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Israel deposits its instrument of ratification of the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS

Executive summary

On 13 September 2018, Israel deposited its instrument of ratification, acceptance or approval of the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS (the MLI) with the Organisation for Economic Co-operation and Development (OECD). At the time of depositing the instrument of ratification, jurisdictions must confirm their MLI positions. Accordingly, Israel submitted the definitive list of 53 tax treaties that Israel would like to designate as Covered Tax Agreements (CTAs), i.e., tax treaties to be amended through the MLI and the list of reservations and notifications. The MLI will enter into force for Israel on the first day of the month following the expiration of a period of three calendar months beginning on the date of deposit by Israel of its instrument of ratification, acceptance or approval, i.e., 1 January 2019.

Israel is the 11th country to deposit its instrument of ratification of the MLI, which is expected to significantly amend most of its tax treaties.

Detailed discussion

Background

On 5 October 2015, the OECD released its final report on developing a multilateral instrument to modify bilateral tax treaties under its Base Erosion and Profit Shifting (BEPS) Action Plan (Action 15). This report was released in a package that included final reports on all 15 BEPS Actions. On 24 November 2016, the OECD released the text of the MLI and explanatory notes.1

On 7 June 2017, 68 jurisdictions2 signed the MLI during a signing ceremony hosted by the OECD in Paris.3 Further, four other jurisdictions4 signed the MLI after the first ceremony. On 23 January 2018, six jurisdictions signed the MLI during a second signing ceremony at the plenary meeting of the Inclusive Framework on BEPS.5 Four additional jurisdictions (Estonia, Kazakhstan, Peru and the United Arab Emirates) signed the MLI in June 2018. Ukraine and Saudi Arabia also signed the MLI on 23 July 2018 and on 18 September 2018 respectively.

Together with the list of CTAs, signatories also submitted a preliminary list of their MLI positions in respect of the various provisions of the MLI.6 The definitive MLI positions for each jurisdiction will be provided upon the deposit of its instrument of ratification, acceptance or approval of the MLI.

The MLI entered into force on 1 July 2018 after the first five jurisdictions (i.e., Austria, the Isle of Man, Jersey, Poland and Slovenia) deposited their instrument of ratification, acceptance or approval of the MLI with the OECD. Following this, four additional jurisdictions (i.e., New Zealand, Serbia, Sweden and the United Kingdom) deposited their instrument of ratification, acceptance or approval of the MLI with the OECD and the MLI will come into force for these jurisdictions on 1 October 2018. Israel and Lithuania deposited their instrument of ratification of the MLI with the OECD on 13 and 11 September 2018 respectively, bringing the total number of jurisdictions that have done so to 11. The MLI will come into force for Israel and Lithuania on 1 January 2019.

With respect to a specific bilateral tax treaty, the measures will only enter into effect after both parties to the treaty have deposited their instrument of ratification, acceptance or approval of the MLI and a specified time has passed. The specified time differs for different provisions. For example, for provisions relating to withholding taxes, the entry into force date is the 1 January of the following year after the last party has notified of its ratification.

Structure of the MLI

Recognizing the complexity of designing a general instrument that applies to the CTAs and to the specific provisions included in bilateral tax treaties, the MLI provides flexibility for Contracting Jurisdictions to implement (parts of) the MLI based on their needs.

Many of the provisions of the MLI overlap with provisions found in CTAs. Where the provisions of the MLI may conflict with existing provisions covering the same subject matter, this conflict is addressed through one or more compatibility clauses which may, for example, describe the existing provisions which the MLI is intended to supersede, as well as the effect on CTAs that do not contain a provision of the same type.

Contracting Jurisdictions have the right to reserve certain parts of the MLI (opt-out) and to have these specific articles not apply to their tax treaties.

The different types of provisions

The MLI contains four types of provisions. Depending on the type of provision, the interaction with CTAs varies. A provision can have one of the following formulations: (i) ”in place of”; (ii) ”applies to”; (iii) ”in the absence of”; and (iv) ”in place of or in the absence of.”

A provision that applies ”in place of” an existing provision is intended ”to replace an existing provision” if one exists, and is not intended to apply if no existing provision exists. Parties shall include in their MLI positions a section on notifications wherein they will list all CTAs that contain a provision within the scope of the relevant MLI provision, indicating the article and paragraph number of each of such provision. A provision of the MLI that applies ”in place of” shall replace a provision of a CTA only where all Contracting Jurisdictions have made a notification with respect to that provision.

A provision that ”applies to” provisions of a CTA is intended ”to change the application of an existing provision without replacing it,” and therefore may only apply if there is an existing provision. Parties shall include in their MLI positions a section on notifications wherein they will list all CTAs that contain a provision within the scope of the relevant MLI provision, indicating the article and paragraph number of each of such provision. A provision of the MLI that ”applies to” provisions shall change the application of a provision of a CTA only where all Contracting Jurisdictions have made a notification with respect to that provision.

A provision that applies ”in the absence of” provisions of a CTA is intended ”to add a provision” if one does not already exist. Parties shall include in their MLI positions a section on notifications wherein they will list all CTAs that do not contain a provision within the scope of the relevant MLI provision. A provision of the MLI that applies ”in the absence of” provisions shall apply only in cases where all Contracting Jurisdictions notify the absence of an existing provision of the CTA.

A provision that applies ”in place of or in the absence of” provisions of a CTA is intended ”to replace an existing provision or to add a provision.” This type of provision will apply in all cases in which all the parties to a CTA have not reserved their right for the entirety of an article to apply to its CTAs. If all Contracting Jurisdictions notify the existence of an existing provision, that provision will be replaced by the provision of the MLI to the extent described in the relevant compatibility clause. Where the Contracting Jurisdictions do not notify the existence of a provision, the provision of the MLI will still apply. If there is a relevant existing provision which has not been notified by all Contracting Jurisdictions, the provision of the MLI will prevail over that existing provision, superseding it to the extent that it is incompatible with the relevant provision of the MLI (according to the explanatory statement of the MLI, an existing provision of a CTA is considered “incompatible” with a provision of the MLI if there is a conflict between the two provisions). Lastly, if there is no existing provision, the provision of the MLI will, in effect, be added to the CTA.

Israel’s CTAs and MLI provisions

Israel has submitted a list of 53 tax treaties that it wishes to designate as CTAs, i.e. to be amended through the MLI.

Accordingly, Israel has chosen to include the vast majority of the jurisdictions that form part of its tax treaty network. Some of the countries in Israel’s CTA list, however, have not yet signed the MLI (for example, the Netherlands).

Israel has excluded three tax treaties currently in force, the ones with the United Kingdom, Switzerland and Germany. In some cases, the reason behind such exclusion is simply because a bilateral new Protocol incorporating the Contracting Jurisdictions’ MLI positions is currently being negotiated between Israel and such jurisdiction.

Hybrid mismatches

Part II of the MLI (Articles 3 to 5) introduces provisions which aim to neutralize certain of the effects of hybrid mismatch arrangements based on the recommendations made in the BEPS Action 2 and Action 6 final reports, released in October 2015. The provisions cover hybrid mismatches related to transparent entities, dual resident entities and elimination of double taxation. These provisions are all not minimum standard provisions and therefore Contracting Jurisdictions have the right to opt to not apply these provisions to their CTAs.

Article 3 - Transparent entities

This provision addresses the situation of hybrid mismatches as a result of entities that one or both Contracting Jurisdictions treat as wholly or partly transparent for tax purposes.

Under Article 3(1), “for the purposes of a CTA, income derived by or through an entity that is treated as wholly or partly transparent under the tax law of either Contacting Jurisdiction shall only be considered income of a resident to the extent that the income is treated, for purposes of taxation by that Contracting Jurisdiction, as the income of a resident of that Contracting Jurisdiction.”

Article 3 of the MLI applies “in place of or in the absence of” an existing provision. Article 3 is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this article entirely.

Israel has not reserved the right for the entirety of Article 3 not to apply to its CTAs, and notified the existing provisions in four of its CTAs that might be replaced (Canada, Mexico, Azerbaijan and Armenia). For all other CTAs, this provision might be added. In other words, Israel chooses to apply this provision in all of its CTAs.

Because Israel chose to opt out for the entirety of Article 11 (Application of tax agreements to restrict a party’s right to tax its own residents), the following sentence will be added to the end of Article 3(1): “In no case shall the provisions of this paragraph be construed to affect a Contracting Jurisdiction’s right to tax the residents of that Contracting Jurisdiction.”

Article 4 - Dual resident entities

Article 4 modifies the rules for determining the treaty residency of a person other than an individual that is a resident of more than one Contracting Jurisdiction (dual resident entity). Under this provision, treaty residency of a dual resident entity shall be determined by a mutual agreement procedure (MAP) between Contracting Jurisdictions. Under the MAP in Article 4, Contracting Jurisdictions are not obligated to successfully reach an agreement and in absence of a successful mutual agreement, a dual resident entity is not entitled to any relief or exemption from tax provided by the CTA except as may be agreed upon by the Contracting Jurisdictions.

Article 4 of the MLI applies “in place of or in the absence of” an existing provision. Article 4 is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this article entirely.

Israel has not reserved the right for the entirety of Article 4 not to apply to its CTAs, and notified the existing provisions in all of its CTAs that might be replaced. In other words, Israel chooses to apply this provision in all of its CTAs.

Article 5 – Application of methods for elimination of double taxation

Article 5 includes three options for Contracting Jurisdictions for the methods of eliminating double taxation. Option A provides that provisions of a CTA that would otherwise exempt income derived or capital owned by a resident of a Contracting Jurisdiction would not apply where the other Contracting Jurisdiction applies the provisions of the CTA to exempt such income or capital from tax or to limit the rate at which such income or capital may be taxed (switch over clause). Instead, a deduction from tax is allowed subject to certain limitations. Under option B, Contracting Jurisdictions would not apply the exemption method with respect to dividends if those dividends are deductible in the other Contracting Jurisdiction. Option C includes that the credit method should be restricted to the net taxable income. Contracting Jurisdictions may choose different options resulting in an asymmetrical application of this provision. Contracting Jurisdictions may also opt not to apply article 5 to one or more of its CTAs.

Article 5 of the MLI is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this option entirely.

Israel has not chosen any of the options under paragraph 1. Therefore, Israel will not apply this provision in its CTAs, and there can be an asymmetrical application of this provision between Israel and the other Contracting Jurisdictions.

Treaty abuse

Part III of the MLI (Articles 6 to 13) contains six provisions related to the prevention of treaty abuse, which correspond to changes proposed in the BEPS Action 6 final report (Preventing the Granting of Treaty Benefits in Inappropriate Circumstances). In particular, the report contains provisions relating to the so-called “minimum standard” aimed at ensuring a minimum level of protection against treaty shopping (Article 6 and Article 7 of the MLI).

Article 6 – Purpose of a CTA

Article 6 contains the proposal described in the Action 6 final report to change the preamble language of a CTA to ensure compliance with one of the requirements of the minimum standard consisting of expressing the common intention to eliminate double taxation without creating opportunities for non-taxation or reduced taxation through tax evasion or avoidance, including through treaty shopping arrangements. Article 6 also includes optional wording that may be added to the preamble of a CTA referring to the desire to develop an economic relationship or to enhance cooperation in tax matters.

Article 6 of the MLI applies “in place of or in the absence of” an existing provision. Article 6 is a provision required to meet a minimum standard and therefore jurisdictions cannot opt out of this Article, unless they reserve the right for this Article not to apply to its CTAs that already contain preamble language within the scope of the reservation.

Israel has not reserved the right for the entirety of Article 6 not to apply to its CTAs. In this regard, Israel notified the existing preambles in 48 of its CTAs that might be replaced, while for the other 5 CTAs that do not include a preamble, this provision might be added. In other words, Israel chooses to apply this provision in all of its CTAs.

Article 7 – Prevention of Treaty Abuse

This article contains the provisions to be included in a CTA to prevent treaty abuse. As concluded in the Action 6 final report, the prevention of treaty abuse should be addressed in one of the following ways: (i) a combined approach consisting of a Limitation on Benefits (LOB) provision and a principal purpose test (PPT); (ii) a PPT alone; or (iii) an LOB provision, supplemented by specific rules targeting conduit financing arrangements. With respect to the LOB provision, the Action 6 final report provided for the option of including a detailed or a simplified version.

Given that a PPT is the only way that a Contracting Jurisdiction can satisfy the minimum standard on its own, it is presented as the default option in Article 7. Parties are allowed to supplement the PPT by electing to also apply a simplified LOB provision.

Specifically, Article 7 articulates the PPT which denies treaty benefits when considering all relevant facts and circumstances, obtaining that benefit is one of the principal purposes for entering into a specific transaction or arrangement that resulted directly or indirectly in that benefit, unless if granting that benefit is not contrary to the object and purpose of the relevant provisions of the CTA.

Israel did not adopt the combination approach consisting of an LOB and a PPT, nor the LOB provision supplemented by specific rules targeting conduit financing arrangements. Therefore, Israel chooses to apply the PPT alone to its CTAs, and notified the existing provisions in 28 of its CTAs that might be replaced by the PPT. For all other CTAs, the PPT might be added. In other words, Israel chooses to apply the PPT alone in all of its CTAs.

Article 8 – Dividends transfer transactions

Article 8 of the MLI specifies anti-abuse rules for benefits provided to dividends transfer transactions consisting of exempting or limiting the tax rate on dividends paid by a company resident of a Contracting Jurisdiction to a beneficial owner or recipient that is resident of the other Contracting Jurisdiction, provided certain ownership requirements which need to be met throughout a 365-day period that includes the day of payment of the dividend are met. The 365-day holding period will apply in place or in the absence of a minimum holding period contained in the provisions described above.

Article 8 of the MLI applies “in place of or in the absence of” an existing provision. Article 8 is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this Article entirely.

Except with respect to the Israel-United States Tax Treaty, which includes a holding period requirement which is longer than 365 days, Israel has not reserved the right for the entirety of Article 8 not to apply to its CTAs, and notified the existing provisions in 34 of its CTAs that might be replaced. For all other CTAs, this provision might be added. In other words, Israel chooses to apply this provision in all of its CTAs, other than the Israel-United States Tax Treaty.

Article 9 – Capital gains from alienation of shares or interests of entities deriving their value principally from immovable property

Article 9 incorporates an anti-abuse rule with respect to capital gains realized from the sale of shares of entities deriving their value principally from immovable property. In this respect, Article 9(1) provides two conditions to be incorporated into a CTA. Such conditions would require meeting a relevant value threshold at any time during the 365 days preceding the sale, and would require that the rule is expanded to apply to shares or comparable interests such as interests in a partnership or trust. The article provides that the 365-day period will replace or add such minimum period in CTAs, unless a Contracting Jurisdiction wishes to preserve the minimum period specified in its CTAs.

In addition, Article 9(4) allows Contracting Jurisdictions to apply Article 13(4) of the OECD Model Tax Convention as included in the Action 6 final report that provides a 365-day holding period prior to the alienation of shares, and requires that the shares or comparable interests derive more than 50% of their value directly or indirectly from immovable property.

Article 9 of the MLI contains two substantial provisions (Article 9(1) and Article 9(4) which is an optional addition) and both apply “in place of or in the absence of” an existing provision. Article 9 is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this Article entirely.

Israel reserved the right for Article 9(1) not to apply to its CTAs, and rather chose to apply Article 9(4) and notified the existing provisions in 47 of its CTAs that might be replaced. For the rest of its CTAs, this provision might be added. In other words, Israel chooses to apply provision of Article 9(4) in all of its CTAs.

Article 10 – Anti-abuse rule for permanent establishment situated in third jurisdictions

Article 10 contains the anti-abuse rule for permanent establishments (PEs) situated in third jurisdictions, the so-called “triangular provision.” The article provides that treaty benefits will be denied if an item of income derived by a treaty resident and attributable to a PE in a third jurisdiction, is exempt from tax in the residence state and the tax in the PE jurisdiction is less than 60% of the tax that would be imposed in the residence state if the PE were located there. The article makes an exception for cases where the income is derived in connection to or incidental to an active trade or business carried out through the PE, and allows discretionary relief to be requested when treaty benefits are denied under this article.

Article 10 of the MLI applies “in place of or in the absence of” an existing provision. Article 10 is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this Article entirely.

Israel has not reserved the right for the entirety of Article 10 not to apply to its CTAs. In other words, Israel chooses to apply this provision in all of its CTAs.

Article 11- Application of tax agreements to restrict a party’s right to tax its own residents

Article 11 contains a so-called “saving clause” rule that preserves a Contracting Jurisdiction’s right to tax its own residents.

Article 11 of the MLI applies “in place of or in the absence of” an existing provision. Article 11 is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this Article entirely.

Israel reserved the right for the entirety of Article 11 not to apply to its CTAs. In other words, Israel chooses not to apply provision 11 in all of its CTAs.

Avoidance of PE status

Part IV of the MLI (Articles 12 to 15) describes the mechanism by which the PE definition in existing tax treaties may be amended pursuant to the BEPS Action 7 final report to prevent the artificial avoidance of PE status through: (i) commissionaire arrangements and similar strategies (Article 12); (ii) the specific activity exemptions (Article 13); and (iii) the splitting-up of contracts (Article 14). Article 15 of the MLI provides the definition of the term “closely related to an enterprise,” which is used in Articles 12 through 14.

Article 12 - Artificial avoidance of PE status through commissionaire arrangements and similar strategies

This article sets out how the changes to the wording of Article 5 of the OECD Model Tax Convention to address the artificial avoidance of PE status through commissionaire arrangements and similar strategies can be incorporated in the CTAs specified by the parties. In particular:

  • In Article 12(1), the concept of Dependent Agent PE is broadened so as to include situations where a person is acting in a Contracting Jurisdiction on behalf of an enterprise and, in doing so, habitually concludes contracts, or habitually exercises the principal role leading to the conclusion of contracts that are routinely concluded without material modification by the enterprise; and
  • In Article 12(2), the concept of Independent Agent is restricted to exclude persons acting exclusively or almost exclusively on behalf of one or more enterprises to which it is “closely related”, e.g., certain situations of control, such as an enterprise that possesses directly or indirectly more than 50% of the interest in the agent.

Article 12 of the MLI applies “in place of” an existing provision. This article is intended to replace an existing provision if one exists, and is not intended to apply if an existing provision does not exist. Article 12 of the MLI will apply only in cases where all Contracting Jurisdictions (i.e., parties to a CTA under the MLI) make a notification with respect to the existing provision of the CTA. Article 12 has two notification clauses. One for the definition of dependent agent and another for definition of independent agent. Further, Article 12 is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this Article entirely.

Israel has not reserved the right for the entirety of Article 12 not to apply to its CTAs, and notified the existing provisions in all of its CTAs that might be replaced. In other words, Israel chooses to apply this provision in all of its CTAs.

Article 13 – Artificial avoidance of PE status through the specific activity exemptions

This article addresses the artificial avoidance of PE status through the specific activity exemptions included in Article 5(4) of the OECD Model Tax Convention. Action 7 recommended that this exemption should only be available if the specific activity listed is of a preparatory or auxiliary character. The MLI provides two options for implementing the changes. Option A is based on the proposed wording in Action 7 (i.e., this exemption should only be available if the specific activity listed is of a preparatory or auxiliary character), while option B allows the Contracting Jurisdiction to preserve the existing exemption for certain specified activities.

This article applies “in place of” an existing provision and therefore this first part of this article is intended to replace an existing provision if one exists, and is not intended to apply if an existing provision does not exist.

Israel chose to apply option A, and notified the existing provisions in all of its CTAs that might be replaced. In other words, Israel chooses to apply option A in all of its CTAs.

Article 13(4) contains a second substantial provision: the anti-fragmentation clause, pursuant to which exemptions included in Article 5(4) will not apply in situations where the business activities may constitute complementary functions that are part of a cohesive business operation.

Article 13(4) “applies to” provisions of a CTA. This type of provision is intended to change the application of an existing provision without replacing it, and therefore can only apply if there is an existing provision. For this reason, the notification provision of Article 13 states that the provision of the Convention will apply only in cases where all Contracting Jurisdictions make a notification with respect to the existing provision of the CTA. The anti-fragmentation clause is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this option entirely.

As Israel notified all of its CTAs for the purpose of Article 13(1), these notifications apply for Article 13(4) as well. In other words, Israel chooses to apply provision 13(4) in all of its CTAs.

Article 14 – Splitting-up of contracts

Under the Action 7 final report recommendations on “Preventing the Artificial Avoidance of PE Status,” the splitting-up of contracts is a potential strategy for the avoidance of PE status through abuse of the exception in Article 5(3) of the OECD Model Tax Convention, governing the situations where building sites, construction or installation projects may constitute a PE.

The Action 7 final report further noted, however, that the PPT provision could still address BEPS concerns related to the abusive splitting-up of contracts in these types of cases.

Article 14 of the MLI applies “in place of or in the absence of” an existing provision. Article 14 is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this article entirely.

Israel has not reserved the right for the entirety of Article 14 not to apply to its CTAs, and as it does not currently have any such provision in its CTAs, did not notify any existing provisions in its CTAs. In other words, Israel chooses to apply this provision in all of its CTAs.

Article 15 – Definition of a person closely related to an enterprise

Article 15 describes the conditions under which a person will be considered to be “closely related” to an enterprise for the purposes of Articles 12, 13 and 14 of the MLI. Therefore, only Contracting Jurisdictions that have made the reservations under Article 12(4), Article 13(6)(a), Article 13(6)(c) and Article 14(3)(a), may reserve their right for the entirety of Article 15 to apply.

Israel has not reserved the right for the entirety of Article 15 not to apply to its CTAs. In other words, Israel chooses to apply this provision in all of its CTAs.

Article 16 – MAP

Part V of the MLI (Articles 16 and 17) introduces provisions which aim to introduce the minimum standard for improving dispute resolution (the BEPS Action 14 minimum standard) and a number of complementing best practices.

Article 16 of the MLI requires countries to include in their tax treaties the provisions regarding the MAP of Article 25 paragraph 1 through paragraph 3 of the OECD Model Tax Convention, including certain modifications of those provisions.

Israel reserved the right for the first sentence of Article 16(1) not to apply to its CTAs, which allows a person that suffered taxation not in accordance with the provisions of a CTA, irrespective of the remedies provided by the domestic law of the Contracting States, to present the case to the competent authority of either Contracting Jurisdiction. Such reservation is made on the basis that Israel intends to meet the minimum standard for improving dispute resolution by ensuring that under each of its CTAs, such person will be able to present to the competent authority of the Contracting Jurisdiction of which that person is resident or, if the case comes under a non-discrimination provision based on nationality, to that of the Contracting Jurisdiction in which that person is national.

In addition, Israel made the relevant notifications for the second sentence of Article 16(2), which requires that the case must be presented within three years from the first notification of the action resulting in taxation not in accordance with the provisions of the CTAs, with the separation between the provisions that will be replaces and those that meet the minimum standard and therefore will not be replaced.

Lastly, Israel notified the list of its CTAs that do not include the provisions under Articles 16(2) and 16(3), to which these provisions might be added. This provisions include the requirements for the competent authority to endeavor to resolve the case by mutual agreement with the competent authority of the other Contracting Jurisdiction, with a view to the avoidance of taxation which is not in accordance with the CTA; that any agreement reached shall be implemented notwithstanding the time limits in the domestic law of the Contracting Jurisdictions; that the competent authority of the Contracting Jurisdiction shall endeavor to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the CTA; and that they may also consult together for the elimination of double taxation in cases not provided for in the CTA.

Article 17 – Corresponding adjustments

This provision is meant to apply in the absence of provisions in CTAs that require a corresponding adjustment where the other treaty party makes a transfer pricing adjustment.

Article 17 of the MLI applies “in place of or in the absence of” an existing provision. Article 17 is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this article entirely. However, the BEPS Action 14 minimum standard requires that jurisdictions provide access to the MAP in transfer pricing cases and implement the resulting mutual agreements regardless of whether the tax treaty contains a provision dealing with corresponding adjustments. In lights of this, a Contracting Jurisdiction may reserve the right not to apply Article 17 of the MLI on the basis that in the absence of a corresponding adjustments provision, either: (i) the Party making the reservation will make the corresponding adjustment as described in Article 17 of the MLI; or (ii) its competent authority will endeavor to resolve a transfer pricing case under the MAP provision of its tax treaty.

Where one Contracting Jurisdiction to a CTA makes such a reservation and the other Contracting Jurisdiction does not, Article 17 of the MLI will not apply to the CTA, and there is no expectation created under the MLI that the Contracting Jurisdiction that has not made the reservation will make a corresponding adjustment.

Israel has not reserved the right for the entirety of Article 17 not to apply to its CTAs, and notified the existing provisions in 42 of its CTAs that might be replaced. For all other CTAs, this provision might be added. In other words, Israel chooses to apply this provision in all of its CTAs.

Mandatory binding arbitration

Part VI of the MLI (Articles 18 to 26) enables countries to include mandatory binding treaty arbitration (MBTA) in their CTAs in accordance with the special procedures provided by the MLI.

Unlike the other articles of the MLI, Part VI applies only between Contracting Jurisdictions that expressly choose to apply Part VI with respect to their tax treaties. Of the 84 jurisdictions that signed the MLI, 28 opted in for mandatory binding arbitration.7

Israel chose for the mandatory binding arbitration not to apply to its CTAs.

Entry into force and effect

The MLI will enter into force for a Contracting Jurisdiction on the first day of the month following the expiration of a period of three calendar months beginning on the date of the deposit of its instrument of ratification, acceptance or approval with the OECD. Israel deposited its instrument of ratification on 13 September 2018 and therefore the MLI will come into force on 1 January 2019.

With respect to specific bilateral tax treaties, the MLI provisions will enter into effect after the MLI has entered into force for both parties to a tax treaty and certain time has elapsed. The specified time differs for different provisions.

With respect to taxes withheld at source, the provisions of the MLI will have an effect on events giving rise to such taxes on or after the first day of the next taxable period that begins on or after the MLI entered into force for both parties to a tax treaty. Israel chose to link the entry into effect of provisions related to withholding taxes to the taxable period, in order to address situations in which the taxable period does not follow the calendar year. In other words, for taxes withheld at source, the MLI will enter into effect for Israel on the first day of taxable periods starting on or after 1 January 2019. For example, for an Israeli tax resident that has a taxable period beginning on 1 February 2019, the MLI provisions will have effect as of the first day of the taxable period.

With respect to other taxes, the provisions of the MLI will have an effect on taxes levied with respect to taxable periods beginning on or after 1 January of the next calendar year beginning on or after the expiration of a period of six calendar months from the date the MLI entered into force for both parties to a tax treaty. For example, for the tax treaties of Israel with Austria, Lithuania, Poland, Slovenia and Sweden, the MLI will have an effect with respect to other taxes levied by Israel from 1 January 2020.

With respect to Article 16 (Mutual Agreement Procedure) of the MLI, the MLI will generally have effect with respect to CTAs for a case presented to the competent authority of a Contracting Jurisdiction on or after the date the MLI entered into force for both parties to a tax treaty. However, Israel reserved the right to not follow the above entry into effect for Article 16. Instead, the entry into effect of Article 16 for Israel will be on or after the first day of the next taxable period that begins on or after the MLI entered into force for both parties to a tax treaty with respect to taxed withheld at source and on or after 1 January of the next year beginning on or after the expiration of a period of six calendar months from the date the MLI entered into force for both parties to a tax treaty with respect to other taxes.Implications

Israel wishes to apply MLI provisions to 53 tax treaties, i.e., the vast majority of those which make up its tax treaty network. This certainly constitutes an unprecedented moment for Israeli international taxation and the implementation of the treaty-based BEPS recommendations in Israel.

The definitive reservations and notifications made by Israel upon the deposit of its instrument of ratification seems quite balanced and consistent with the double tax treaty negotiation policies followed by Israel during the past years.

Multinationals with operations in Israel are encouraged to thoroughly examine the implications of the MLI ratification by Israel, and to consider the relevant effects it might have on its CTAs in the near future, as well as the relevant modifications such effects may require.

Endnotes

1. See EY Global Tax Alert, OECD releases multilateral instrument to implement treaty related BEPS measures on hybrid mismatch arrangements, treaty abuse, permanent establishment status and dispute resolution, dated 2 December 2016, for a more detailed analysis of the MLI related BEPS measures on hybrid mismatch agreements, treaty abuse, permanent establishment (PE) status and dispute resolution.

2. Andorra, Argentina, Armenia, Australia, Austria, Belgium, Bulgaria, Burkina Faso, Canada, Chile, China, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Egypt, Fiji, Finland, France, Gabon, Georgia, Germany, Greece, Guernsey, Hong Kong, Hungary, Iceland, India, Indonesia, Ireland, Isle of Man, Israel, Italy, Japan, Jersey, Korea, Kuwait, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, Monaco, Netherlands, New Zealand, Norway, Pakistan, Poland, Portugal, Romania, Russia, San Marino, Senegal, Serbia, Seychelles, Singapore, Slovak Republic, Slovenia, South Africa, Spain, Sweden, Switzerland, Turkey, the United Kingdom and Uruguay.

3. See EY Global Tax Alert, Signing by 68 jurisdictions of the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS highlights impacts for business to consider, dated 14 June 2017.

4. Cameroon, Curacao, Mauritius and Nigeria.

5. Barbados, Côte d’Ivoire, Jamaica, Malaysia, Panama and Tunisia.

6. For more detail on the MLI Positions taken by the signing jurisdictions on 7 June 2017, see EY Global Tax Alert, Signing by 68 jurisdictions of the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS highlights impacts for business to consider, dated 14 June 2017.

7. Andorra, Australia, Austria, Barbados, Belgium, Canada, Curacao, Fiji, Finland, France, Germany, Greece, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Malta, Mauritius, the Netherlands, New Zealand, Portugal, Singapore, Slovenia, Spain, Sweden, Switzerland and the United Kingdom.

EYG no. 011246-18Gbl

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