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Number 3 - 2015 contains the following:
ARTICLES
Australia
Casenote – Information-Gathering Powers of the Commissioner
Anton Joseph
This article takes a look at the recent litigation surrounding the Australian case of Hua Wang Bank Berhad. This interesting and highly relevant case dealt with the residency of five foreign entities which were trading in shares on the Australian Stock Exchange and also considered the legality of the Commissioner of the Australian Tax Office in obtaining and using information from foreign sources.
Hong Kong
The Source of Dividends in Hong Kong Tax Law
Stefano Mariani
In Hong Kong, dividends received from a company which was chargeable to profits tax are exempt under section 26 of the Inland Revenue Ordinance. As such, in the absence of specific legislation that states otherwise, it follows that non-qualifying dividends would be taxable in Hong Kong if they were sourced in Hong Kong. During the recent Annual Meeting of the Hong Kong Inland Revenue Department (IRD) and the Hong Kong Institute of Certified Public Accountants, the IRD was asked to clarify the general source rule for these dividends which are paid out by companies that were not subject to profits tax in Hong Kong. This article will consider the Hong Kong Inland Revenue Department’s position on the treatment of such dividends and offer a critical analysis and response to the same.
India
Bandwidth Capacity – Taxability and Controversy
Kamesh Susarla and Praveen Natarajan
With the advent of globalization, transfer of data has become one of the most crucial factors in the successful running of governments and companies alike. With the increasing need for transfer of data, telecommunications operators across the globe are under acute pressure to provide high speed secure data flow with minimal interruptions. The capacity of a device to transmit data, including the speed of such transmissions, is technically understood as “bandwidth”. The taxability of payments made for the transfer or use of bandwidth capacity has been the subject of debate in a series of income tax disputes in India.
INDIAN CASE LAW MONITOR
Taxation of Shipping Income under Tax Treaties – Development of Case Law in India
Dr Amar Mehta
About 90% of India’s sea-bound cargo is handled by foreign carriers. Hence, shipping income provisions under various Indian tax treaties have gained significant importance in recent years and India is one of the few jurisdictions with a substantial number of court decisions on the subject matter. Article 8 of the OECD MC attributes the exclusive right to tax shipping profits to the state in which the effective management of the enterprise is situated. Article 8 of the UN MC leaves the matter open. Some important Indian tax treaties deviate from the OECD MC and permit India (as a source state) to tax to a certain extent a foreign shipping enterprise’s income from operation of ships in international traffic. The most prominent decisions of the Indian Income Tax Appellate Tribunal (ITAT) dealing with interpretation shipping provisions in various Indian tax treaties are discussed in this article.
TRANSFER PRICING
India
Intra-Group Share Issuance – Out of the Realm of Transfer Pricing
Vishal Kalra and Khyati Dadhwal (reviewed by Mukesh Butani)
The authors discuss the recent Vodafone and Shell cases and the significance of these two transfer pricing cases for India’s taxpayers, government and investment climate.
INTERNATIONAL PERSPECTIVE ON ASIA-PACIFIC TAXATION AND INVESTMENT