Vous êtes ici : Accueil Fiscalité InternationaleFiscalité Internationale n° 3-2021 - Août 2021

  • Patrimoine
02.3

Usufructs and Income Tax Treaties

AUTEURS

  • Mark L. BRABAZON
    Senior Counsel at the New South Wales bar
    Senior Fellow of Melbourne Law School, University of Melbourne
    En savoir plus

  • Polina KOURALEVA-CAZALS
    Professeur à l’Université de Savoie Mont Blanc
    En savoir plus

#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)