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Mexico: Recent Developments

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Mexico: Recent Developments

The Mexican government adopted its 2022 budget in late October 2021. Several provisions place special emphasis on plugging gaps in tax compliance. More power has been given to the Mexican tax administration when conducting tax examinations. Taxpayers under tax examinations face serious penalties where noncompliance is found to exist, including potential application of the domain extinction law, a forfeiture provision that applies ordinarily in serious criminal investigations. G.A.A.R. has been introduced, tax reporting obligations have been imposed on advisers reflecting policies behind D.A.C.6 in the E.U., and a new regime to disregard foreign entities and arrangements without legal personality have been adopted. Alil Álvarez Alcalá, the founding partner of Álvarez Alcalá, in Mexico City dives into these and other new regimes.

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Israel Tax Authority Proposes Changes for Individuals With Cross-border Connections

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Israel Tax Authority Proposes Changes for Individuals With Cross-border Connections

In an age of spectacular liquidity events for Israeli start-up companies, the Israel Tax Authority has proposed significant revisions to the tax law designed to bring more income and gains into the Israeli tax net. In part, this reflects a global trend among governments and to close a perceived tax gap among the wealthy, especially those having one foot at home and a second foot abroad. In Israel, the proposals directed at individuals include (i) adoption of objective rules for determining tax residence with greater certainty, (ii) tightening of exit tax rules to ensure collection of deferred amounts, (iii) expansion of C.F.C. rules to cover more foreign companies, (iv) elimination of foreign tax credit carryovers for unused foreign tax credits, and (v) changes to basis step-up rules for property inherited from foreign decedents. Daniel Paserman, a partner in the Tel Aviv office of Gornitzky, attorneys, and the head of the firm’s tax practice, and Inbar Barak-Bilu, a partner in the Tel Aviv Office of Gornitzky, attorneys, caution that the proposals are groundbreaking and are likely to have an influence on persons considering a move to or from Israel.

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The "Value Creation" Question has Escaped the New Pillar 1 Mousetrap

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The "Value Creation" Question has Escaped the New Pillar 1 Mousetrap

In every decade, a phrase or a term pops up that is widely used, although its meaning may vary from person to person. Examples in past decades include “groovy,” “viral,” “neat,” and “heavy.” In his article, Michael Peggs identifies “value creation” as a phrase that has gone “viral” among the O.E.C.D., the G-20, and tax authorities. The “neat” aspect is that, over the centuries, the term has meant different things to different commentators. Nonetheless, it remains the central foundational feature of controlling policy for global policy wonks. It could mean that while everyone appears to be marching in unison, they are really marching in different directions, much to the chagrin of multinational enterprises. “Heavy!”

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Rescission – Undoing a Transaction That Seemed Like a Good Idea at the Time

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Rescission – Undoing a Transaction That Seemed Like a Good Idea at the Time

How many times have we watched a movie, read a book, or listened to a colleague talk about an action that appeared to be a no-risk proposition, only to turn into a nightmare? At some point, the general lament is uttered: “It seemed like a good idea at the time, but . . .” Tax plans can be like that, too. A company identifies an acquisition target, proposes a merger with a supplier, or considers an internal restructure. Teams of lawyers, accountants, and operations personnel perform appropriate due diligence. The deal closes. At some point, blemishes, problems, errors float to the surface. The same lament is uttered: “It seemed like a good idea at the time, but . . .” While the laments are the same, the suffering for a tax planning mistake need not linger forever. If the parties to a transaction act quickly, the doctrine of rescission may apply, allowing the parties to treat the event as if it never occurred. Stanley C. Ruchelman and Neha Rastogi explain the early cases and discuss a published ruling and several private letter rulings in which the principal concern of the I.R.S. is that the transaction and its rescission occur in the same taxable year.

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Trusts Under Attack – The Legislative Landscape

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Trusts Under Attack – The Legislative Landscape

Bad ideas travel globally, especially if the source of information is a progressive crusader. Reducing perceived wealth disparity in the U.S. has become a major political goal of the Biden Administration and the Democratic Party. That goal, together with the goal of increased transparency concerning ownership, have resulted in a number of legislative proposals, which, if enacted will fundamentally alter tax planning regimes for the wealthy. In her article, Nina Krauthamer explores some of these recommendations and their effect.

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Toulouse or Not Toulouse? N.I.I.T.-Picking the Reach of the U.S. Foreign Tax Credit

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Toulouse or Not Toulouse? N.I.I.T.-Picking the Reach of the U.S. Foreign Tax Credit

When is a tax that is based on income not an income tax? When are treaty provisions that provide for relief from double taxation properly ignored? The answer in the U.S. is when the tax is the Net Investment Income Tax, generally referred to as N.I.I.T. In the Toulouse case, the U.S. Tax Court refused to allow a U.S. citizen resident abroad to claim a foreign tax credit when it came to the N.I.I.T. In addition to the technical issue, the case is interesting because it illustrates the choice of procedures to be followed when challenging an I.R.S. increase in tax for reasons unrelated to the computation of income or the availability of a credit. One is the Collection Appeals Program (“C.A.P.”) and the other is the Collection Due Process program (“C.D.P.”). Here, the taxpayer chose the C.D.P., as it allowed the taxpayer an opportunity to challenge an adverse position of the I.R.S. by filing a petition in the U.S. Tax Court. Andreas Apostolides and Wooyoung Lee explain the rationale of the court in denying double tax relief. In particular, it points out that taxpayers who seek treaty relief in matters other than withholding tax rates do so at their peril.

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How New York Courts Provide Broad Support to Parties Engaged in International Arbitration and Litigation

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How New York Courts Provide Broad Support to Parties Engaged in International Arbitration and Litigation

Why is an international tax journal addressing the broad scope of remedies available to parties in foreign litigation or arbitration? The reason is simple. Clients enter transactions, transactions blow-up, and parties sue or can be sued. Even if the parties, the contract, or the dispute at issue have little or no connection to New York, potential documents, assets, or witnesses may be located within the State. If so, New York courts can provide tools (i) to obtain broad information vital to a pending foreign proceeding, (ii) to attach assets to secure an ultimate recovery or incentivize settlement, or (iii) to enforce final judgments or awards, including seizure of assets and other post-judgment remedies. These are important tools to a litigator. Dan J. Schulman, a commercial litigator based in New York, explains all. He has over 35 years of experience managing complex commercial litigations, arbitrations, and appeals in New York, and shares the tools that are available to parties in a litigation.

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Five Reasons Why the Legal Professional Privilege of Belgian Lawyers is Incompatible With the Mandatory Reporting Under D.A.C.6

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Five Reasons Why the Legal Professional Privilege of Belgian Lawyers is Incompatible With the Mandatory Reporting Under D.A.C.6

D.A.C.6 in the E.U. requires Member States to impose a disclosure obligation on intermediaries who advise on, or are involved in, implementing aggressive cross-border arrangements. This poses a conundrum for tax lawyers involved in a transaction because, whatever they do, rights of taxpayers and duties of attorneys to maintain client confidences may be ignored, or significantly cut back. In Belgium, the approach is to ignore Belgian case law that recognizes the obligations of lawyers to keep confidences and forces attorneys to violate various obligations to clients. Not surprisingly, the Belgian Bar Councils and the Belgian Association of Tax Lawyers have challenged the restrictive interpretation of the L.P.P. before national and European courts. Werner Heyvaert, a partner at the Brussels office of AKD Benelux Lawyers, and Vicky Sheikh Mohammad, an associate at the Brussels Office of AKD Benelux Lawyers, explain the five reasons why Belgian implementation of D.A.C.6 is flawed. The case is currently under consideration by the C.J.E.U.

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The Importance of Earnestly Modeling Earnouts: Pitfalls and Planning Relating to the Purchase of a Service Business

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The Importance of Earnestly Modeling Earnouts: Pitfalls and Planning Relating to the Purchase of a Service Business

In representing a taxpayer interested in purchasing a business, it is important for tax counsel to understand, in simple terms, what each party is seeking to accomplish. The tax adviser’s greatest contribution is often simply asking the right questions and then taking the time to think through the structure from different angles in a manner that helps the client reach a decision. In a light-hearted approach to the subject, Andreas Apostolides takes the reader through the various alternatives available in negotiating the purchase and sale of a service business conducted through a tax-transparent entity such as an L.L.C. Some alternatives may work; others may not.

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The Cameco and Glencore Transfer Pricing Cases – Comments on the Common Complications in Commodities Commerce Controversy

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The Cameco and Glencore Transfer Pricing Cases – Comments on the Common Complications in Commodities Commerce Controversy

Two transfer pricing cases, Commissioner of Taxation of the Commonwealth of Australia v Glencore Investment Pty Ltd. in Australia and Cameco Corporation v. Her Majesty The Queen in Canada, address arm’s length transfer pricing methodology for mined minerals during a period of steep increases in spot prices. In each case, the revenue authority challenged the taxpayer’s revision of pricing from the use of fixed prices to adjusted prices that were comparable in methodology to contemporaneous uncontrolled transactions. Each case was decided in favor of the taxpayer. Michael Peggs explains the reasons why the approaches of the tax authorities were rejected. He cautions that the precedential value of the cases may be limited in light of changes made in the 2017 version of the O.E.C.D. Guidelines. One ongoing takeaway from the two cases is that, to settle a transfer pricing dispute, a large multinational company must be prepared to make significant investments in data gathering, executive, time, and cost of litigation.

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Domestic Trust – Does Yours Satisfy the Court Test?

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Domestic Trust – Does Yours Satisfy the Court Test?

In comparison to tax laws in many countries, where the tax residence of a trust may depend on the residence of the trustee or the relevant law for the trust, U.S. tax law provides that the residence of a trust is dependent on two factors. All trusts no matter where formed are considered to be foreign trusts unless two tests are met, causing the trust to be considered a domestic trust. The first is a court test, under which a U.S. court is able to exercise primary supervision over trust administration. The second is a control test, under which U.S. persons control all substantial trust decisions. Nina Krauthamer and Galia Antebi point out that while the tax law is clear, applicable trust law – not tax law – may contain hidden risk regarding the court test. Comments to Section 108 of the Uniform Probate Code and Uniform Trust Code provide that the identification of a trust’s principal place of administration will ordinarily determine which the court that has primary jurisdiction over the trust. Advisers representing foreign families should be mindful because facts change and unknown facts may exist. Officers of a privately held trust company may live and carry out their duties outside the U.S. or an individual trustee may move outside the U.S. Where either fact exists, a U.S. domestic trust may find that it has become a U.S. foreign trust. The result may not be pretty.

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Taxation of Foreign Pensions in Ireland – Walking the Tricky Tightrope

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Taxation of Foreign Pensions in Ireland – Walking the Tricky Tightrope

As more individuals relocate to Ireland, the taxation of assets brought with them takes on importance once Irish tax residence is established. Of special concern are pension products that individuals accumulate while living and working outside of Ireland. The taxation of lump sum payments from foreign pensions is a complex affair. Under Irish law, most foreign pensions schemes are considered nonqualifying overseas pension plans. Consequently, lump sum payments from such pension plans should not be taxable in Ireland because no domestic legislation exists to tax lump sums. Lisa Cantillon, a Director in the Dublin office of KTA, explains all, but cautions that the Irish Revenue have a different view, notwithstanding the absence of statutory support.

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Planning for Nonresident Investment in French Real Estate – The Choice of Company Matters

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Planning for Nonresident Investment in French Real Estate – The Choice of Company Matters

Among wealthy Europeans, it is common for those who are not French to own a secondary residence in France, and to do so through a company. Two recurring questions are posed to a French tax adviser representing a non-French client. Should the company be French or foreign? Should the company be subject to corporate tax or not? Sophie Borenstein, a Partner in the Paris office of Klein Wenner explains the variables that must be considered when providing answers. Some work in one set of circumstances and others work in other circumstances. Good advice must be tailored to the anticipated use of the property.

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Swiss Update on Trust Regulation and Taxation

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Swiss Update on Trust Regulation and Taxation

Trusts have been of great importance to advisors all over the world. Even though trusts are mostly found in common law systems, several civil law jurisdictions have implemented the concept of trusts. To date, there is no such thing as a Swiss trust or Swiss trust law. However, Switzerland recognizes the concept of a trust. In their article, Peter von Burg, a partner at Burckhardt Ltd. in Zürich, and Matthias Gartenmann, a Swiss tax lawyer based in Zürich, provide an overview of taxation of trusts in Switzerland. One interesting aspect addressed in the article relates to Swiss administrative assistance in tax matters when the targets of the inquiry are a trust and its beneficiaries.

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Taxation in India and the U.S.: Stages in the Life of a U.S. Owned Indian Company

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Taxation in India and the U.S.: Stages in the Life of a U.S. Owned Indian Company

When a U.S. corporation expands its operations to India and forms an Indian subsidiary, tax issues need to be addressed in both countries at various points in time – when the investment is first made, as profits are generated, as funds are repatriated, and when the investment is sold. In their comprehensive article, Sanjay Sanghvi, a partner of Khaitan & Co., Mumbai, Raghav Jumar Baja, a principal associate of Khaitan & Co., Mumbai, Stanley C. Ruchelman and Neha Rastogi explain all facets of tax planning in both countries at each stage of the investment and do so in an integrated way.

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Clarity on Recharacterization of Carried Interests

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Clarity on Recharacterization of Carried Interests

· Earlier this year, the I.R.S. issued final regulations providing guidance on Code §1061, which recharacterizes certain long-term capital gains as short-term gains for holders of partnership interests entitled to carried interests. The provision impacts fund managers of alternative investments, such as private equity and hedge funds, who receive carried interests. When gains are derived through a carried interest, they are treated as long-term capital gains only when the carried interest is held for 36 months and one day, significantly longer than the 12 months and one day ordinarily required. In her article written while an extern at Ruchelman P.L.L.C., Susan F. Robinson explains how the final regulations address two workarounds that were widely proposed to circumvent the lengthened holding period and cautions that the policy debate on carried interests may not be over.

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Final Regulations for Withholding on Foreign Partners’ Transfers of Specified Partnership Interests – Construct, Exceptions, and Reporting

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Final Regulations for Withholding on Foreign Partners’ Transfers of Specified Partnership Interests – Construct, Exceptions, and Reporting

For U.S. tax purposes, gain or loss upon a sale or exchange of property is generally sourced based on the tax home of the seller. For a foreign person investing in a partnership conducting a U.S. trade or business, the source rules change. A foreign partner that sells an investment in a U.S. partnership operating in the U.S. will be subject to tax on the portion of the gain deemed to be effectively connected with a U.S. trade or business. This change stems from Code §864(c)(4), which recharacterizes a sale of a partnership interest as an indirect sale of partnership assets, resulting in gain to the selling foreign partner. Under Code §1446(f), withholding tax of 10% applies to the seller’s amount realized. Andreas A. Apostolides and Nina Krauthamer take a deep dive in the I.R.S. regulations issued in late 2020. A must read for advisers to foreign partners in partnerships with U.S. fixed offices and U.S. trades or businesses.

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Beauty is in the Eye of the Taxpayer

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Beauty is in the Eye of the Taxpayer

As a counterpoint to the view in Europe regarding tax competition, the view in the U.S. is that tax competition is an acceptable policy to influence a multinational corporation to locate operations in a particular State. In his article written while an extern at Ruchelman P.L.L.C., Corey L. Gibbs looks at policies adopted by the State of Alabama pointing out that U.S. citizens and residents are “voting with their feet,” when relocating to States that impose lower taxes. In Europe, there may be a duty to pay tax, in the U.S. there is a right to carry on one’s affairs in a way that results in the lowest tax possible.

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The 15 Most Important Questions That Should Be Asked When Estate Planning for a Foreign Parent with U.S. Children

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The 15 Most Important Questions That Should Be Asked When Estate Planning for a Foreign Parent with U.S. Children

· U.S. estate tax planning is said to be among the most complicated aspect of tax planning because of the numerous moving parts and the changing needs and objectives of the family. The exercise becomes complicated when the client is not a U.S. person, but the heirs live in the U.S. and have started families in the U.S. For an estate planner with a focus on domestic clients, the customary tools may not work. It is easy to know what you know, but not always easy to know what you don’t know. Neha Rastogi and Stanley C. Ruchelman ask and answer 15 questions that highlight the favorable and unfavorable provisions of U.S. tax law affecting nonresident, non-citizen individuals having U.S. persons as heirs.

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Tax Competition Between Member States of the European Union – An Academic View

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Tax Competition Between Member States of the European Union – An Academic View

In May, the European Commission lost its second case in the E.U. General Court when Amazon’s tax arrangement in Luxembourg was found to be onside as to rules prohibiting illegal state aid among Member States. A companion case was issued the same day in which the penalty asserted by the European Commission was upheld. These cases bring the Commission’s record before the Court to two wins and three losses, with three cases in progress. For those readers asking why Commissioner Vestager continues to bring these cases, the answer is explained by Professor Pietro Boria, of Sapienza University of Rome. A new electorate has arisen in Europe that is multinational in its scope and led by a governing body answerable to all Member States. Parochial interests that existed through the end of the 20th Century no longer control. Tax policy is no longer the realm of national governments.

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