Analysis Of Article 24 Of Tax Treaties Regarding Non-Discrimination-An Indian Context

In this article, I intend to delve into a few issues concerning nondiscrimination keeping an Indian context in mind

1. The principle of non discrimination 

What is the principle of non-discrimination in international tax parlance?

The principle of “non-discrimination” in the context of the IndiaUSA tax treaty (for instance) is provided in Article 26 of the said Double Taxation Avoidance Agreement (“DTAA”). In essence, the principle of non-discrimination mandates that nationals of a contracting state should not be subjected to any taxation that is “more burdensome” or “less favourable” that the taxation of nationals in the “same circumstances” in the other contracting state. The essence of the article on non-discrimination is to prevent a foreign investor from unfair discrimination vis-à-vis a national of the other contracting state. As a matter of principle, the burden of proving discrimination is on the tax payer.

The term “discrimination” has also been defined in the International Tax Glossary, International Bureau of Physical Documentation, 2001 as the equal treatment of different cases or the unequal treatment of comparable cases. In the context of international tax, discrimination typically takes the form of different treatment of tax payers whose situations are in essence “comparable” except in respect of certain peculiar traits such as nationality, a permanent establishment and its entitlement to deductions or ownership.