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Tax Treaties as Means of Encouraging Investment in Developing Countries

Published online by Cambridge University Press:  12 February 2016

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In the last twenty-five years more than sixty new states have come into being. Most of these new states are burdened with the problems caused by economic underdevelopment, but are determined to solve those problems. The very fact of underdevelopment, however, has meant that these states are unable to marshall sufficient domestic capital to meet the goals of constant and rapid development. They have, consequently, had to turn to the developed, industrialized nations for aid in achieving those goals.

At first, the aid that was given to the developing countries was generally given on a government to government basis. The explanation for the absence of private enterprise in the business of reconstruction and development may be found in the facts of the economic reality of Europe in the late 1940's and of Africa, Asia and Latin America in the 50's and 60's. The problems that had to be solved were so complex and the means for solving them so limited that it seemed that if anything could be done, it would have to be done on the massive, centralized, planned basis which demanded governmental organization and control. Furthermore, in the short-run, at least, the private sector was totally uninterested in any investment which was risky and, so it seemed, not very profitable. Rational economic decisions were, however, in the case of the developing countries, buttressed by an ideological foundation which rejected private enterprise associated with former colonialist masters and emphasized the economic and social benefits of public control of the means of production. In the past ten years, however, ideology has begun to make way for a more pragmatic approach. The developing countries have come to understand that aid from foreign governments often comes in a package with undesirable political wrappings and that, more important, government to government aid simply could not provide enough of the capital that must be raised if ambitious development programmes are to be met.

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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1971

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References

1 Kaldor, N., “Taxation in Developing Countries” in Fiscal and Monetary Problems in Developing States: Proceedings of the Third Rehovoth Conference (Praeger, N.Y. 1967) 217.Google Scholar

2 Ibid. and generally see Brandon, M., “Investment Encouragement Legislation in the Developing Countries” (1963) J. Bus. L. 352.Google Scholar

3 I.F.A., publication of the International Fiscal Association, no. 32, December 1968, at p. 5.

4 Wurzel, , “Foreign Investment and Extraterritorial Taxation” (1938) 38 Colum. L.R. 809, 814–816.CrossRefGoogle Scholar

5 Burnet v. Brooks, 288 U.S. 378, 399 (1933).

6 World Tax Series: Taxation in the United States, Section 11/2, page 982, note 4 (1963) (hereinafter, WTS/US).

7 Kragen, A. A., “Double Income Taxation Treaties: The O.E.C.D. Draft,” (1964) 52 Cal. L.R. 306 at 306, 307.CrossRefGoogle Scholar

8 WTS/US sec. 11/3.2 (1963); U.S. Internal Revenue Code, sections 901–905.

9 WTS/US, sec. 11/5.1 at pp. 1148–49; Kragen, op. cit., at 331.

10 Wurzel, ibid. (1938) 38 Colum. L.R. 807 at 847–848.

12 See e.g., sources quoted in Von Mehren, and Trautman, , The Law of Multistate Problems (1965) 3746.Google Scholar

13 As, for example section 1 of the Israel Income Tax Ordinance.

14 As, for example, the United States; see WTS/US at pages 981 and 1097.

15 See e.g., Shapira, A., “Choice of Law in the Area of Commercial Contracts in Modern American Conflict of Laws” (1964) 20 Hapraklit 149, 248.Google Scholar

16 Kragen, op. cit., (1964) 52 Cal. L.R. 306 at 332.

17 See e.g., Income Tax Treaty between Belgium and the United States, T.D. 6160 CCH, Tax Treaties, §51, p. 191, (1964).

18 Ibid. §603, p. 707.

19 Anthoine, R. and Bloch, H. S., “Tax Policy and the Gold Problem, an Agenda for Inquiry,” (1961) 61 Colum. L.R. 322, 345.CrossRefGoogle Scholar

20 Remarks by the Honorable Stanley S. Surrey, Assistant Secretary of the Treasury before the American Chambers of Commerce Abroad Breakfast, Washington, D.C., April 30, 1968—U.S. Treasury Dept. Release, at pp. 7 and 8.

21 Gafny, J., “The Adaptation of Tax Conventions to the Needs of the Developing Countries” (1969) 4 no. 13 Quarterly Tax Journal 10, 11 (Hebrew).Google Scholar

22 Ibid., 11.

23 But cf. Wivans v. Attorney General (1910) A.C. 27.

24 Surrey, op. cit., supra n. 20.

25 In fact, countries wishing to attract foreign capital have often waived their taxes withheld at source on interest paid to foreign investors. See Carroll, M. B., “Evolution of U.S. Treaties to Avoid Double Taxation” (part II) (1968) 3 The International Lawyer 129, 139.Google Scholar

26 Kragen, op. cit., (1964) 52 Cal. L.R. at 331.

27 New York Times, Sunday, January 26, 1969, section 4, page 2 E, “Tax Reform”; Surrey, S. S., “Tax Incentives as a Devise for Implementing Government Policy: A Comparison with Direct Government Expenditure”, (1970) 83 Harv. L.R. 705.CrossRefGoogle Scholar

28 Surrey, op. cit., supra n. 20, at p. 14.

30 Ibid., 17.

31 Ibid., 8 and 9.

32 WTS/US p. 511.