Interaction Between Tax Treaties and Domestic Law

Question: Discuss about the Interaction Between Tax Treaties and Domestic Law. Answer: Introduction In this report, an attempt is made to discuss the provisions of section 45 of Singapore Income Tax Act. This section deals with the payments made to nonresidents. This report discusses the purposes of the withholding tax in the context of Singapore. The report discusses the application of withholding tax in the payments that are made to nonresidents. There are certain consequences for making defaulting in withholding tax payments. This report makes discussion regarding the penalty for such nonpayment. There are certain payments that are not subject to withholding tax. These exempted payments are discussed in the report. Further, the report critically discusses and evaluates the application of withholding tax. Purpose of Withholding Tax In Singapore, the applicable tax laws that are Income Tax Act (Chapter 134), Property Tax Act (Chapter 254), Goods and services Act (chapter 117A) and the stamp duties act (Chapter 312). The Internal Revenue Authority of Singapore (IRAS) a board under the Ministry of finance of Singapore is responsible for collecting corporate tax, personal tax, property tax, goods and service taxetc. The Singapore Master Tax guide 2015/16 (34th edition) states that it is necessary to distinguish between resident and nonresident taxpayer because the amount of tax payable depends on the residential status of the taxpayer. The taxpayer is regarded as resident if the following criterias are full filled. The first criteria states that person should reside in Singapore and the second criteria is that the person should be physically present in Singapore for 183 days or more. The third criteria for being a resident is that the taxpayer should exercise employment in Singapore.The taxpayer is regarded as nonresident for the purpose of tax if the taxpayer has stayed in Singapore for 61 days to 182 days or the taxpayer has been employed for less than 60 days. The residents of Singapore are taxed in a progressive basis whereas nonresident taxpayers are taxed in a flat rate as provided later in the report. In case of companies the residential status is determined based on the control and manag ement test. The company is regarded as resident for the purpose of tax if the control and management of the company is in Singapore (Teck et al. 2016). The withholding tax is applicable in Singapore for payment made to non-residents. The nonresident includes the employees, business or partners that are nonresident. In Singapore, the companies are legally bound under Part XII of Deduction of tax at source of SITA to withhold a percentage of payment made to nonresidents. This withhold amounts were required to be deposited with the IRAS and it is called withholding tax (Johannesenand Zucman 2014). It can be said that withholding tax is an effective way of collecting tax from certain group of non-residents. In general, the tax burden lies with thenonresident earning income unless specifically provided in a contract. In this system, the responsibility of the tax reporting and payment is shifted from the nonresident to the resident (Gandhiet al. 2016). The payer withholds a certain percentage of the amount at the time of making the payment. This system has ensured that nonresident taxpayers are unable to avoid their due taxes. Therefore, it can be said that the main purpose of thewithholding taxes is to collect the withholding taxes promptly and effectively from the non-residentsso that government does not lose revenue (Braunerand Baez Moreno 2015). Payments subject to withholding Tax The withholding tax is applied to non-resident companies and professionals. In Singapore a company is considered to be nonresident for the purpose of tax if the company is incorporated in a foreign country. However sometimes company incorporated in Singapore is also treated as nonresident for the purpose of tax (Chauet al. 2014). In case of nonresident companies there are certain types of payments that attracts withholding tax this are discussed below. The payment of interest, fees, commission that are made in connection with any indebtedness or loan under section 45 of the Singapore Income Tax Act. The determination of withholding tax is only relevant for transactions that are deemed to have been conducted in the Singapore. The withholding tax rate that are applied in this case is 15% (Caruana-Galizia and Caruana-Galizia 2016). For example if a loan is provided by foreign bank to entity in Singapore and the entity is paying interest on that loan. Then in such case withholding tax should be deducted from the payments that have been made by the entity to foreign banks. The withholding tax are deducted from the royalty and other payments that are made to a nonresident companies by the application of the section 45A of the SITA. The withholding tax rate that is applied in this case is 10%. For example if an entity in Singapore pays royalty income to a nonresident then in such withholding tax should be deducted at the time of making the payment. Management fees paid to nonresident entity are also subject to withholding tax. The section 12(7)(c) of the SITA states payment that has been made for management or assistance in management of business or profession is deemed to be sourced from Singapore if it is borne by a resident of Singapore. In the case of management fees the withholding tax is determined after considering the facts that are related to double taxation agreement. The withholding tax rate for the management fees is the prevailing corporate tax rate or 17% can also be applied as the withholding tax rate (Dyrenget al. 2015). For example a company in Singapore may hire management consultants from abroad then in such case withholding tax should be deducted at the time of making payment. In case a foreign entity is hired for providing the service like equipment installation, consultancy and others then the payments made subject to withholding tax. It should be noted that withholding tax is applicable only if the work is conducted in Singapore. The withholding tax rate that can be applied in this case is the prevailing tax rate or 17% (Issaand Stull 2014). The entities in Singapore imports equipments then if installation service is provided by a nonresident then in such case the withholding tax is deducted at the time of making payment. The rent received by nonresident company for leasing the movable property in Singapore are subject to withholding tax. The withholding tax rate of 15% is applied for the payment of rent. For example there are certain companies in Singapore that rents movable property from other countries. Then in such case the rent are paid after deducting withholding tax. The payments that are made to nonresident professionals are also subject to withholding tax. In general there is a flat rate of 15% that is applied on the gross income of the nonresident. However there are certain exception in case of payment to nonresident individuals if royalty payment is made or payment is made to directors then withholding tax of 20% is applicable. Payments Exempted from withholding Tax In general withholding tax is applied in case of payments made to nonresidents. There are instances where certain payments are exempted from withholding tax. The details of that are given below: Payments for specialized software The payments that are made for software are regarded as payment of royalty payments and in that case withholding tax of 10% is applied (Morita 2015). However there are certain types of software payments that are exempted form withholding tax. These are software for shrink wrap, software that are downloadable and are used by the end users, license for the sites and software that are bundled with the hardwares of the computer; Dividend Payments The withholding tax is not applied for payments of dividends to nonresidents. Payments made for submarine cable capacity and IRUs The payments that have been made for using the submarine cable capacity is exempted from the application of withholding tax. The withholding tax is not applied to payments made for IRUs. Consequences for defaulting withholding tax There are penalties that are imposed on failure to impose withholding tax on the payments made to nonresidents. The section 45(1) of the SITA provides that every tax deducted is a debt to the government and is recoverable in a manner specified under section 89 of the SITA. It is provided in section 45(3) of the SITA that if a taxpayer fails to deduct tax that was required to be deducted under section 45(1) of the act then in such case the withholding tax is recovered from the taxpayer (Kwanet al. 2016). The taxpayer that have withhold tax from the nonresident is required to submit a form 137 to the IRS. If the taxpayer fails to submit the form or fails to remit the amount deducted from the nonresident then it is considered as a crime committed by the taxpayer. In such case the taxpayer is required to pay the penalty that is three times of the amount withhold from the taxpayer. In addition to this the taxpayer will also liable to pay a fine maximum of $10000 or serve an imprisonment term for not more than 3 years (Spengel 2015). The tax withheld should be paid to the IRS within the due date. In case of late payment penalties are imposed to the maximum of 20% of the tax withheld. If the withholding tax are not submitted within the due date then an immediate penalty of 5% is applied then for each additional completed month penalty of 1% is added. It should be noted that there can be additional penalty to the maximum of 15% (Foster 2014). Evidence from Case Laws The case of ACC V Comptroller of Income Tax (2010) is a significant case related to withholding tax in Singapore. This case is important not only because the word interest have been interpreted by the comptroller to include the payments that have been made for interest rate Swap agreements (Nooret al. 2016). This case is important because of the fact that it was the first judicial test of the assertion of the comptroller that no taxpayer can challenge the withholding tax. The comptroller argued that the withholding tax is mechanism for collecting the tax that are due to the nonresidents (Haberly and Wjcik 2014). The taxpayer is only to act as a paying agent for nonresident and collecting agent for department of revenue. The income tax act provides the opportunity to make appeal against the assessment of tax. The withholding tax is a collection mechanism therefore there is no opportunity for making appeal or bring objection. In this case court observed that interest swap agreement does not give rise to the payment of interest. The court held thatthe letter of demand issued by the commissioner is only an opinion and does not have any actual legal effect. The court further concluded that the responsibility of the commissioner as stated by the income tax act is the assessment and collection of tax (Tinget al. 2016). Therefore the act has not conferred any power on the commissioner to make binding determination of the provision of the law. This was a path breaking case in the withholding tax that have provided the taxpayers the right to challenge the demand raised on the withholding tax. Critical analysis of the effectiveness of withholding tax The withholding is an area that has been continuously overlooked by the individuals and the entities. It is evident from the mistakes made by them in the application of the withholding tax. The penalties that are imposed for noncompliance is significant. Therefore the individuals and entities should be aware of the provisions of the withholding tax so that they can avoid costs that are not necessary (Wiedemannand Finke 2015). The burden of the withholding tax has to be borne by the nonresident therefore for effective application the nonresidents should be made aware of the various provision of the withholding tax. This well help the nonresident to take various exemptions that are existing in the legislation and it is also helpful for them for taking administrative concession. The nonresidents that are required to pay withholding should file tax return so that the income can be ultimately assessed on a net basis (Braun and Weichenrieder 2014). On critical analysis it can be said that withholding tax has helped the government to collect tax from the nonresident in a smooth and timely manner. The revenue loss has significantly reduced as the taxpayer has to bear the liability if the tax is not withhold from the nonresident (Masui 2016). Based on the above discussion it can be said that withholding tax has been effectively applied and this has helped to simplify the process of tax collection and tax administration. However, there are certain suggestions that are provided to improve the application of the withholding tax system and help the nonresident taxpayers. It is suggested that proper steps should be taken to ensure that Form C is completed accurately. It is suggested that assistance should be provided for maintaining good record with IRAS in order to avoid noncompliance and penalty. It is recommended that the tax liability should be reduced if the payer has to bear the withholding tax. The taxpayer should be given more information so that they can use tax treaties for reducing the withholding tax rates. Conclusion Based on the above discussion it can be said that the withholding tax has helped Singapore government to increase its revenue. It can be seen that the withholding tax has been ignored but in recent time therefore it is advised that the government should take steps to ensure that every resident and nonresident are well informed about the withholding tax. Therefore based on the above discussion it can be concluded that withholding tax is critically important for Singapore. 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