the Indonesian tax in which is appropriate to such income.
If there is an exemption of tax impose to a resident, the contracting state where resident is domicile, in calculating the amount of tax on the remaining income or capital of such resident, shall take into account the exempted income or capital. This is stated under article 23(3) of the Agreement. However, article 23(1) of the Agreement shall not apply to income derived or capital owned by a resident of a Contracting State where the other Contracting State applies the provisions of the Convention to exempt such income or capital from tax or applies the provisions of paragraph 2 of Article 10 or 11 to such income. Therefore, Indonesia applies Credit Method as what has been elaborated under Article 23 B of the Model Convention.
Regarding non-discrimination provision under Model Convention and the Agreement, there are several differentiation. Article 24 of the Agreement does not regulate regarding non-discrimination for stateless person as what has been regulated under Article 24(2) of the Model Convention. Moreover, the Agreement added one clause for non-discrimination provision, which is not covered under the Model Convention. The added clause is regarding Interest, royalties and other disbursements paid by an enterprise of a Contracting State to a resident of the other Contracting State. The non-discrimination under Article 24 of the Agreement regarding interest, royalties and other disbursements are made for the purpose of determining the taxable profits of such enterprise. The tax, therefore shall be deductible under the same conditions as if they had been paid to a resident of the first-mentioned State. Similarly, any debts of an enterprise of a Contracting State to a resident of the other Contracting State shall, for the purpose of determining the taxable capital of such enterprise, be deductible under the same conditions as if they had been contracted to a resident of the first-mentioned State.
Article 26 of the Agreement elaborates different provision compare to the Model Convention, which elaborates regarding Exchange of Information, which covered under Article 27 of the Agreement Article 26 of the Agreement stated that Where a person considers that the actions of one or both of the Contracting States result or will result for him in taxation not in accordance with the provisions of this Agreement, he may, irrespective of the remedies provided by the domestic law of those States, present his case to the competent authority of the Contracting State of which he is a resident or, if his case comes under paragraph 1 of Article 24, to that of the Contracting State of which he is a national. The case must be presented within 2years from the first notification of the action resulting in taxation not in accordance with the provisions of the Agreement.
Moreover, Article 29 of the Agreement provide exception for territorial scope of the Agreement which are the Agreement shall apply neither to holding companies within the meaning of special Luxembourg Laws, nor to companies subject to a similar fiscal law in Luxembourg. Neither shall it apply to income derived from such companies by a resident of Indonesia, nor to shares or other rights in such companies owned by such a person. Meanwhile, Article 29 of the Model Convention stated that the scope of its territorial may be extended either in its entirety or with any necessary
modifications which is specifically excluded from the application of the Convention.
Conclusion
The Agreement has used principles under the Model Convention to regulate regarding avoidance of double taxation between Indonesia and Luxembourg. Several terms have been added however to the Agreement, and this is in accordance with Article 25 of the Model Convention, that Contracting States may under mutual agreement make several changes if there is no agreement between both countries regarding several provision stated under the Model Convention. The deviating principle might shows under article 14 of the Agreement, which elaborates regarding independent personal services. This article does not shown in the Model Convention and has been deleted from the Model Convention. Moreover Article 17 and 21 added several clauses, are not covered under the Model Convention. Article 26 of the Agreement stated different themes compare to Article 26 of the Model Convention. Article 26 of the Agreement regulates for protection of the taxable person, if he has been taxed not in accordance with the Agreement. This is not covered under the Model Convention. In conclusion, Indonesia and Luxembourg has refer to OECD Model Convention to conclude a bilateral treaty between them, and only made several changes as what has been agreed by both parties, in which the changes is in accordance to OECD Model Convention.
Literature
Allison Christian, ‘Hard Law and Soft Law in International Taxation’, Legal Studies Research Paper Series Paper No.1049, Wisconsin Law School. (2007).
Agreement between The Republic of Indonesia and the Grand Duchy of Luxembourg on Avoidance of Double Taxation (In force in 17 February 1994)
International & Foreign Legal Research, ‘Researching Customary International Law and Generally Recognized Principles, http://www.law.berkeley.edu/ library/classes/iflr/customary.html (2007).
OECD Guidelines of Articles of the Model Convention with Respect to Taxes on Income and on Capital
OECD, ‘Revised Commentary on Article 7 of the OECD Model Tax Convention,’ Centre for Tax Policy and Administration. (2007)
[1] Allison Christian, ‘Hard Law and Soft Law in International Taxation’, Legal Studies Research Paper Series Paper No.1049, Wisconsin Law School, (2007), p.1
[2] International & Foreign Legal Research, ‘Researching Customary International Law and Generally Recognized Principles, http://www.law.berkeley.edu/
library/classes/iflr/customary.html (2007), p.1
[3] OECD, ‘Revised Commentary on Article 7 of the OECD Model Tax Convention,’,Centre for Tax Policy and Administration, (2007), p.1
