Landmark decisions of the Indian and the Portuguese Supreme Courts on whether software income amounts to ‘royalty’ under Art. 12 of tax treaties: Two Paths for the same destination

By Dr. Amar Mehta  -  March 2, 2021

This article analyzes in-depth a decision of the Indian Supreme Court and a decision of the Portuguese Supreme Court on software income characterization from the tax treaty perspective.

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Permanent Establishment (PE): Could a joint-bidding bidding with an Indian company give rise to a foreign company’s PE in India?

By Dr. Amar Mehta  -  December 15, 2020

 This article analyzes a judicial decision dealing with the issue as to whether joint-bidding by a foreign company with its Indian subsidiary, and whether use of offices of the Indian subsidiary, could give rise to the foreign permanent establishment in India.

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Can domestic tax law legal fiction be read into a tax treaty?

By Dr. Amar Mehta  -  October 29, 2020

 This article analyzes as to whether Art. 3(2) of the tax treaties permit recourse to a ‘legal fiction’ (deeming provision) in a contracting state’s (domestic) tax law for interpreting an undefined tax treaty term.

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Can Art. 10 (Dividends) of tax treaties restrict the rate of Dividend Distribution Tax (DDT) under the Indian Income Tax Act?

By Dr. Amar Mehta  -  October 14, 2020

This article analyzes a landmark judicial precedent involving a ‘very high-stakes’ issue: could the Dividends articles in the applicable tax treaties restrict the rate of the Indian Dividend Distribution Tax (DDT) imposed under Sec. 115-O of the Indian Income Tax Act, 1961?

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Tax treaties and income characterization: Business profits versus capital gains (Part 2)

By Dr. Amar Mehta  -  September 10, 2020

The second part of this two-part article analyses some interesting judicial precedents from Canada, France, and Germany, wherein the courts were required to decide on some interesting characterization issues concerning 'business profits versus capital gains'.

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Tax treaties and income characterization: Business profits versus capital gains (Part 1)

By Dr. Amar Mehta  -  August 28, 2020

The first part of this two-part article analyses an Australian decision, wherein the Court was required to adjudicate as to whether capital gains from a merger transaction could be characterized as ‘business profits’ and, hence, escape the source state taxation in absence of attribution to a permanent establishment.

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Permanent Establishment: The requirement of geographical link for existence of PE and the principle of ‘Spatial Delimitation’

By Dr. Amar Mehta  -  August 5, 2020

This article analyzes important judicial precedents on the 'geographic test' and 'the principle of spatial delimitation' for existence of a fixed place permanent establishment under a tax treaty. 

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Can GAAR apply in treaty shopping cases? Can taxpayers invoke Canadian court’s landmark decision to defend against the PPT clause in post-BEPS era?

By Dr. Amar Mehta  -  July 9, 2020

This article covers a landmark Canadian court decision on whether the tax authorities can apply domestic tax law GAAR in tax treaty situations. 

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