Mark Brabazon is Senior Counsel at the New South Wales bar and a member of 7 Wentworth Selborne Chambers in Sydney. He advises and represents government authorities and private clients in complex international and Australian tax cases. He is the author of International Taxation of Trust Income (Cambridge University Press, 2019) and numerous international tax publications. He holds a PhD in law from the University of Sydney and is a Senior Fellow of Melbourne Law School, where he teaches in the Melbourne Law Masters programme. He is also the Chair of the Council of Law Reporting for New South Wales.
Articles de l'auteur
- Revue FI 3-2021 Patrimoine
#Auteur: Mark L.¤ BRABAZON
#Qualités: Senior Counsel at the New South Wales bar
#Qualités: Senior Fellow of Melbourne Law School, University of Melbourne
#Auteur: Polina¤ KOURALEVA-CAZALS
#Qualités: Professeur à l’Université de Savoie Mont Blanc
Division of ownership by usufruct is an ancient legal institution, which confers on one person (the usufructuary) the right to enjoy and to perceive income from an asset that belongs to another (the bare-owner). However, the consequences of the division of ownership on the taxation are still sometimes unclear and its role in international taxation has been little studied. The French tax regime relies on an implicit assumption that the division of ownership should have no impact on the amount of taxable income from the assets subject to usufruct. The main problem is the identification of the taxpayer (the bare-owner or the usufructuary), which is often difficult even in a purely domestic context and may be divergent in an international context. These divergences can give rise to conflicts of attribution and double taxation or non-taxation. This article considers the application of tax treaties to income derived from assets subject to usufruct, focusing on conflicts of attribution. The matter is examined principally with reference to the OECD Model1 and provisions of the Multilateral Instrument (MLI)2, supplemented by reference to bilateral treaty practice, and a preferred interpretation is proposed.