There has been a lot of fuss about the tax abuse done by giant tech corporations that have been drawing the attention of the Government as well as the public. Financial crisis of 2008 led to a lot of attention on such tax affairs leading to retaliation by OECD in the form of its BEPS Projects. India has been at the forefront in introducing the action plans of the BEPS in its tax laws by introducing Equalization Levy to tax the Digital economy.

In this regard, Mr. Arpith Jain (Lead, India and APAC Corporate Tax at Finastra) discusses the interplay of Equalization levy (EL) and the treaty provisions. Observing that the EL has been specifically kept out of the Income tax provisions, the author ponders over the question as to whether the EL can be kept outside of the income tax treaties as well.The author makes a comparative analysis of OECD model treaties and Indian treaties, discusses Article 2 and 24 of the tax treaties, elucidates on whether EL can be treated as covered tax under Article 2. Comparing the EL provisions with Income tax, the authorstates “the only de-link between EL and income tax is the PE. Income tax needs PE to tax an income and EL does exact opposite i.e. taxes where PE is absent.” The author also analyses if the EL is discriminatory in terms of Article 24. Further, the author states that introduction of Article 12B (similar to the EL) in the UN model and its commentary suggest that the treaties currently do not tax these specified services in absence of PE and hence the necessity of the new article has arisen. While signing off, the author remarks “We already have a wider definition of business connection, with introduction to Dependent Agent PE, and Significant Economic Presence in the income tax Act. We also have the Equalisation Levy, it seem like Indian administration is not leaving no stone unturned in the attempt to tax the Digital Business.”

Equalization Levy and Treaties

Introduction:

Financial crisis of 2008 lead to lot of attention on the tax affairs of the tech corporations by the public as well as the Governments[1]. The OECD, backed by the G20, has retaliated to this abuse by MNEs in its Action against Base Erosion & Profits Shifting (“BEPS”) Project.[2] Action 1 of the BEPS Project focused on the digital economy but didn’t come up with any concrete solutions to the BEPS concerns. However, the Final Report of BEPS Action 1 evaluated different tax measures addressing the issues raised by the digital economy. Also, the nations are yet to reach at a consensus on the implementing these proposals and discussions are still in progress. However, despite these ongoing multilateral negotiations, several countries have decided to move ahead with unilateral measures to tax the digital economy.

India has been forefront in introducing the action plans of the BEPS in its tax laws. One of the actions introduced is the Equalization Levy. India is not the only country which has introduced such a tax, many other nations have come up with their own versions. Not only nations, The European Commission has confirmed that it will go ahead with its own digital tax early 2021 for the European Union if the OECD does not reach a global agreement.

Equalisation Levy (“EL”) has been introduced in India in two variants, the first one was in 2016 commonly known as “Google Tax” or “Equalization Levy 1.0”, this tax was introduced as a withholding tax. The second was in 2020 commonly known as the “Amazon Tax” or “Equalization Levy 2.0”, this tax is directly levied on the Non-resident.

In this paper, I would like to discuss the interplay of Equalization levy and the treaty, if you think if you would get a definitive answer then you would be disappointed, but what I am making is an attempt to analyze if the levy can be subjected to the provisions of the treaties. I Would not be dealing with the provisions and intricacies of the Equalisation Levy unless, it is required in the context.

The EL 1.0 covered only services. Whereas, the EL 2.0 covered e-commerce supply or services. The EL is introduced via part of Finance Act and not by way of amendment to the Income tax of Act, of 1961. The reason of implementing it outside of income tax act, makes it plausible that the EL can be kept outside of the income tax treaties as well. Which begs the question that, just because a tax is outside the income tax, can it really be outside the protection of the treaties? Hence, it becomes relevant for us to analyze the provisions of the treaties.

Provisions of the treaty:

We shall discuss the relevant article for this discussion which would be Article 2 - TAXES COVERED and Article 24 - NON-DISCRIMINATION

Article 2

Both UN & OECD Model treaties are identical hence we shall discuss on the OECD model Convention of 2017

Article	OECD Model	Indian Treaties
Para 1	This Convention shall apply to taxes on income and on capital imposed on behalf of a Contracting State or of its political subdivisions or local authorities, irrespective of the manner in which they are levied.	Indian treaties either do not have this Para[3], or generally restricted to taxes on income and not capital.
Para 2	There shall be regarded as taxes on income and on capital all taxes imposed on total income, on total capital, or on elements of income or of capital, including taxes on gains from the alienation of movable or immovable property, taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation.	Indian treaties either do not have this Para, or in some cases does not include payroll taxes (may be as payroll taxes are part of income tax Act).
Para 3	The existing taxes to which the Convention shall apply are in particular: a) (in State A): .......................................... b) (in State B): ..........................................	India similar to several other countries has opted[4] the option of making this list of taxes exhaustive.
Para 4	The Convention shall apply also to any identical or substantially similar taxes that are imposed after the date of signature of the Convention in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any significant changes that have been made in their taxation laws	All the treaties cover this except in certain cases[5] the condition to notify the changes is absent.

 

Now let us try and understand the provisions of the treaty in more detail:

Para 1: This paragraph defines the scope of application of the treaties. The model convention doesn’t include the word direct taxes and instead, the words taxes on income and capital are used, as the word direct tax is not too precise[6] and the intent is to widen the field of application of the treaties as much as possible [7]. This para is missing in most of our treaties but, the OECD commentary on this para cannot be totally redundant, as the commentary could be seen as a preamble for the kind of taxes the OECD model convention intends to cover. The convention does not explicitly excludes indirect taxes, however, if indirect tax results in double tax it has become customary not to address such issues in an income (and capital) tax treaty.[8] Consumption taxes, excise taxes, social security taxes and gift/inheritance/estate taxes also frequently raise issues of overlapping tax jurisdictions. Also, these non-income taxes also often overlap with the income tax in terms of the tax base and thereby create further layers of multiple taxation.[9] Nonetheless, scope of the tax treaties are largely limited to income taxes, only a small portion of tax treaties covers capital taxes.

Commentary also suggests that the method of levying the taxes is not relevant whether it is by way of direct assessment or by deduction at the source, in the form of surtaxes or surcharges, or as additional taxes[10]. Income taxes levied on non-residents by withholding can raise two types of interpretive issues. First, final withholding taxes are typically levied on gross amounts paid. This could be in tension with the conception of the income tax as being imposed on net income, and a tax calculated by reference to gross amounts becomes harder to distinguish from a non-income tax that is imposed on the revenue or turnover of taxpayers. Second, withholding taxes are collected by persons other than the taxpayer that is primarily liable for the tax. An equivalent tax can be imposed as an excise tax on the payer. If this simple shifting of nominal legal liability from one party to another suffices to change an income tax into a non-income tax, that would be another way in which the boundary delineating the scope of tax treaties can appear arbitrary.[11]

Para 2: This paragraph gives a definition of taxes on income and on capital.[12] The covered taxes includes any new taxes which are introduced or existing taxes are substantially modified later[13]. If the countries opt to retain Para 1 and Para 2 of the convention which contains the definition and scope of taxes covered, then the taxes covered in para 3 is not an exhaustive list but just an illustrative list, whereas if the treaties merely states the list of taxes covered containing no abstract definition of their substantive scope of application but merely list the taxes covered i.e. retaining only para 3 and ignoring para 1 and 2, then the list of taxes would tantamount to be an exhaustive list for the existing taxes.[14] Almost half of Indian treaties follows the latter approach.[15]

The term taxes and meaning to the term taxes becomes highly relevant as to what tantamount to be a tax. Also, taxes include accessory duties or charges to the taxes.[16] Taxes can be referred to as a compulsory, unrequited monetary payments to government units.[17] Hence, the tribunal[18] held that Education Cess is a tax on income and is covered by treaties.

It is not the intention of the treaties to exclude extraordinary taxes, but the countries can restrict treaties to ordinary taxes, to extend it to extraordinary taxes, or even to establish special provisions, if they wish so. Therefore, Contracting States are urged to settle the question.[19] Where they have not done so, the lack of distinction in the wording means that such extraordinary taxes are covered under the model convention.[20]

The covered taxes covers both taxes on total income and taxes imposed on the elements of income[21]. The term 'elements of income' makes clear that taxes applying only to specific types of income are covered by the Convention.[22] Hence a question arises whether the meanings to assigned to terms “income” and “elements of income” should be autonomous or be left to the meaning under domestic laws. A strong argument in favour of an autonomous interpretation is the relationship to article 2(3) of the OECD Model. Since the list of taxes in article 2(3) of the OECD Model refers to the domestic law of the contracting states, a domestic law interpretation for the purpose of article 2(1) and (2) could render these two clauses redundant.[23]

The existence of Article 20 in the model convention shows that income is not confined to the result of legal transactions where a consideration in the form of a payment is made in return for a service rendered. Instead, gratuitous legal acts are also included in the wide understanding of income.[24] Articles 10(2) and 11(2) Model Convention further illustrate that gross receipts can also constitute income.[25] Even any other less sophisticated yardstick qualifies as income for the purposes of Article 2(2) of the MC as long as the aim is to cover income (in the sense of the money value of the net accretion of one's economic power during a certain period of time) or essential elements thereof.[26]

Para 3: The list of taxes mentioned in this para is not exhaustive, it merely illustrates the nature of taxes mentioned in the preceding paragraphs.[27] Countries who wishes to make this as an exhaustive list, choose the option provided in OECD commentary[28] whereby the para 1 and 2 are eliminated and also the words “in particular”[29] of para 3.

Para 3 can have both restrictive and magnifying impact on the preceding paras. For example, If a state choose to opt exhaustive list and exclude a tax which can otherwise be included by virtue of para 1 and 2, in such a case the para 3 restricts the application of para 1 and 2. On the contrary, if a tax is explicitly mentioned in para 3, even though it may not be a covered tax as per para 1 and 2, resulting in magnifying the application of the para 1 and 2.[30]

Para 4: A tax will be covered under the treaty if it is imposed after signing of the agreement if they are identical or substantially similar to existing covered taxes. This avoids the need to renegotiate a treaty whenever one or both parties chose to introduce new taxes. If a tax which by magnifying power, is included in para 3 notwithstanding para 1 and 2, then if a new tax is introduced which is similar to such a tax, then the new tax shall be covered by the treaty notwithstanding the para 1 and 2.[31]

The new taxes that are levied in addition to, or in place of, existing taxes only will be covered under the treaty. The new tax must be at least substantially similar to one or several of the existing taxes listed in Article 2(3) OECD and UN MC. The mere fact that a new tax is meant to replace an existing tax in the sense of Article 2(3) OECD and UN MC is not sufficient per se.[32]

It will be pertinent that we understand how a new tax to be ascertained whether covered under the treaty or not, a relevant extract from commentary by Klaus Vogel is reproduced below:

The question whether the taxes are identical or substantially similar to the existing taxes has to be assessed by comparison to the taxes listed in Article 2(3) OECD and UN MC. There are two equally valid approaches. Under what may be called the micro-approach, identity or similarity is demonstrated with respect to a single tax listed in Article 2(3) OECD and UN MC or even to a component of such a tax. The approach requires a comprehensive comparison of the respective taxes' constituent elements. It has to take into account in particular the tax object and the calculation of the tax base, whereas tax rates and the name of the tax are not decisive. The provision applies irrespective of which State levies the taxes in question. Thus, it is also applicable where one Contracting State introduces a tax similar to a tax listed in Article 2(3) OECD and UN MC levied by the other Contracting State. In contrast, under the macro-approach, a tax is similar not to a single tax, but to a combination of several taxes. Such approach is compatible with the wording of the provision, which requires identity or similarity with respect to the existing taxes and not to an existing tax. The macro-approach requires an overall assessment of the place of the respective tax in the tax system as a whole. The question whether a tax is similar then has to be decided against the background of the entire tax system.[33]

It can be seen that a tax can assessed by both, comparing from a single existing tax or existing tax system, also the rate of tax and name of tax is not important. Even if both contracting states introduce new taxes which are similar to existing taxes, then they shall be covered by the convention, unless it is renegotiated.

India has not expressed any reservations either on the provisions of the article 2 or on the OECD commentary.

Now, we shall discuss the provisions of this article 24 - Non-discrimination in general but more emphasis will be provided on para 6 which reads as follows:

6. The provisions of this Article shall, notwithstanding the provisions of Article 2, apply to taxes of every kind and description.

As per this article, a state cannot discriminate the non-residents in comparison to the residents of the state. The discrimination can be by way of additional tax or additional requirement burden on the non-residents, and this article avoids such discrimination of the non-residents. This means that a tax which is levied only on non-residents violates the non-discrimination article of treaty. The word tax would also include levies which are not called as tax but have characteristics of tax[34].

A question which will become relevant is if a discriminatory tax is not covered under a treaty, then can it be considered that such a discrimination is allowed? Here, the paragraph 6 of the article becomes relevant, which states that provisions of the article 24 is not restricted to taxes covered under this treaty but to all kinds of taxes. Hence it could be said that a tax which is levied on non-residents, even if it is not covered under a treaty can be considered discriminatory.

A next question arise what happens in case this specific paragraph 6 is absent in a particular treaty, in such a case can it be said that in the absence of specific agreement on the paragraph, only the taxes covered under article 2 are subjected to non-discrimination, or can it be said that this provision is only for removal doubts and hence Article 24 includes all taxes and not just taxes covered under Article 2. Opinions seem to be divided in this matter, according to the commentary by Klaus Vogel, absence of this paragraph is express consent on the restriction on the scope of the treaty to taxes covered under article 2 only.[35] On the contrary a Dutch Appeal Court held that even though the treaty did not contain a provision similar to article 24(6) of the OECD Model Convention, the non-discrimination provision prohibited discrimination with respect to “any taxation”. According to the Court, the difference in wording between article 2(1) of the treaty, which referred only to “taxes on income” and the non-discrimination provision, which referred to “any taxation”, could not be a coincidence or a mistake. The Court therefore held that the drafters of the treaty intended for the nondiscrimination provision to cover other taxes, apart from taxes on income. As a result, that provision also applied to the capital duty in the present case.[36] The Advocate General[37] also confirmed with this conclusion and elaborated that as per Vienna convention on interpretation of treaties that a textual and grammatical interpretation should be the first step in the analysis. Hence, on plain reading of other provisions of Article 24, the word “any taxation” would get an ordinary meaning “all taxes” and hence even in absence of 24(6), article 24 would cover all kind of taxes.

Although the Dutch Supreme court[38] overruled this decision stating that taxes according to title and article 2 covers taxes on income, hence the reference to word “any taxation” has to be read in conjunction with these provisions and restrict the provisions of the article of covered taxes and not all kinds of taxes, which is also in conformity with Vienna convention on interpretation of treaties in good faith and giving ordinary meaning to the provisions of the treaties as a whole, rather than considering the provision separately.

About 31 Indian treaties[39] contains a provision similar to Article 24(6) of the OECD conventions. 44 treaties[40] contains a provision, which restricts the scope to taxes covered under Article 2. About 19 treaties[41] does not contain this provision. India have not expressed any reservation on these provisions. Unlike Chile, Greece and the United Kingdom who reserves the right to restrict the application of the Article to the taxes covered by the Convention.[42]

Whether Equalisation Levy a covered tax under Article 2?

It is understood by now that the OECD model treaties perse does not exclude indirect taxes. The term “Tax” is not important as long as the charge has a characteristics of tax, it shall be governed by the treaty. It is also not relevant if the taxes are levied directly or by way of deduction at source. Articles 10(2) and 11(2) Model Convention and Fees for Technical Services (FTS) clauses further illustrate that gross receipts can also constitute income. Also, if the taxes which are already covered in the exhaustive list of para 3, then even if the new tax introduced could not be termed as income tax but if it is similar to existing tax then it shall be governed by the treaty. It is also noted that in order to a new tax to be covered under treaty, The new tax must be at least substantially similar to one or several of the existing taxes.

In case of newly introduced tax, the name and rate of tax is not important, but the mode of calculation and the tax base is important. Also, according to macro approach, the new tax have to be viewed keeping the whole tax system in mind, and not just a single tax. Further, even if both contracting states introduce new taxes which are similar to existing taxes, then they shall be covered by the convention, unless it is renegotiated.

Keeping these foregoing discussions in mind, we shall now analyze whether Equalisation can be treated as covered tax under this Article.

Links of EL to Income tax Act:

1. Introduction of EL 2.0 was made by way of amendment to Finance Bill, hence neither there is memorandum for introduction of this tax, nor this finds mention in the budget speech of the FM. Hence, we will have to rely more on the memorandum[43] for introduction of EL 1.0. In the memorandum it was acknowledged by the Government that due to the advancement of technologies, it was not able to tax the digital businesses, as they did not have permanent establishment in India. Hence, they introduced equalization levy to tax non-residents for certain specified services, who does not have a PE in India. Hence it is an attempt to tax income which is otherwise not taxable as per the current international tax framework.

2. EL shall not be levied if there is a PE, when there is a PE income tax will be charged.

3. The Finance Act of 2021, clarified that wherever income is chargeable to tax under Royalty or Fees for Technical Services (FTS) under income tax Act, then even though they may be chargeable under equalization levy it shall be continued to be taxed under income tax, to this extent it is said that income tax act shall trump EL 2.0.

4. Income subjected to EL shall be exempted under income tax Act.

5. Turnover taxes – EL 1.0 and 2.0 both are on the turnover, but tax on turnover is not new in income tax for example Fees for Technical Services and Royalty are also taxed on turnover without giving additional deduction.

6. Both the income tax and Equalisation Levy are administered by Central Board of Direct Taxes.

7. Words not defined in the equalization levy derives the definition from income tax act.

8. Appeals of equalization levy needs to be done to commissioner of Income tax and Income tax appellate tribunal.

Can EL be an income tax?

Let us evaluate, the transactions that are subjected to Equalization Levy. EL 1.0 taxes specified services like advertisement revenue, EL 2.0 taxes revenue of the e-commerce operator. In purely domestic situation, these transactions are taxable under income tax Act. Further, barring the requirement of PE, these transactions are subjected to income tax act even for non residents. Only reason why these transactions were not been subjected to income tax is the absence of the PE. EL tries to tax exactly what the income tax is not able to tax because of the protection under the treaty.  So, it does seem like EL is an attempt to override treaties.

It can be seen that there is an exemption provided[44] under income tax act for transactions which are subjected to EL. Even the memorandum to Finance Bill, 2016 acknowledges that there could be double taxation with introduction of EL and hence an exemption is provided in income tax for the transaction that are subjected to EL, which otherwise could be taxable in the income tax Act.

Hence it could be seen that the only de-link between EL and income tax is the PE. Income tax needs PE to tax an income and EL does exact opposite i.e. taxes where PE is absent. Otherwise both achieve same results. Income tax rate is higher as it taxes net income, whereas the rates of EL are relatively lower as the tax base is gross revenue without deduction of expense.

Also, if an argument is made that EL is an indirect tax and not subjected to treaty, we already have GST law which taxes this transaction under reverse charge, another indirect tax on the same transaction would not be warranted. We also have Customs act, a possible solution could have been to add this in the customs law. Other European Countries are implementing Digital Services Tax, similar to our EL, the reason for those countries to implement this tax would be they generally do not have customs, also OECD model treaties does not have taxing rights in source country (unlike royalty, FTS in India). Also they do not have FTS in their treaties which makes their domestic and international tax system different than us, we already tax services under FTS and the tax base of EL is predominantly services.  

Based on the foregoing discussions it be can be said that, the resemblance between EL and income tax act is uncanny. Hence making it a possibility to argue that EL could be treated as other similar taxes and be covered under the treaty.

Whether the EL is discriminatory, in terms of Article 24?

According to article 24, the discrimination can be by way of additional tax or additional requirement burden on the residents, a tax which is levied only on non-residents violates the non-discrimination article of treaty. Also, several of Indian treaties contains provision similar to Article 24(6) of OECD model, which suggests that the non-discrimination shall be avoided even outside income taxes. 

As per the provisions of the EL is applicable only on the non-residents, by way of withholding in EL 1.0 and direct levy in EL 2.0, hence, it is discriminatory towards the non-residents. This was even picked up by US in its report[45] on the 301 investigation, where the concluded that the EL 2.0[46] is discriminatory towards US companies[47] and this tax is against the international taxation principles[48]. In the report they relied on the statement by an Indian Government Official, wherein it is quoted – the very “purpose” of the DST is to tax foreign companies only, explaining that “[a]ll parts of the digital taxation incident should be on the foreign player, because if the incidence is passed on to the Indian player, then it doesn’t really serve the purpose.”[49]However, Indian treaty with USA the provision similar to Article 24(6) is absent, so if it were to be concluded that EL is not a covered tax, then provisions of Article 24(6) of OECD model unlikely to be applied here.

Based on the provisions of the article 24(6) at least it looks like the EL is discriminatory in terms of the treaties, where this provision is present in the treaties signed by India. If it were to be concluded that this tax is discriminatory and non-applicable for the treaties which has this provision, then it will create situation where the taxes may be covered for some nations only and not for others, this may create some kind of conflict in the international trade relations.

Conclusion:

As it is seen that the whole purpose of the EL is to tax the No PE, which otherwise is not taxable under income tax treaty. A new tax which serves the same purpose as an old tax, should ideally be covered under Article 2. It is also seen in the recent Supreme Court Decision that the OECD Commentary have a significant persuasive value[50] and the treaties have to be interpreted accordingly. Also, given that India  has not expressed reservations on either Article 2 or Article 24(6), it shall follow the principle of the OCED treaties to the extent it is consistent with the treaties entered into. India’s response[51] to Section 301 Investigation of USA, confirms that the EL is brought in place to neutralize the taxation of residents and non-residents, this statement hints that EL is akin to income tax. Introduction of proposed Article 12B (similar to the EL) in the UN model and its commentary suggest that the treaties currently do not tax these specified services in absence of PE and hence the necessity of the new article has arisen.[52] Hence it could be said that the EL which is similar to the new Article 12B, unless introduced in treaty shall remain to be taxed in traditional way i.e. cannot be taxed without a PE.

However, in addition to the Government’s position that the EL is not a tax covered under a treaty, and it has been noted that the OECD has itself considered the Indian equalization levy and has not taken the position that it is a treaty covered tax.[53] Also, it is seen that the tax is discriminatory to non-residents, hence, in view of the provisions of relevant treaty provisions this could violate the treaties. Further, it is seen that US has concluded that this tax is discriminatory and have determined to charge tariffs on the imports from India as a retaliation. But as the tax itself is suggested by the OECD and OECD considering this as a tax not covered by treaty,[54] also in view of several other countries introducing similar taxes, it may be concluded as well that this tax is according to international tax principles.

We already have a wider definition of business connection, with introduction to Dependent Agent PE, and Significant Economic Presence in the income tax Act. We also have the Equalisation Levy, it seem like Indian administration is not leaving no stone unturned in the attempt to tax the Digital Business. Given that this tax is introduced to circumvent treaty protection, tax payers are likely to challenge this in the appeal forums, it will be interesting to see the outcome of the decisions.

 

[1] See, “Amazon, Google and Starbucks accused of diverting UK profits”, The Guardian (available at https://www.theguardian.com/business/2012/nov/12/amazon-google-starbucks-diverting-uk-profits (accessed 06 Mar 2020); “Starbucks, Google and Amazon grilled over tax avoidance”, BBC News, available at https://www.bbc.com/news/business-20288077 (accessed 06 Mar 2021).

[2] See, “What is BEPS?”, OECD (available at https://www.oecd.org/tax/beps/about/) (accessed 06 Mar 2021)

[3] Indian treaties with Australia, USA, UK

[4] Para 6.1 OECD commentary

[5] India – Greece Treaty

[6] Para. 2 OECD Model: Commentary on Article 2 (2017).

[7] Para. 1 OECD Model: Commentary on Article 2 (2017).

[8] Para - 1.1.2.2, W. Cui, Article 2 – Taxes Covered – Global Tax Treaty Commentaries, Global Topics IBFD (accessed 5 March 2021).

[9] Para - 1.1.2.2, W. Cui,

[10] Para. 2 OECD Model: Commentary on Article 2 (2017).

[11] Para - 2.2.1, W. Cui,

[12] Discussion will be restricted to only taxes on income as most of the Indian treaties does not deal with income on capital.

[13] Para 9 - Roland Ismer/Alexander Blank, Article 2 - Taxes Covered, Klaus Vogel on Double Taxation Conventions, Fourth Edition, Wolters Kluwer.

[14] Para 19 - lsmer/A. Blank, Klaus Vogel

[15] Indian treaties with Australia, USA, UK

[16] Para. 4 OECD Model: Commentary on Article 2 (2017)

[17] Para 26 - lsmer/A. Blank, Klaus Vogel

[18] ITAT Kolkata of 20 June 2012, ITA No. 1458/Kol/2011.

[19] Para. 5 OECD Model: Commentary on Article 2 (2017)

[20] Para 28 - lsmer/A. Blank, Klaus Vogel

[21] Para. 3 OECD Model: Commentary on Article 2 (2017)

[22] Para 28 - lsmer/A. Blank, Klaus Vogel

[23] Page 189, Pasquale Pistone and Andreas Ullmann, Digital Taxes and Article 2 OECD Model Convention 2017, Taxes Covered under Article 2 of the OECD Model, IBFD.

[24] Para 36 - lsmer/A. Blank, Klaus Vogel

[25] Para 36 - lsmer/A. Blank, Klaus Vogel

[26] Para 36 - lsmer/A. Blank, Klaus Vogel

[27] Para. 6 OECD Model: Commentary on Article 2 (2017)

[28] Para. 6.1 OECD Model: Commentary on Article 2 (2017)

[29] Para 53 - lsmer/A. Blank, Klaus Vogel

[30] Para 55 - lsmer/A. Blank, Klaus Vogel

[31] Para 60 - lsmer/A. Blank, Klaus Vogel

[32] Para 62 - lsmer/A. Blank, Klaus Vogel

[33] Para 64 - lsmer/A. Blank, Klaus Vogel

[34] Page 285, Alexander Rust, Gabriela Capristano and Xiangdan Luo, Tax Treaty Application beyond the Scope of

Article 2 OECD Model Convention 1982 and 2017 (Mutual Agreement, Non-Discrimination, Mutual Assistance), Taxes Covered under Article 2 of the OECD Model, IBFD.

[35] Para 127 - Alexander Rust, Article 24 - Non-discrimination, Klaus Vogel on Double Taxation Conventions, Fourth Edition, Wolters Kluwer.

[36] Para - 10.2, N. Bammens, Chapter 10: Article 24(6): Taxes Covered in The Principle of Non-Discrimination in International and European Tax Law (IBFD 2012), Books IBFD,

[37] Opinion of the AG Wattel in ECLI: NL: HR: 2000: AA7995, (In Dutch, translated using Google Translator) please visit: http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:PHR:2000:AA7995 (Last accessed on 19-Apr-2021)

[38] ECLI: NL: HR: 2000: AA7995, (In Dutch, translated using Google Translator) Please visit http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:HR:2000:AA7995 (Last accessed on 19-Apr-2021)

[39] For example, Australia, Mexico, Norway, Sweden.

[40] For example, Canada, China, Italy, Singapore, Russia, UK.

[41] For example, France, Germany, Hong Kong, USA.

[42] Reservations to Paragraph 6 of OECD Model Convention, 2017

[43] Memorandum to Finance Bill, 2016 on Equalisation Levy

[44] Section 10(50), of the income tax act, 1961

[45] Section 301 Investigation, Report on India’s Digital Services Tax dated Jan 6, 2021. Please visit:(https://ustr.gov/sites/default/files/enforcement/301Investigations/Report%20on%20India%E2%80%99s%20Digital%20Services%20Tax.pdf) 

last accessed on 24-Apr-2021

[46] EL 1.0 is not part of the part of the investigation. (Para 2, page 7, Section 301 Investigation, Report on India’s Digital Services Tax dated Jan 6, 2021)

[47] Page 3, Section 301 Investigation, Report on India’s Digital Services Tax dated Jan 6, 2021.

[48] Page 4, Section 301 Investigation, Report on India’s Digital Services Tax dated Jan 6, 2021

[49] Page 3 and 14, Section 301 Investigation, Report on India’s Digital Services Tax dated Jan 6, 2021.

[50] Para 158, Supreme Court of India, Civil Appeals Nos. 8733-8734 of 2018

[51] Para 7, Response from The Government Of India to the request for Public Comments from the USTR in the matter of Initiation of investigation of Digital Services Taxes Under Section 301 Of The U.S. Trade Act

[52] Para 1, proposed draft commentary on Article 12B of the UN Model

[53] Para – 3.1.3, W. Cui,

[54] Para – 3.1.3, W. Cui,

 

The views of the author are personal