Правоприменение (Jun 2024)
On the development of Russian tax treaty case law
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 courtsof 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.
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