International Taxation of Offshore Indirect Transfers of Mineral Assets: Legal Analysis Considering the Principle of Fairness and Sustainable Development

Abstract

This article evaluates the current international tax regime that is applicable to gains on offshore indirect transfers (OITs) in the mineral industries against the concepts of fairness and sustainable development. It is first argued from a legal perspective that these two concepts encompass the principles of equality and legal certainty. Article 13(4) of the OECD (Organization for Co-operation and Development) and UN Model Tax Treaties and Article 9 of the Base Erosion and Profit Shift (BEPS) Multilateral Instrument for tax treaties are subsequently analysed to determine to what extent these provisions contribute to supporting tax equality among businesses and between countries as well as promoting legal certainty for both the taxpayers and tax authorities. It was determined that the structuration of mining operations in the form of joint ventures may pose particular challenges, including difficulties in valuing mineral assets or determining the sources from which interests derive value. In this respect, the inclusion of certain exceptions in Article 13(4) of tax treaties is proposed. One such instance could be the exclusion of the scope of the provision of gains made by alienators that hold a certain level of participation. The authors conclude that each country should determine whether to tax such capital gains, taking into account its own specificities and examining the tax system in its entirely. However, the current tax regime is a positive step forward towards fairer taxation and contributes to the fulfilment of specific sustainable development goals (SDGs), at least from the perspective of developing countries. Fairness, legal certainty, tax equality, offshore indirect transfer, sustainable development, tax avoidance, mineral industries, developing countries