On 14 January 2013, HM Revenue & Customs (HMRC) published new section INTM120085 of the International Manual on company residence, providing clarification on non-standard treaty tie-breaker rules.
According to certain double taxation agreements, e.g. Canada - United Kingdom Income Tax Treaty (1978), Netherlands - United Kingdom Income Tax Treaty (2008) and United Kingdom - United States Income Tax Treaty (2001), when a person, other than an individual, is a resident of both States, the competent authorities of the two States determine by mutual agreement the State of which the person shall be deemed to be a resident (see also section INTM120080). The person is not able to attend or directly take part in the discussions, but can make representations regarding the State in which it considers itself to be actually resident.
Different criteria may be used by the competent authorities when discussing the question of residence and, according to HMRC, the relevant factors that are likely to be considered are as follows:
- place of incorporation;
- place of central management and control;
- place of effective management;
- where company's business activities are;
- economic linkages to each State;
- if there is actually double taxation; and
- the simplest administrative route for the company.
In addition, the section provides for several example scenarios.
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