Professional Documents
Culture Documents
The U.S. Tax Treaty Network: Past and Present The Model Treaties: Blueprints for Global Tax Coordination Technical Application of Tax Treaties: Taxing Profits Critical Analysis and the Future of Tax Treaties
How U.S. Tax Treaties are Made Historical Development of the U.S. Tax Treaty Network Current Developments
Treaties are entered into by the Executive Branch under Article II, Section 2, of the U.S. Constitution.
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.
Compare to Article I, Section 7, which gives the House of Representatives the lead role in domestic revenue matters.
All Bills for raising Revenue shall originate in the House of Representatives.
Step 1, continued
Congressional restraint on Executive power to make treaties is exercised by the Senate, traditionally through its Foreign Relations Committee. Most treaties are negotiated on behalf of the United States by the State Department. Tax Treaties are an exception: they are negotiated primarily by the Treasury Department.
Primary responsibility is assigned to the Office of International Tax Counsel, a division of the Office of Tax Policy. Staff assistance is traditionally provided by the Internal Revenue Service.
The decision about what treaties to initiate or update is not made public.
Presumably, there is some form of unstated standard, whether written or unwritten, because U.S. treaty policy has been consistent over several decades.
Step 2, continued
In connection with new treaties with Japan and Sri Lanka, former ITC Barbara Angus hinted at some of this policy:
In establishing our negotiating priorities, our primary objective is the conclusion of tax treaties or protocols that will provide the greatest economic benefit to the United States and to U.S. taxpayers. To that end, We communicate regularly with the U.S. business community, seeking input regarding the areas in which treaty network expansion and improvement efforts should be focused.
[Testimony of Barbara M. Angus, International Tax Counsel, United States Department of the Treasury before the Senate Committee on Foreign Relations on Pending Income Tax Agreements, FEBRUARY 25, 2004]
3. Negotiate.
The ITC negotiates the treaty with his or her foreign counterpart This is done in secret, in the sense that there are no public meetings.
4. Initial.
International Tax Counsel initials the treaty to sign off on the negotiations and move the treaty into ratification phase.
5. Submit to President.
International Tax Counsel presents the initialed treaty to the President or his delegate for signature. The Dept of State and Treasury prepare a report to the President recommending he transmit the treaty to Senate for advice abd consent to ratification
President
most treaties tax treaties
State Dept
Treasury Dept
Assistant Secy., Tax Policy
Office of International Tax Counsel traditionally consults with
Congress
Senate Foreign Relations Committee Senate Finance Committee House Ways & Means Committee
negotiates with foreign countries initials the treaty presents to President or his delegate for signature
6. Sign.
7. Transmit to Senate.
After it is signed by the President, the treaty is forwarded together with the Report to Senate under a letter of transmittal. Senate formally lifts the injunction of secrecy, and the signed treaty become public information.
While the Senate Finance Committee has jurisdiction over tax legislation, jurisdiction over tax treaties lies with the Senate Foreign Relations Committee After receiving the signed treaty and the Presidents transmittal letter, the Senate Foreign Relations Committee schedules public hearings
A representative of Treasury testifies at the hearing in support of ratification Treasury also generally presents a Technical Explanation of the treaty
Advice is not defined, and has been construed to mean that Senate can consent to a treaty with reservations with respect to particular provisions Provisions subject to reservation are not enforceable For example, some treaties (e.g. Pakistan) contains a reservation on tax sparing. The Senate must consent to the treaty by a 2/3 vote.
4.
5. 6. 7.
8.
9. 10. 11. 12.
Obtain Authority. Initiate Negotiations. Negotiate Initial Submit to the President Sign Transmit to Senate Transmit to Senate Foreign Relations Committee Obtain Advice and Consent from Senate Transmit to the President Prepare and Sign Instruments of Ratification Exchange Instruments of Ratification
average 5 years to complete often requires protocols simultaneous with entry into force of main agreement, because laws have changed in the interim
So, with which countries has the U.S. completed this process?
France
1946 to 1951: After the War, Northern Europe and New Zealand, including Cook Islands
Sweden Norway Denmark Ireland U.K. Netherlands Canada Belgium France Switzerland
New Zealand
Japan
Honduras
Pakistan
South Africa
Japan
All by UK ext.: Cyprus (UK ext) Greece Cayman Islands BVI Jamaica Anguilla Aruba St. Kitts & Nevis (NE ext.) Antigua & Barbuda Netherlands Antilles (NE ext.) Gambia Montserrat Dominica Nigeria (UK ext.) St. Lucia Sierra Leone Barbados (UK ext.) St. Vincent & the Grenadines Grenada Trinidad & Tobago Congo (Belg ext.) Zambia (UK ext.)
Pakistan Yemen (UK ext) Rwanda (Belg ext.) Burundi Malawi (UK ext.) Seychelles (UK ext.)
Falkland Islands
Cyprus (UK ext) All by UK ext.: Greece BVI Cayman Islands Jamaica Anguilla Aruba St. Kitts & Nevis (NE ext.) Antigua & Barbuda Netherlands Antilles (NE ext.) Gambia Montserrat Dominica Nigeria (UK ext.) St. Lucia Sierra Leone Barbados (UK ext.) St. Vincent & the Grenadines Grenada Trinidad & Tobago Congo (Belg ext.)
Pakistan Yemen (UK ext) Rwanda (Belg ext.) Burundi Malawi (UK ext.) Seychelles (UK ext.)
Falkland Islands
Japan
Pakistan Yemen (UK ext) Rwanda (Belg ext.) Burundi Malawi (UK ext.) Seychelles (UK ext.)
Termination of UK extensions to Cyprus (1968), Cayman Islands (1969), and Zimbabwe (1974).
Japan
Pakistan Yemen (UK ext) Rwanda (Belg ext.) Burundi Malawi (UK ext.) Seychelles (UK ext.)
Korea
Pakistan Yemen (UK ext) Rwanda (Belg ext.) Burundi Malawi (UK ext.) Seychelles (UK ext.)
Zambia (UK ext.) South Africa Australia New Zealand Falkland Islands
Japan
Korea
Pakistan Yemen (UK ext) Rwanda (Belg ext.) Burundi Malawi (UK ext.) Seychelles (UK ext.)
Philippines
(1) Termination of UK extensions to Anguilla, Jamaica Antigua & Barbuda, Aruba (NE ext.) Barbados, Belize, Netherlands Antilles British Virgin Islands, (NE ext.) Dominica, Falkland Trinidad & Tobago Islands, Gambia, Grenada, Malawi, Montserrat, Seychelles, Sierra Leone, St. Kitts & (2) Termination Nevis, St. Lucia, St. Vincent & the Grenadines, Yemen, of Belgium and Zambia; also to Trinidad extensions to & Tobago and Jamaica (but Burundi, Congo, they had independent and Rwanda. treaties as of 1970 and 1981, respectively).
Japan
Korea
XX
X XX XX XX XX
X X
X X XX X XX
South Africa
Pakistan
Philippines
X X
(3) Termination of New Zealand extension to Cook Islands.
Australia New Zealand
Japan
Korea
China
Pakistan Philippines
Barbados
Japan
Jamaica [Aruba (NE ext.)] [Netherlands Antilles (NE ext.)] Barbados Trinidad & Tobago
X
Australia New Zealand
Japan
Jamaica [Aruba (NE ext.)] [Netherlands Antilles (NE ext.)] Barbados Trinidad & Tobago
Spain
Jamaica [Aruba Tunisia (NE ext.)] [Netherlands Antilles (NE ext.)] Barbados Trinidad & Tobago
India
Indonesia
Jamaica
XX
Indonesia
Japan Cyprus Korea China Israel Pakistan Turkey India Armenia Azerbaijan Belarus Estonia Georgia Kazakhstan Latvia Lithuania Moldova Russia Tajikstan Turkmenistan Ukraine Uzbekistan Thailand Philippines
Jamaica Mexico
Indonesia
South Africa
Japan Cyprus Korea China Israel Pakistan Turkey Armenia Azerbaijan Belarus Estonia Georgia Kazakhstan Latvia Lithuania Moldova Russia Tajikstan Turkmenistan Ukraine Uzbekistan India Thailand Philippines
Jamaica Mexico
Indonesia
South Africa
Japan Cyprus Korea China Israel Pakistan Turkey Armenia Azerbaijan Sri Lanka Belarus Estonia Indonesia Georgia Kazakhstan Latvia Lithuania Moldova Russia Tajikstan Turkmenistan Ukraine Uzbekistan India Thailand Philippines
Jamaica Mexico
South Africa
2005: Bangladesh
Czech Republic Germany Austria Sweden Iceland Norway Denmark Ireland U.K. Canada Netherlands Belgium Luxembourg France Switzerland Spain Italy Portugal Morocco Greece Egypt Tunisia Poland Hungary Slovak Slovenia Republic Romania Finland
Japan Cyprus Korea China Israel Pakistan Turkey Armenia Azerbaijan Sri Lanka Bangladesh Belarus Estonia Indonesia Georgia Kazakhstan Latvia Lithuania Moldova Russia Tajikstan Turkmenistan Ukraine Uzbekistan India Thailand Philippines
Jamaica Mexico
South Africa
Jamaica Mexico
Armenia Sri Lanka Azerbaijan Bangladesh Belarus Estonia Indonesia Georgia Kazakhstan Latvia Lithuania Moldova Russia Tajikstan Turkmenistan Ukraine Uzbekistan
Malaysia?