Tax Treatment of International Civil Servants

by Martha, Rutsel Silvestre J.

• ISBN13: 9789004178441
• ISBN10: 9004178449
• Format: Hardcover
• Copyright: 2009-10-31
• Publisher: Martinus Nijhoff

Summary

What sets the tax treatment of the international Civil servants apart are the legal considerations derived from public international law. Often the matter is approached from the perspective of privileges and immunities. However, when regarded as a concern within the context of equal pay for equal work it boils down to employment conditions that need to be satisfied by international organisations due to the peculiar legal setting in which international civil servants discharge their duties. By adding a perspective from the jurisprudence of international (administrative) tribunals to the current scholarship, the present study - the first of its kind - purports to contribute to a better understanding of the matter of taxation of the salary, emoluments and pensions of employees of international organizations. Book jacket.

Author Biography

Dr Rutsel Silvestre J. Martha is the General Counsel and Director of Legal Affairs of the International Fund for Agricultural Development (IFAD), a UN specialized agency based in Rome. He has published extensively on international law, including The Jurisdiction to Tax in International Law (Kluwer, 1989).

Table of Contents

Preface	p. xi
Acknowledgments	p. xiii
List of Abbreviations	p. xv
Table of Cases	p. xvii
Table of Legal Opinions	p. xxvii
Introduction	p. 1
The Problem
Independence of International Civil Servants	p. 9
International civil servants as distinct subjects of international law	p. 9
Exclusivity of the international allegiance	p. 12
Right to functional international protection	p. 15
The exclusive international character of the employment	p. 16
The Impact of the National Jurisdiction to Tax	p. 21
Independent Functioning of International Organizations	p. 29
Equity Amongst Members of International Organizations	p. 33
The Principle of Equality of Treatment	p. 43
The human rights nature of the principle of equality of treatment	p. 43
The right to equal pay for equal work	p. 45
The international instruments	p. 46
The jurisprudence of international courts and tribunals	p. 50
Limitations of the Double Taxation Relief Method	p. 53
Discretionary exercise of the jurisdiction to tax	p. 53
Effects of Double Taxation Treaties	p. 60
The Obligation
Conceptual Foundations	p. 65
Logical necessity	p. 66
An essential condition of employment	p. 69
Fundamental principle of international civil service law	p. 78
Common law of international organizations	p. 79
Conventional and statutory provisions	p. 82
Its Nature	p. 87
Typology of international obligations	p. 87
An obligation of result	p. 88
The means to achieve the result	p. 91
The exemption method	p. 91
Assimilation with diplomats	p. 93
Funcational exemption method	p. 96
Non-subscription to the tax exemption clauses	p. 96
Qualified tax exemption clauses	p. 97
Power to waive the exemption	p. 100
The reserved exemption method	p. 101
The effects of progressive taxation	p. 101
Unreserved exemption	p. 103
Exemption with progression	p. 108
The tax equalization method	p. 116
The "taxation" power of international organizations	p. 116
Tax equalization in the United Nations system	p. 118
Tax equalization in the European regional organizations	p. 122
The legal nature of the tax equalization levies	p. 127
The reimbursement method	p. 133
Method of reimbursement	p. 148
The deduction method	p. 150
Standard deduction method	p. 150
The average deduction method	p. 152
The income methodology	p. 156
The first income method	p. 159
The last-income method	p. 168
The tax adjustment method	p. 175
General	p. 175
Pensions tax adjustment	p. 177
The Obligors
The International Organization	p. 185
The Members	p. 195
The Host Countries	p. 201
The Personal Scope of the Obligation
Authority to Determine the Personal Scope	p. 207
The Personal Scope of the Obligation	p. 217
Members of expert bodies	p. 217
Seconded personnel	p. 219
Locally recruited staff	p. 222
Staff subject to local law contracts	p. 225
Consultants	p. 227
Members of peacekeeping missions	p. 228
Volunteers	p. 231
Dependents	p. 233
Widows and widowers	p. 235
Retired personnel	p. 236
The Object of the Obligation
Taxes Covered	p. 243
State and local taxes	p. 245
Residential taxes	p. 249
Church dues and school levies	p. 252
Social Security Taxes	p. 254
Succession duties	p. 260
Income Covered	p. 263
Salary	p. 264
Emoluments	p. 265
Occupational pensions	p. 267
Indeterminate treaty provisions	p. 269
Divergent state practice	p. 272
Rulings of international courts and tribunals	p. 280
The scope of the exemption clauses	p. 280
The reach of the duty of the international organizations	p. 283
Disability and survivor pensions	p. 292
National Fiscal Benefits	p. 295
Unjust denial of benefits	p. 295
Justified denial of benefits	p. 297
Concluding Remarks
The Zero Sum Game	p. 309
Efficacy of the Tax Exemption Method	p. 315
Efficacy of the Tax Equalization Method	p. 317
Efficacy the Tax Reimbursement Method	p. 319
Efficacy of the Tax Adjustment Method	p. 321
Selected Bibliography	p. 323
Index	p. 327
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