U.S. Income Tax Treaties — The Limitation on Benefits Article discusses in detail the limitation on benefits (LOB) article of U.S. income tax treaties. Written by Howard J. Levine, Esq. and Michael J. Miller, Esq., both of the law firm Roberts & Holland LLP, this Portfolio takes an in-depth look at
The United States is a party to numerous income tax treaties with foreign countries. In order to enjoy the benefits of a U.S. income tax treaty, a person must satisfy a number of requirements, including residence in one of the treaty countries.
Residence alone, however, is not sufficient. The United States is very concerned about “treaty shopping,” and thus most U.S. income tax treaties, including all modern U.S. income tax treaties, include some form of the “LOB” article. The purpose of the LOB article is to determine whether a resident of a treaty country has a sufficient connection with that country to justify entitlement to treaty benefits.
U.S. Income Tax Treaties — The Limitation on Benefits Article allows you to benefit from:
This Portfolio is part of the Foreign Income Portfolios Library, a comprehensive series containing more than 90 Portfolios, which covers critical transactions and issues in international taxation. This highly-regarded resource service offers commentary on a wide range of foreign income topics including: Foreign Tax Credit, Business Operations in more than 40 foreign countries, Branch ProfitsTax, Source of Income Rules, Subpart F (Controlled Foreign Corporations), Foreign Partnerships and Partners, Transfer Pricing, and more.
Detailed Analysis
I. Introduction
II. The LOB Article in the 2006 U.S. Model Treaty
A. Introduction
B. The General Rule
C. Persons Entitled to All Benefits of the Treaty
1. Individuals
2. Qualified Governmental Entities
3. Publicly Traded Companies and Certain Subsidiaries
a. Publicly Traded Companies
b. Public Company Subsidiaries
4. Tax-Exempt Organizations and Pension Funds
5. Entities Satisfying Ownership and Base Erosion Tests
D. Active Business Test
1. Active Conduct of a Trade or Business Requirement
2. "Derived in Connection with" or "Incidental to" Requirement
a. "Derived in Connection with" Test
(1) "Forms a Part of" or "Complementary to" Test
(2) Royalties, Dividends, and Interest
b. The "Incidental to" Test
3. Substantiality Requirement
4. Examples
E. Discretion Granted Competent Authority
III. Avoiding Disqualification Under an LOB Article
Introductory Material
A. Publicly Traded Companies
1. Corporate Inversions
2. Differences in Requirements
3. Base Erosion
4. Disproportionate Class of Shares
B. Qualified Subsidiary of a Public Company
1. Introduction
2. Indirect Ownership
3. 1996 U.S.-Luxembourg Tax Treaty
4. Use of Dutch Treaty Subsidiary Exemption - Dutch Licensing Company - to Avoid Secondary Withholding Tax on Royalties
C. Joint Ownership Between U.S. and/or Contracting State Residents
1. In General
2. 50% Ownership by Non-Qualified Residents Permitted
3. 49% Ownership by Non-Qualified Residents Permitted
D. Derivative Benefits Provision
2. Ownership by Shareholders Entitled to Equivalent or More Favorable Treaty Benefits
3. Ownership by Residents of a Contracting State
4. Comprehensive Income Tax Convention
5. Equivalent or More Favorable Treaty Benefits
6. Examples
E. Headquarters Company Provision
F. Active Business Test
G. Investment Entities
H. Exempt Organizations
I. Competent Authority Relief
J. Continued Use of Treaties Without LOB Articles
IV. Limitations Outside of a Treaty
A. Case Law
1. Aiken
2. NIPSCO
3. Del Commercial
a. Background of the Case
b. The Court of Appeals' Analysis
c. Comments on the Court's Analysis
B. Section 7701(l) and the Anti-Conduit Regulations
C. Section 894(c) and the Regulations Thereunder
D. Section 884(e): Qualified Resident Requirement
V. History of the LOB Article in U.S. Income Tax Treaties
A. "Arranged or Maintained" Test
B. Holding Companies
C. Retreat - 1962-1969
D. Trinidad and Tobago and Finland - 1970
E. Japan - 1971
F. United Kingdom - 1975
G. 1977 U.S. Model Treaty
H. French Protocol - 1978
1. Three New Concepts
2. Excise Tax on Insurance Premiums
3. Income from International Shipping and Air Transport
I. Hungary - 1979
J. Cyprus and Jamaica - 1980
1. 1980 Proposed U.S.-Cyprus Tax Treaty
a. Non-Corporate Persons Covered
b. New Public Company Test
2. 1984 U.S.-Cyprus Treaty
3. 1980 U.S.-Jamaica Tax Treaty
a. Ownership and Base Erosion Test
b. Public Company Test
c. Principal Purpose Test
(1) Incidental Income Safe Harbor
(2) Derivative Benefits Safe Harbor
K. Two Proposed Model LOB Articles - 1981
L. Australia and New Zealand Tax Treaties - 1982
1. Ownership Test
2. Public Company Test
3. Principal Purpose Test
4. Income Derived by a Trustee
M. Denmark and France - 1983-1984
N. Italy Protocol - 1984
4. No Base Erosion Test
O. Inconsistencies in the 1980s - Treaties with Tunisia and China
P. Germany - 1989
1. Automatic Qualification
2. Active Business Connection Test
a. Connection
(1) Downstream Connection
(2) Product Line
(3) Short-Term Investment of Working Capital
b. Substantiality
3. Discretionary Qualification
4. Derivative Benefits
Q. Finland, Spain, and Russia - 1989-1992
R. Barbados - 1991
S. Mexico - 1992
1. Public Company Tests
2. Ownership and Base Erosion Test
3. Derivative Benefits
a. NAFTA-Specific Ownership Requirements
(1) Ownership by U.S. or Mexican Residents - More Than 30%
(2) Ownership by NAFTA State Residents - More Than 60%
b. NAFTA-Specific Base Erosion Requirements
(1) Less Than 70% Gross Income Paid to non-Qualifying Owners
(2) Less Than 40% Gross Income Paid to Persons Non-Qualifying Owners and Non-NAFTA State Residents
T. The Netherlands - 1992: New Level of Complexity
a. Publicly Traded Company
b. Subsidiary of Publicly Traded Company
c. Conduit Company
3. Active Business Test
a. Active Trade or Business and Attribution Rules
b. "In Connection With" and Substantiality
(1) "In Connection With"
(2) Substantiality
c. "Incidental To"
4. Headquarters Companies - Seven Requirements
5. Derivative Benefits
6. 1993 Protocol: Triangular Cases
U. Czech Republic, Slovak Republic, and Kazakhstan - 1993-1994
V. France - 1994
W. Canada - 1995
X. Luxembourg - 1996: Expanded Derivative Benefits for EU and NAFTA Residents
1. Scope of Derivative Benefits Provision
2. Requirements of Derivative Benefits Provision
a. The Three Requirements
b. The Ownership Requirement
c. The Base Erosion Requirement
d. The Withholding Rate Requirement
3. Headquarters Companies
4. Other Provisions
a. Subsidiaries of Publicly Traded Companies
b. Triangular Arrangements
c. Tracking Stock
Y. Austria, Turkey, Thailand - 1996
Z. Switzerland - 1996: The Predominant Interest Test
1. The Predominant Interest Test
2. Other Provisions
a. Derivative Benefits
c. Headquarters Companies
3. Subsidiary of Public Company
4. Discretionary Safe Harbor
AA. The Baltics, Slovenia, and Italy - 1998-1999
1. The Main Purpose Test
2. Dividend Washing and Other Abuses
BB. United Kingdom - 2001: Wave of the Future?
1. Qualification of the Taxpayer Generally - Alternative Tests
a. Public Company Tests
b. Ownership/Base Erosion Test for Entities
c. Alternative Ownership/Base Erosion Test for Trusts
2. Qualification with Respect to a Particular Item of Income - Alternative Tests
a. Derivative Benefits Test
b. Active Business Test
c. Competent Authority Relief
d. Tracking Stock
3. Anti-Conduit Provision
a. Purpose and Effect
b. Application of Rule
CC. Australia Protocol - 2001
DD. Japan - 2003
1. Tracking Stock
2. Hybrid Entities
EE. Dutch Protocol - 2004
1. Publicly Traded Test
2. Public Company Subsidiary Test
3. Ownership and Base Erosion Test
4. Active Business Test
5. Broader Derivative Benefits Test
FF. Barbados Protocol - 2004
1. Stricter Public Company Test
2. Restrictive Ownership and Base Erosion Test
3. Active Business Test - Narrow Definition of Bank
4. Partial Denial of Treaty Benefits to Disqualified Residents
GG. Sweden - 2005
4. Derivative Benefits Test
5. Triangular Arrangements
HH. Ongoing Negotiations with Hungary
II. Belgium - 2006
JJ. Iceland - 2007
KK. Bulgaria - 2007, 2008
VI. Future of the LOB Article
A. In General
B. What the Future May Bring
1. Simplification?
2. New U.S. Model?
3. Greater Influence of EU Law?
4. Modifications to the Derivative Benefits Provision?
5. More Burdensome Documentation Requirements?
Working Papers
Table of Worksheets
Worksheet 1 United States Model Income Tax Convention of September 20, 1996, Article 22
Worksheet 1A United States Model Income Tax Convention of November 15, 2006, Article 22 and Technical Explanation
Worksheet 2 1989 United States-Germany Tax Treaty, Article 28 and Memorandum of Understanding
Worksheet 3 1992 United States-Netherlands Tax Treaty, Article 26 Memorandum of Understanding and 1993 Protocol to 1992 United States-Netherlands Tax Treaty, Article 5
Worksheet 4 2004 Protocol to 1992 United States-Netherlands Tax Treaty, Article 7
Worksheet 5 1996 United States-Luxembourg Tax Treaty, Article 24 and Exchange of Notes
Worksheet 6 1996 United States-Switzerland Tax Treaty, Article 22 Memorandum of Understanding and Protocol
Worksheet 7 1999 United States-Slovenia Tax Treaty
Worksheet 8 2001 United States-United Kingdom Tax Treaty, Article 23, Exchange of Notes and Protocol
Worksheet 9 United States-Barbados Tax Treaty, 2004 Protocol
Bibliography
Internal Revenue Code:
Foreign Statutes and Decrees:
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Tax Treatises:
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