Диагностика налоговой выгоды в национальном и международном праве (методологические аспекты)

Abstract

The article is devoted to the aspects of substantiation of tax benefit in transnational operations. The schemes of tax evasion including transnational ones face strong opposition in national legislation, judicial doctrine and provisions of international agreements. In author`s opinion, now the doctrine of unfounded tax benefit is at the new stage of development after the adoption of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation on appraisal by arbitration courts of relevance of gaining of tax benefit by tax residents, dated October 12 № 53. The author examines interaction between internal (Article 54.1 of the Tax Code of the Russian Federation) and international tax rules taking into account new approaches adopted after the OECD/G20 Base Erosion and Profit Shifting Project was realized. Special attention is paid to Multilateral convention to implement tax treaty related measures to prevent base erosion and profit shifting particularly to principle purpose test. The author notes that principle purpose test was designed on the basis of legal link between principal purposes of tax payer transaction and object and purpose of international agreement. The nature of such approach can be explained by peculiarities of international agreements for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income.