2012年-IMF国际货币组织全球_Mongolia_Technical_Assistance_ReportSafeguarding_Domestic_RevenueA_Mongolian_DTA_Model_47页_552kb

报告摘要

Mongolia is increasingly encountering international tax planning by foreign investors, particularly in the mineral extraction sector.
The main investors are multinational companies from Canada, China, and Russia, which use DTA networks to minimize tax burdens.
Mongolia has negotiated and enacted over 30 DTAs in the last two decades, mostly following the UN Model, which grants more taxing rights to the source country compared to the OECD Model.
Some DTAs allow foreign investors to reduce or avoid taxation in Mongolia, potentially harming the domestic tax base.
The authorities requested an assessment of the DTA network to identify weaknesses and suggest improvements.

Mongolia is considering canceling all existing DTAs and building a new network based on trade volume and reciprocity.
Most DTAs are in force for at least five years, and can be terminated by a notice given by 30 June of the preceding year.
The DTA with Kuwait and the UAE has a different termination clause, requiring a five-year period before termination.
Terminating DTAs should be used as a last resort to force renegotiations if provisions are harmful to Mongolia.
DTAs that do not align with recent domestic tax changes (e.g., taxation on indirect transfers of mining licenses) need amendment.
Technical assistance from experienced international tax lawyers and negotiators is recommended to understand foreign tax systems and support negotiations.

Non-resident taxpayers with a permanent establishment (PE) in Mongolia are taxed under the Corporate Income Tax (CIT).
A PE is defined as a fixed place of business, construction site, service activity, agency, or insurance operation.
The CIT allows tax authorities to challenge related-party transactions and adjust taxable profit.

All DTAs use the same definition of a regular PE as the domestic law.
The construction PE threshold varies from 3 to 24 months, with some DTAs (e.g., with Kuwait) setting a lower threshold than the domestic 6-month rule, creating potential loopholes.
The agency PE is not recognized in most DTAs, even if the person holds goods for a foreign enterprise and regularly delivers them.
Transfer pricing provisions exist in most DTAs, but not all include the obligation for the source country to apply corresponding adjustments.

The DTA with Kuwait sets the construction PE threshold at 3 months, conflicting with the domestic 6-month rule.
The agency PE is not recognized in most DTAs, limiting Mongolia's ability to tax certain service providers.
Only some DTAs include the obligation for the source country to apply corresponding adjustments to transfer pricing, which could lead to double taxation.

Ensure that the DTA definition of agency PE includes persons holding goods for a foreign enterprise.
Set the construction PE threshold to at least 6 months, preferably 12 months, to align with international standards.

Service income is taxed as business profit if the service provider has a PE in Mongolia.
If no PE exists, service income is subject to a 20% withholding tax.
Technical fees, management, and consultancy services are generally taxed at 20% withholding tax.

Some DTAs define a service PE after 6–12 months of service, with a few (e.g., China and UAE) requiring 18 months.
Certain DTAs allow the source country to tax technical fees at a maximum rate of 10% or less, which can be used to erode the tax base.

Only half of the DTAs protect Mongolia's right to tax technical fees.
The use of technical fees to avoid taxation is a common abuse, requiring full protection under DTAs.

Include provisions allowing Mongolia to tax technical fees at the same rate as domestic law (CIT or 20% withholding tax).
Establish a service PE after an aggregate period of 3–6 months, not exceeding 6 months.
Add a separate article in DTAs to safeguard the withholding tax on technical fees.

Dividends, interest, and royalty paid to non-residents are subject to a 20% withholding tax.
Dividends paid to residents are subject to a 10% withholding tax.

Most DTAs reduce the withholding tax rate on dividends to 10% or 15%, with some (e.g., China, Korea, Kuwait) reducing it further to 5% or even zero.
The DTA with the UAE does not allow the source state to levy a withholding tax.
Interest on government bonds and loans is often exempt from withholding tax.
Royalty is typically taxed at 5–10%, with some DTAs (e.g., India) allowing a 15% rate.
The definition of "royalty" in some DTAs excludes lease payments, leading to potential tax avoidance.

Certain DTAs, such as those with the Netherlands and Luxembourg, allow tax avoidance through participation exemptions and no withholding taxes.
The DTA with the UAE is of concern due to its lack of withholding tax on dividends.
Lease payments are not covered by royalty definitions in some DTAs, making them vulnerable to tax avoidance.

Allow the source state to tax dividend, interest, and royalty at a maximum of 10%.
Maintain a 10% withholding tax on dividends unless the DTA contains strong anti-treaty shopping provisions.
Exempt interest on government bonds, government secured loans, and loans from regional development banks.
Include lease payments under the definition of "royalty" in DTAs to ensure withholding tax can be applied.

Capital gains from the sale of shares of entities holding exploration or mining licenses are taxed at 30% if more than 50% of the value is attributable to such licenses and at least 10% of the shares are sold.

Capital gains on the sale of shares are generally taxed in the country of residence of the shareholder.
The DTA with Kuwait and the UAE shares the tax base between the source country and the country of residence.
Some DTAs (e.g., Canada and France) limit the definition of "immovable property" to rental property used in business.
The DTA with Singapore and the UK specify that "principally" refers to more than 75% and 50% of the value of the shares, respectively.

Mongolia can only safeguard its taxing rights on indirect sales of mining licenses in a limited number of DTAs.
The definition of "principally" in some DTAs is unclear, leading to potential tax avoidance.

Clarify the definition of "principally" in DTAs to ensure that capital gains from indirect sales of mining licenses are taxed in Mongolia.
Ensure that the DTA framework allows for the taxation of capital gains on indirect transfers of mining licenses.

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