[JPRT 106-7-99]
[From the U.S. Government Publishing Office]


                                                               JCS-7-99

                                     

                        [JOINT COMMITTEE PRINT]


 
                        EXPLANATION OF PROPOSED
                       INCOME TAX TREATY BETWEEN
                         THE UNITED STATES AND
                        THE REPUBLIC OF ESTONIA

                        Scheduled for a Hearing

                               before the

                     COMMITTEE ON FOREIGN RELATIONS

                          UNITED STATES SENATE

                          ON OCTOBER 13, 1999

                               __________

                         Prepared by the Staff

                                 of the

                      JOINT COMMITTEE ON TAXATION

[GRAPHIC] [TIFF OMITTED]


                            OCTOBER 8, 1999
                      JOINT COMMITTEE ON TAXATION

                      106th Congress, 1st Session
                                 ------                                
               HOUSE                               SENATE
BILL ARCHER, Texas,                  WILLIAM V. ROTH, Jr., Delaware,
  Chairman                             Vice Chairman
PHILIP M. CRANE, Illinois            JOHN H. CHAFEE, Rhode Island
WILLIAM M. THOMAS, California        CHARLES GRASSLEY, Iowa
CHARLES B. RANGEL, New York          DANIEL PATRICK MOYNIHAN, New York
FORTNEY PETE STARK, California       MAX BAUCUS, Montana

                     Lindy L. Paull, Chief of Staff
               Bernard A. Schmitt, Deputy Chief of Staff
                 Mary M. Schmitt, Deputy Chief of Staff
              Richard A. Grafmeyer, Deputy Chief of Staff
                            C O N T E N T S

                              ----------                              
                                                                   Page
Introduction.....................................................     1

 I. Summary...........................................................2

II. Overview of U.S. Taxation of International Trade and Investment and 
    U.S. Tax Treaties.................................................4

        A. U.S. Tax Rules........................................     4

        B. U.S. Tax Treaties.....................................     5

III.Explanation of Proposed Treaty....................................8


        Article 1.  General Scope................................     8
        Article 2.  Taxes Covered................................    10
        Article 3.  General Definitions..........................    11
        Article 4.  Resident.....................................    12
        Article 5.  Permanent Establishment......................    14
        Article 6.  GIncome From Immovable (Real) Property.......    16
        Article 7.  Business Profits.............................    17
        Article 8.  Shipping and Air Transport...................    20
        Article 9.  Associated Enterprises.......................    21
        Article 10. Dividends....................................    22
        Article 11. Interest.....................................    25
        Article 12. Royalties....................................    28
        Article 13. Capital Gains................................    30
        Article 14. Independent Personal Services................    31
        Article 15. Dependent Personal Services..................    32
        Article 16. Directors' Fees..............................    33
        Article 17. Artistes and Sportsmen.......................    33
        Article 18. Pensions, Social Security, Annuities, 
            Alimony, and Child Support...........................    34
        Article 19. Government Service...........................    34
        Article 20. Students, Trainees and Researchers...........    35
        Article 21. Other Income.................................    36
        Article 22. Limitation on Benefits.......................    37
        Article 23. Relief From Double Taxation..................    41
        Article 24. Nondiscrimination............................    42
        Article 25. Mutual Agreement Procedure...................    43
        Article 26. Exchange of Information and Administrative 
            Assistance...........................................    44
        Article 27. Members of Diplomatic Missions and Consular 
            Posts................................................    46
        Article 28. Entry Into Force.............................    46
        Article 29. Termination..................................    46

IV. Issues...........................................................47

        A. Treatment of REIT Dividends...........................    47

        B. Developing Country Concessions........................    51

        C. Royalty Source Rules..................................    54

        D. Income from the Rental of Ships and Aircraft..........    54

        E. Treaty Shopping.......................................    55

                              INTRODUCTION

    This pamphlet,1 prepared by the staff of the 
Joint Committee on Taxation, describes the proposed income tax 
treaty between the United States of America and the Republic of 
Estonia (``Estonia''). The proposed treaty was signed on 
January 15, 1998.2 The Senate Committee on Foreign 
Relations has scheduled a public hearing on the proposed treaty 
on October 13, 1999.
---------------------------------------------------------------------------
    \1\ This pamphlet may be cited as follows: Joint Committee on 
Taxation, Explanation of Proposed Income Tax Treaty Between the United 
States and the Republic of Estonia (JCS-7-99), October 8, 1999].
    \2\ For a copy of the proposed treaty, see Senate Treaty Doc. 105-
55, June 26, 1998.
---------------------------------------------------------------------------
    Part I of the pamphlet provides a summary with respect to 
the proposed treaty. Part II provides a brief overview of U.S. 
tax laws relating to international trade and investment and of 
U.S. income tax treaties in general. Part III contains an 
article-by-article explanation of the proposed treaty. Part IV 
contains a discussion of issues with respect to the proposed 
treaty.

                               I. SUMMARY

    The principal purposes of the proposed income tax treaty 
between the United States and Estonia are to reduce or 
eliminate double taxation of income earned by residents of 
either country from sources within the other country and to 
prevent avoidance or evasion of the taxes of the two countries. 
The proposed treaty also is intended to promote close economic 
cooperation between the two countries and to eliminate possible 
barriers to trade and investment caused by overlapping taxing 
jurisdictions of the two countries.
    As in other U.S. tax treaties, these objectives principally 
are achieved through each country's agreement to limit, in 
certain specified situations, its right to tax income derived 
from its territory by residents of the other country. For 
example, the proposed treaty contains provisions under which 
each country generally agrees not to tax business income 
derived from sources within that country by residents of the 
other country unless the business activities in the taxing 
country are substantial enough to constitute a permanent 
establishment or fixed base (Articles 7 and 14). Similarly, the 
proposed treaty contains ``commercial visitor'' exemptions 
under which residents of one country performing personal 
services in the other country will not be required to pay tax 
in the other country unless their contact with the other 
country exceeds specified minimums (Articles 14, 15, and 17). 
The proposed treaty provides that dividends, interest, 
royalties, and certain capital gains derived by a resident of 
either country from sources within the other country generally 
may be taxed by both countries (Articles 10, 11, 12, and 13); 
however, the rate of tax that the source country may impose on 
a resident of the other country on dividends, interest, and 
royalties generally will be limited by the proposed treaty 
(Articles 10, 11, and 12).
    In situations where the country of source retains the right 
under the proposed treaty to tax income derived by residents of 
the other country, the proposed treaty generally provides for 
relief from the potential double taxation through the allowance 
by the country of residence of a tax credit for certain foreign 
taxes paid to the other country (Article 23).
    The proposed treaty contains the standard provision (the 
``saving clause'') included in U.S. tax treaties pursuant to 
which each country retains the right to tax its residents and 
citizens as if the treaty had not come into effect (Article 1). 
In addition, the proposed treaty contains the standard 
provision providing that the treaty may not be applied to deny 
any taxpayer any benefits the taxpayer would be entitled to 
under the domestic law of a country or under any other 
agreement between the two countries (Article 1).
    The proposed treaty also contains a detailed limitation on 
benefits provision to prevent the inappropriate use of the 
treaty by third-country residents (Article 22).
    No income tax treaty between the United States and Estonia 
is in force at present. The proposed treaty is similar to other 
recent U.S. income tax treaties, the 1996 U.S. model income tax 
treaty (``U.S. model''), the model income tax treaty of the 
Organization for Economic Cooperation and Development (``OECD 
model''), and the United Nations Model Double Taxation 
Convention between Developed and Developing Countries (the 
``U.N. model''). However, the proposed treaty contains certain 
substantive deviations from those treaties and models.

II. OVERVIEW OF U.S. TAXATION OF INTERNATIONAL TRADE AND INVESTMENT AND 
                           U.S. TAX TREATIES

    This overview briefly describes certain U.S. tax rules 
relating to foreign income and foreign persons that apply in 
the absence of a U.S. tax treaty. This overview also discusses 
the general objectives of U.S. tax treaties and describes some 
of the modifications to U.S. tax rules made by treaties.

                           A. U.S. Tax Rules

    The United States taxes U.S. citizens, residents, and 
corporations on their worldwide income, whether derived in the 
United States or abroad. The United States generally taxes 
nonresident alien individuals and foreign corporations on all 
their income that is effectively connected with the conduct of 
a trade or business in the United States (sometimes referred to 
as ``effectively connected income''). The United States also 
taxes nonresident alien individuals and foreign corporations on 
certain U.S.-source income that is not effectively connected 
with a U.S. trade or business.
    Income of a nonresident alien individual or foreign 
corporation that is effectively connected with the conduct of a 
trade or business in the United States generally is subject to 
U.S. tax in the same manner and at the same rates as income of 
a U.S. person. Deductions are allowed to the extent that they 
are related to effectively connected income. A foreign 
corporation also is subject to a flat 30-percent branch profits 
tax on its ``dividend equivalent amount,'' which is a measure 
of the effectively connected earnings and profits of the 
corporation that are removed in any year from the conduct of 
its U.S. trade or business. In addition, a foreign corporation 
is subject to a flat 30-percent branch-level excess interest 
tax on the excess of the amount of interest that is deducted by 
the foreign corporation in computing its effectively connected 
income over the amount of interest that is paid by its U.S. 
trade or business.
    U.S.-source fixed or determinable annual or periodical 
income of a nonresident alien individual or foreign corporation 
(including, for example, interest, dividends, rents, royalties, 
salaries, and annuities) that is not effectively connected with 
the conduct of a U.S. trade or business is subject to U.S. tax 
at a rate of 30 percent of the gross amount paid. Certain 
insurance premiums earned by a nonresident alien individual or 
foreign corporation are subject to U.S. tax at a rate of 1 or 4 
percent of the premiums. These taxes generally are collected by 
means of withholding.
    Specific statutory exemptions from the 30-percent 
withholding tax are provided. For example, certain original 
issue discount and certain interest on deposits with banks or 
savings institutions are exempt from the 30-percent withholding 
tax. An exemption also is provided for certain interest paid on 
portfolio debt obligations. In addition, income of a foreign 
government or international organization from investments in 
U.S. securities is exempt from U.S. tax.
    U.S.-source capital gains of a nonresident alien individual 
or a foreign corporation that are not effectively connected 
with a U.S. trade or business generally are exempt from U.S. 
tax, with two exceptions: (1) gains realized by a nonresident 
alien individual who is present in the United States for at 
least 183 days during the taxable year, and (2) certain gains 
from the disposition of interests in U.S. real property.
    Rules are provided for the determination of the source of 
income. For example, interest and dividends paid by a U.S. 
citizen or resident or by a U.S. corporation generally are 
considered U.S.-source income. Conversely, dividends and 
interest paid by a foreign corporation generally are treated as 
foreign-source income. Special rules apply to treat as foreign-
source income (in whole or in part) interest and dividends paid 
by certain U.S. corporations with foreign businesses and to 
treat as U.S.-source income (in whole or in part) dividends 
paid by certain foreign corporations with U.S. businesses. 
Rents and royalties paid for the use of property in the United 
States are considered U.S.-source income.
    Because the United States taxes U.S. citizens, residents, 
and corporations on their worldwide income, double taxation of 
income can arise when income earned abroad by a U.S. person is 
taxed by the country in which the income is earned and also by 
the United States. The United States seeks to mitigate this 
double taxation generally by allowing U.S. persons to credit 
foreign income taxes paid against the U.S. tax imposed on their 
foreign-source income. A fundamental premise of the foreign tax 
credit is that it may not offset the U.S. tax liability on 
U.S.-source income. Therefore, the foreign tax credit 
provisions contain a limitation that ensures that the foreign 
tax credit offsets only the U.S. tax on foreign-source income. 
The foreign tax credit limitation generally is computed on a 
worldwide basis (as opposed to a ``per-country'' basis). The 
limitation is applied separately for certain classifications of 
income. In addition, a special limitation applies to the credit 
for foreign taxes imposed on foreign oil and gas extraction 
income.
    For foreign tax credit purposes, a U.S. corporation that 
owns 10 percent or more of the voting stock of a foreign 
corporation and receives a dividend from the foreign 
corporation (or is otherwise required to include in its income 
earnings of the foreign corporation) is deemed to have paid a 
portion of the foreign income taxes paid by the foreign 
corporation on its accumulated earnings. The taxes deemed paid 
by the U.S. corporation are included in its total foreign taxes 
paid and its foreign tax credit limitation calculations for the 
year the dividend is received (or an amount is included in 
income).

                          B. U.S. Tax Treaties

    The traditional objectives of U.S. tax treaties have been 
the avoidance of international double taxation and the 
prevention of tax avoidance and evasion. Another related 
objective of U.S. tax treaties is the removal of the barriers 
to trade, capital flows, and commercial travel that may be 
caused by overlapping tax jurisdictions and by the burdens of 
complying with the tax laws of a jurisdiction when a person's 
contacts with, and income derived from, that jurisdiction are 
minimal. To a large extent, the treaty provisions designed to 
carry out these objectives supplement U.S. tax law provisions 
having the same objectives; treaty provisions modify the 
generally applicable statutory rules with provisions that take 
into account the particular tax system of the treaty partner.
    The objective of limiting double taxation generally is 
accomplished in treaties through the agreement of each country 
to limit, in specified situations, its right to tax income 
earned from its territory by residents of the other country. 
For the most part, the various rate reductions and exemptions 
agreed to by the source country in treaties are premised on the 
assumption that the country of residence will tax the income at 
levels comparable to those imposed by the source country on its 
residents. Treaties also provide for the elimination of double 
taxation by requiring the residence country to allow a credit 
for taxes that the source country retains the right to impose 
under the treaty. In addition, in the case of certain types of 
income, treaties may provide for exemption by the residence 
country of income taxed by the source country.
    Treaties define the term ``resident'' so that an individual 
or corporation generally will not be subject to tax as a 
resident by both the countries. Treaties generally provide that 
neither country will tax business income derived by residents 
of the other country unless the business activities in the 
taxing jurisdiction are substantial enough to constitute a 
permanent establishment or fixed base in that jurisdiction. 
Treaties also contain commercial visitation exemptions under 
which individual residents of one country performing personal 
services in the other will not be required to pay tax in that 
other country unless their contacts exceed certain specified 
minimums (e.g., presence for a set number of days or earnings 
in excess of a specified amount). Treaties address passive 
income such as dividends, interest, and royalties from sources 
within one country derived by residents of the other country 
either by providing that such income is taxed only in the 
recipient's country of residence or by reducing the rate of the 
source country's withholding tax imposed on such income. In 
this regard, the United States agrees in its tax treaties to 
reduce its 30-percent withholding tax (or, in the case of some 
income, to eliminate it entirely) in return for reciprocal 
treatment by its treaty partner.
    In its treaties, the United States, as a matter of policy, 
generally retains the right to tax its citizens and residents 
on their worldwide income as if the treaty had not come into 
effect. The United States also provides in its treaties that it 
will allow a credit against U.S. tax for income taxes paid to 
the treaty partners, subject to the various limitations of U.S. 
law.
    The objective of preventing tax avoidance and evasion 
generally is accomplished in treaties by the agreement of each 
country to exchange tax-related information. Treaties generally 
provide for the exchange of information between the tax 
authorities of the two countries when such information is 
relevant for carrying out provisions of the treaty or of their 
domestic tax laws. The obligation to exchange information under 
the treaties typically does not require either country to carry 
out measures contrary to its laws or administrative practices 
or to supply information that is not obtainable under its laws 
or in the normal course of its administration or that would 
reveal trade secrets or other information the disclosure of 
which would be contrary to public policy. The Internal Revenue 
Service (the ``IRS''), and the treaty partner's tax 
authorities, also can request specific tax information from a 
treaty partner. This can include information to be used in a 
criminal investigation or prosecution.
    Administrative cooperation between countries is enhanced 
further under treaties by the inclusion of a ``competent 
authority'' mechanism to resolve double taxation problems 
arising in individual cases and, more generally, to facilitate 
consultation between tax officials of the two governments.
    Treaties generally provide that neither country may subject 
nationals of the other country (or permanent establishments of 
enterprises of the other country) to taxation more burdensome 
than that it imposes on its own nationals (or on its own 
enterprises). Similarly, in general, neither treaty country may 
discriminate against enterprises owned by residents of the 
other country.
    At times, residents of countries that do not have income 
tax treaties with the United States attempt to use a treaty 
between the United States and another country to avoid U.S. 
tax. To prevent third-country residents from obtaining treaty 
benefits intended for treaty country residents only, U.S. 
treaties generally contain an ``anti-treaty shopping'' 
provision that is designed to limit treaty benefits to bona 
fide residents of the two countries.

                  III. EXPLANATION OF PROPOSED TREATY

    A detailed, article-by-article explanation of the proposed 
income tax treaty between the United States and Estonia is set 
forth below.
Article 1. General Scope
            Overview
    The general scope article describes the persons who may 
claim the benefits of the proposed treaty. It also includes a 
``saving clause'' provision similar to provisions found in most 
U.S. income tax treaties.
    The proposed treaty generally applies to residents of the 
United States and to residents of Estonia, with specific 
modifications to such scope provided in other articles (e.g., 
Article 24 (Nondiscrimination) and Article 26 (Exchange of 
Information and Administrative Assistance)). This scope is 
consistent with the scope of other U.S. income tax treaties, 
the U.S. model, and the OECD model. For purposes of the 
proposed treaty, residence is determined under Article 4 
(Resident).
    The proposed treaty provides that it does not restrict in 
any manner any exclusion, exemption, deduction, credit, or 
other allowance accorded by internal law or by any other 
agreement between the United States and Estonia. Thus, the 
proposed treaty will not apply to increase the tax burden of a 
resident of either the United States or Estonia. According to 
the Treasury Department's Technical Explanation (hereinafter 
referred to as the ``Technical Explanation''), the fact that 
the proposed treaty only applies to a taxpayer's benefit does 
not mean that a taxpayer may select inconsistently among treaty 
and internal law provisions in order to minimize its overall 
tax burden. In this regard, the Technical Explanation sets 
forth the following example. Assume a resident of Estonia has 
three separate businesses in the United States. One business is 
profitable and constitutes a U.S. permanent establishment. The 
other two businesses generate effectively connected income as 
determined under the Internal Revenue Code (the ``Code''), but 
do not constitute permanent establishments as determined under 
the proposed treaty; one business is profitable and the other 
business generates a net loss. Under the Code, all three 
businesses would be subject to U.S. income tax, in which case 
the losses from the unprofitable business could offset the 
taxable income from the other businesses. On the other hand, 
only the income of the business which gives rise to a permanent 
establishment is taxable by the United States under the 
proposed treaty. The Technical Explanation makes clear that the 
taxpayer may not invoke the proposed treaty to exclude the 
profits of the profitable business that does not constitute a 
permanent establishment and invoke U.S. internal law to claim 
the loss of the unprofitable business that does not constitute 
a permanent establishment to offset the taxable income of the 
permanent establishment.3
---------------------------------------------------------------------------
    \3\ See Rev. Rul. 84-17, 1984-1 C.B. 308.
---------------------------------------------------------------------------
    The proposed treaty provides that the dispute resolution 
procedures under its mutual agreement article take precedence 
over the corresponding provisions of any other agreement to 
which the United States and Estonia are parties in determining 
whether a measure is within the scope of the proposed treaty. 
Unless the competent authorities agree that a taxation measure 
is outside the scope of the proposed treaty, only the proposed 
treaty's nondiscrimination rules, and not the nondiscrimination 
rules of any other agreement in effect between the United 
States and Estonia, generally apply to that measure. The only 
exception to this general rule is such national treatment or 
most favored nation obligations as may apply to trade in goods 
under the General Agreement on Tariffs and Trade. For purposes 
of this provision, the term ``measure'' means a law, 
regulation, rule, procedure, decision, administrative action, 
or any similar provision or action.
            Saving clause
    Like all U.S. income tax treaties, the proposed treaty 
includes a ``saving clause.'' Under this clause, with specific 
exceptions described below, the proposed treaty does not affect 
the taxation by a country of its residents or its citizens. By 
reason of this saving clause, unless otherwise specifically 
provided in the proposed treaty, the United States may continue 
to tax its citizens who are residents of Estonia as if the 
treaty were not in force. For purposes of the proposed treaty 
(and, thus, for purposes of the saving clause), the term 
``residents,'' which is defined in Article 4 (Resident), 
includes corporations and other entities as well as 
individuals.
    The proposed treaty contains a provision under which the 
saving clause (and therefore the U.S. jurisdiction to tax) 
applies to a former U.S. citizen or a former long-term resident 
(whether or not treated as such under Article 4 (Resident)), 
whose loss of citizenship or resident status, respectively, had 
as one of its principal purposes the avoidance of tax; such 
application is limited to the ten-year period following the 
loss of citizenship or resident status. Section 877 of the Code 
provides special rules for the imposition of U.S. income tax on 
former U.S. citizens and long-term residents for a period of 
ten years following the loss of citizenship or resident status; 
these special tax rules apply to a former citizen or long-term 
resident only if his or her loss of U.S. citizenship or 
resident status had as one of its principal purposes the 
avoidance of U.S. income, estate, or gift taxes. For purposes 
of applying the special tax rules to former citizens and long-
term residents, individuals who meet a specified income tax 
liability threshold or a specified net worth threshold 
generally are considered to have lost citizenship or resident 
status for a principal purpose of U.S. tax avoidance.
    Exceptions to the saving clause are provided for the 
following benefits conferred by a treaty country: the allowance 
of correlative adjustments when the profits of an associated 
enterprise are adjusted by the other country (Article 9, 
paragraph 2); the exemption from residence country tax for 
social security benefits and certain child support payments 
(Article 18, paragraphs 2 and 5); relief from double taxation 
through the provision of a foreign tax credit (Article 23); 
protection from discriminatory tax treatment with respect to 
transactions with residents of the other country (Article 24); 
and benefits under the mutual agreement procedures (Article 
25). These exceptions to the saving clause permit residents or 
citizens of the United States or Estonia to obtain such 
benefits of the proposed treaty with respect to their country 
of residence or citizenship.
    In addition, the saving clause does not apply to the 
following benefits conferred by one of the countries upon 
individuals who neither are citizens of that country nor have 
been admitted for permanent residence in that country. Under 
this set of exceptions to the saving clause, the specified 
treaty benefits are available to, for example, an Estonian 
citizen who spends enough time in the United States to be taxed 
as a U.S. resident but who has not acquired U.S. permanent 
residence status (i.e., does not hold a ``green card''). The 
benefits that are covered under this set of exceptions are the 
exemptions from host country tax for certain compensation from 
government service (Article 19), certain income received by 
students, trainees, or researchers (Article 20), and certain 
income of diplomats and consular members (Article 27).
Article 2. Taxes Covered
    The proposed treaty generally applies to the income taxes 
of the United States and Estonia. However, Article 24 
(Nondiscrimination) is applicable to all taxes imposed at all 
levels of government, including State and local taxes. 
Moreover, Article 26 (Exchange of Information and 
Administrative Assistance) generally is applicable to all 
national-level taxes, including, for example, estate and gift 
taxes.
    In the case of the United States, the proposed treaty 
applies to the Federal income taxes imposed by the Code and the 
excise taxes imposed with respect to investment income of 
private foundations, but excludes the accumulated earnings tax, 
the personal holding company tax, and social security taxes.
    In the case of Estonia, the proposed treaty applies to the 
income tax (tulumaks) (but excluding the tax on insurance 
companies provided in paragraph 35 of the Estonian income tax 
law) and the local income tax (kohalik tulumaks).
    The proposed treaty also contains a rule generally found in 
U.S. income tax treaties which provides that the proposed 
treaty applies to any identical or substantially similar taxes 
that may be imposed subsequently in addition to or in place of 
the taxes covered. The proposed treaty obligates the competent 
authority of each country to notify the competent authority of 
the other country of any significant changes in its internal 
tax laws or of any official published materials concerning the 
application of the treaty, including explanations, regulations, 
rulings, or judicial decisions. The Technical Explanation 
states that this requirement relates to changes that are 
significant to the operation of the proposed treaty.
Article 3. General Definitions
    The proposed treaty provides definitions of a number of 
terms for purposes of the proposed treaty. Certain of the 
standard definitions found in most U.S. income tax treaties are 
included in the proposed treaty.
    The term ``United States'' means the United States of 
America, but does not include Puerto Rico, the Virgin Islands, 
Guam, or any other U.S. possession or territory. When used in 
the geographical sense, the term ``United States'' also 
includes the territorial sea of the United States, and for 
certain purposes, the definition is extended to include the sea 
bed and subsoil of undersea areas adjacent to the territorial 
sea of the United States. This extension applies to the extent 
that the United States exercises sovereignty in accordance with 
international law for the purpose of natural resource 
exploration and exploitation of such areas. This extension of 
the definition applies, however, only if the person, property, 
or activity to which the proposed treaty is being applied is 
connected with such natural resource exploration or 
exploitation. Thus, the Technical Explanation concludes that 
the term ``United States'' would not include any activity 
involving the sea floor of an area over which the United States 
exercised sovereignty for natural resource purposes if that 
activity was unrelated to the exploration and exploitation of 
natural resources.
    The term ``Estonia'' means the Republic of Estonia and, 
when used in the geographical sense, means the territory of the 
Republic of Estonia and any other area adjacent to the 
territorial waters of the Republic of Estonia within which 
under the laws of Estonia and in accordance with international 
law, the rights of Estonia may be exercised with respect to the 
sea bed and its sub-soil and their natural resources.
    The term ``person'' includes an individual, an estate, a 
trust, a partnership, a company, and any other body of persons.
    A ``company'' under the proposed treaty is any body 
corporate or any entity which is treated as a body corporate 
for tax purposes.
    The terms ``enterprise of a Contracting State'' and 
``enterprise of the other Contracting State'' mean, 
respectively, an enterprise carried on by a resident of a 
Contracting State and an enterprise carried on by a resident of 
the other Contracting State. The proposed treaty does not 
define the term ``enterprise.'' However, despite the absence of 
a clear, generally accepted meaning, the Technical Explanation 
states that the term is understood to refer to any activity or 
set of activities that constitute a trade or business. The 
terms ``a Contracting State'' and ``the other Contracting 
State'' mean the United States or Estonia, according to the 
context in which such terms are used.
    The proposed treaty defines ``international traffic'' as 
any transport by a ship or aircraft operated by an enterprise 
of a treaty country, except when the transport is solely 
between places in the other treaty country. Accordingly, with 
respect to an Estonian enterprise, purely domestic transport 
within the United States does not constitute ``international 
traffic.''
    The U.S. ``competent authority'' is the Secretary of the 
Treasury or his delegate. The U.S. competent authority function 
has been delegated to the Commissioner of Internal Revenue, who 
has redelegated the authority to the Assistant Commissioner 
(International). On interpretative issues, the latter acts with 
the concurrence of the Associate Chief Counsel (International) 
of the IRS. The Estonian ``competent authority'' is the 
Minister of Finance or his authorized representatives.
    The term ``national'' means (1) any individual possessing 
the nationality of a treaty country; and (2) any legal person, 
partnership, or association deriving its status as such from 
the laws in force in a treaty country.
    The proposed treaty also contains the standard provision 
that, unless the context otherwise requires or the competent 
authorities agree to a common meaning, all terms not defined in 
the treaty have the meaning pursuant to the respective laws of 
the country that is applying the treaty. Where a term is 
defined both under a country's tax law and under a non-tax law, 
the definition in the tax law is to be used in applying the 
proposed treaty.
Article 4. Resident
    The assignment of a country of residence is important 
because the benefits of the proposed treaty generally are 
available only to a resident of one of the treaty countries as 
that term is defined in the proposed treaty. Furthermore, 
issues arising because of dual residency, including situations 
of double taxation, may be avoided by the assignment of one 
treaty country as the country of residence when under the 
internal laws of the treaty countries a person is a resident of 
both countries.
            Internal taxation rules
United States
    Under U.S. law, the residence of an individual is important 
because a resident alien, like a U.S. citizen, is taxed on his 
or her worldwide income, while a nonresident alien is taxed 
only on certain U.S.-source income and on income that is 
effectively connected with a U.S. trade or business. An 
individual who spends sufficient time in the United States in 
any year or over a three-year period generally is treated as a 
U.S. resident. A permanent resident for immigration purposes 
(i.e., a ``green card'' holder) also is treated as a U.S. 
resident.
    Under U.S. law, a company is taxed on its worldwide income 
if it is a ``domestic corporation.'' A domestic corporation is 
one that is created or organized in the United States or under 
the laws of the United States, a State, or the District of 
Columbia.
Estonia
    Individuals are considered to be residents of Estonia if 
they stay in Estonia 183 days or more during the taxable 
period, if they have a permanent place of residence in Estonia, 
or if they are persons employed in the public service of 
Estonia and sent abroad. Under Estonian law, residents are 
subject to tax on their worldwide income, while nonresident 
individuals are subject to tax only on income earned in 
Estonia.
    A corporation is resident in Estonia if it is founded or 
formed under Estonian law. Estonian resident companies are 
subject to taxation on their worldwide income. Nonresident 
companies are taxed only on income earned in Estonia.
            Proposed treaty rules
    The proposed treaty specifies rules to determine whether a 
person is a resident of the United States or Estonia for 
purposes of the proposed treaty. The rules generally are 
consistent with the rules of the U.S. model.
    The proposed treaty generally defines ``resident of a 
Contracting State'' to mean any person who, under the laws of 
that country, is liable to tax in that country by reason of the 
person's residence, domicile, citizenship, place of management, 
place of incorporation, or any other criterion of a similar 
nature. The term ``resident of a Contracting State'' does not 
include any person that is liable to tax in that country only 
on income from sources in that country. According to the 
Technical Explanation, the reference in the proposed treaty to 
persons ``liable to tax'' in a country is interpreted as 
referring to those persons subject to the taxation laws of such 
country; the reference therefore includes REITs that are 
subject to the tax laws of a country (even though such 
organizations generally do not pay tax). The determination of 
whether a citizen or national is considered a resident of the 
United States or Estonia is made based on the principles of the 
treaty tie-breaker rules described below.
    The proposed treaty provides that the income of a 
partnership, estate, or trust is considered to be the income of 
a resident of one of the treaty countries only to the extent 
that such income is subject to tax in that country as the 
income of a resident, either in its hands or in the hands of 
its partners or beneficiaries. Under this provision, for 
example, if the U.S. partners' share of the income of a U.S. 
partnership is only one-half, the proposed treaty's limitations 
on withholding tax rates would apply to only one-half of the 
Estonian source income paid to the partnership.
    The proposed treaty provides that an individual who is a 
resident (as defined above) of a treaty country due to his or 
her citizenship or permanent residency (i.e., a ``green card'' 
holder), and is not a resident of the other treaty country, 
will be considered a resident of the first treaty country only 
if he or she has a substantial presence, permanent home, or 
habitual abode in such country.
    The proposed treaty also considers a resident to include 
(1) a treaty country, political subdivision, or a local 
authority thereof, and any agency or instrumentality of the 
treaty country, subdivision, or local authority; and (2) a 
legal person organized under the laws of a treaty country and 
that is generally exempt from tax in the treaty country because 
it is established and maintained either (i) exclusively for a 
religious, charitable, educational, scientific, or other 
similar purpose; or (ii) to provide pensions or other similar 
benefits to employees pursuant to a plan. The Technical 
Explanation states that the term ``similar benefits'' is 
intended to encompass employee benefits such as health and 
disability benefits.
    A set of ``tie-breaker'' rules is provided to determine 
residence in the case of an individual who, under the basic 
residence definition, would be considered to be a resident of 
both countries. Under these rules, an individual is deemed to 
be a resident of the country in which he or she has a permanent 
home available. If the individual has a permanent home in both 
countries, the individual's residence is deemed to be the 
country with which his or her personal and economic relations 
are closer (i.e., his or her ``center of vital interests''). If 
the country in which the individual has his or her center of 
vital interests cannot be determined, or if he or she does not 
have a permanent home available in either country, he or she is 
deemed to be a resident of the country in which he or she has 
an habitual abode. If the individual has an habitual abode in 
both countries or in neither country, he or she is deemed to be 
a resident of the country of which he or she is a national. If 
the individual is a national of both countries or neither 
country, the competent authorities of the countries will settle 
the question of residence by mutual agreement.
    If a company would be a resident of both countries under 
the basic definition in the proposed treaty, the competent 
authorities of the countries will attempt to settle the 
question of residence by mutual agreement. If a mutual 
agreement cannot be reached, the company will not be considered 
to be a resident of either country for purposes of enjoying 
benefits under the proposed treaty.
    In the case of any person other than an individual or a 
company that would be a resident of both countries under the 
basic definition in the proposed treaty, the proposed treaty 
requires the competent authorities to settle the issue of 
residence by mutual agreement and to determine the mode of 
application of the proposed treaty to such person.
Article 5. Permanent Establishment
    The proposed treaty contains a definition of the term 
``permanent establishment'' that generally follows the pattern 
of other recent U.S. income tax treaties, the U.S. model, and 
the OECD model.
    The permanent establishment concept is one of the basic 
devices used in income tax treaties to limit the taxing 
jurisdiction of the host country and thus to mitigate double 
taxation. Generally, an enterprise that is a resident of one 
country is not taxable by the other country on its business 
profits unless those profits are attributable to a permanent 
establishment of the resident in the other country. In 
addition, the permanent establishment concept is used to 
determine whether the reduced rates of, or exemptions from, tax 
provided for dividends, interest, and royalties apply, or 
whether those items of income will be taxed as business 
profits.
    In general, under the proposed treaty, a permanent 
establishment is a fixed place of business through which the 
business of an enterprise is wholly or partly carried on. A 
permanent establishment includes a place of management, a 
branch, an office, a factory, a workshop, a mine, an oil or gas 
well, a quarry, or any other place of extraction of natural 
resources. It also includes a building site or a construction 
or installation project, or an installation or drilling rig or 
ship used for the exploration or exploitation of natural 
resources, if the site, project, rig, or ship continues for 
more than six months. The Technical Explanation states that the 
six-month test applies separately to each individual site or 
project, with a series of contracts or projects that are 
interdependent both commercially and geographically treated as 
a single project. The Technical Explanation further states that 
if the six-month threshold is exceeded, the site or project 
constitutes a permanent establishment as of the first day that 
work in the country began. The U.S. model contains similar 
rules, but the threshold period is twelve months rather than 
six months.
    Under the proposed treaty, the following activities are 
deemed not to constitute a permanent establishment: (1) the use 
of facilities solely for storing, displaying, or delivering 
goods or merchandise belonging to the enterprise; (2) the 
maintenance of a stock of goods or merchandise belonging to the 
enterprise solely for storage, display, or delivery or solely 
for processing by another enterprise; (3) the maintenance of a 
fixed place of business solely for the purchase of goods or 
merchandise or for the collection of information for the 
enterprise; and (4) the maintenance of a fixed place of 
business solely for the purpose of carrying on for the 
enterprise any other activity of a preparatory or auxiliary 
character.
    Under the U.S. model, the maintenance of a fixed place of 
business solely for any combination of the above-listed 
activities does not constitute a permanent establishment. Under 
the proposed treaty (as under the OECD model), a fixed place of 
business used solely for any combination of these activities 
does not constitute a permanent establishment, provided that 
the overall activity of the fixed place of business is of a 
preparatory or auxiliary character. In this regard, the 
Technical Explanation states that it is assumed that a 
combination of preparatory or auxiliary activities generally 
will also be of a character that is preparatory or auxiliary.
    Under the proposed treaty, if a person, other than an 
independent agent, is acting in a treaty country on behalf of 
an enterprise of the other country and has, and habitually 
exercises, the authority to conclude contracts in the name of 
such enterprise, the enterprise is deemed to have a permanent 
establishment in the first country in respect of any activities 
undertaken for that enterprise. This rule does not apply where 
the contracting authority is limited to the activities listed 
above, such as storage, display, or delivery of merchandise, 
which are excluded from the definition of a permanent 
establishment.
    Under the proposed treaty, no permanent establishment is 
deemed to arise if the agent is a broker, general commission 
agent, or any other agent of independent status, provided that 
the agent is acting in the ordinary course of its business. 
However, an agent will not be considered as independent if its 
activities are devoted wholly or almost wholly on behalf of an 
enterprise and the conditions between the agent and the 
enterprise differ from those which would be made between 
independent persons (i.e., the agent and the enterprise are not 
operating at arms length). In such a case, the rules in the 
preceding paragraph will apply. The Technical Explanation 
states that whether an enterprise and an agent are independent 
is a factual determination, a relevant factor of which includes 
the extent to which the agent bears business risk.
    The proposed treaty provides that the fact that a company 
that is a resident of one country controls or is controlled by 
a company that is a resident of the other country or that 
engages in business in the other country (whether through a 
permanent establishment or otherwise) does not of itself cause 
either company to be a permanent establishment of the other.
Article 6. Income From Immovable (Real) Property
    This article covers income from real property. The rules 
covering gains from the sale of real property are in Article 13 
(Capital Gains).
    Under the proposed treaty, income derived by a resident of 
one country from immovable (real) property situated in the 
other country may be taxed in the country where the property is 
located. This rule is consistent with the rules in the U.S. and 
OECD models. For this purpose, income from immovable (real) 
property includes income from agriculture or forestry.
    The term ``immovable (real) property'' has the meaning 
which it has under the law of the country in which the property 
in question is situated. In the case of the United States, the 
term ``real property'' is defined in Treas. Reg. sec. 1.897-
1(b). The proposed treaty specifies that the term in any case 
includes: property accessory to immovable (real) property; 
livestock and equipment used in agriculture and forestry; 
rights to which the provisions of general law respecting landed 
property apply; any option or similar right to acquire 
immovable (real) property; usufruct of immovable (real) 
property; and rights to variable or fixed payments relating to 
the production from, or the right to work, mineral deposits, 
sources, and other natural resources. Ships, boats, and 
aircraft are not considered to be immovable (real) property.
    The proposed treaty specifies that the country in which the 
property is situated also may tax income derived from the 
direct use, letting, or use in any other form of immovable 
(real) property. The rules of Article 6, permitting source 
country taxation, also apply to the income from immovable 
(real) property of an enterprise and to income from immovable 
(real) property used for the performance of independent 
personal services.
    Where the ownership of shares or other corporate rights in 
a company entitles the owner to the enjoyment of immovable 
(real) property held by the company, any income from the direct 
use, letting, or use in any other form of this right of 
enjoyment may be taxed in the treaty country in which the 
immovable (real) property is situated. The Technical 
Explanation states that this rule is intended to clarify that 
such income is to be treated as income from immovable (real) 
property and not as income from movable property, and will 
likely apply to a shareholder of an apartment rental 
cooperative.
    The proposed treaty provides that residents of a treaty 
country that are liable for tax in the other treaty country on 
income from immovable (real) property situated in such other 
treaty country may elect to compute the tax on such income on a 
net basis. In the case of the U.S. tax, such an election will 
be binding for the taxable year of the election and all 
subsequent taxable years unless the competent authority of the 
United States agrees to terminate the election. U.S. internal 
law provides such a net-basis election in the case of income of 
a foreign person from U.S. real property (Code secs. 871(d) and 
882(d)).
Article 7. Business Profits
            Internal taxation rules
United States
    U.S. law distinguishes between the U.S. business income and 
the other U.S. income of a nonresident alien or foreign 
corporation. A nonresident alien or foreign corporation is 
subject to a flat 30-percent rate (or lower treaty rate) of tax 
on certain U.S.-source income if that income is not effectively 
connected with the conduct of a trade or business within the 
United States. The regular individual or corporate rates apply 
to income (from any source) which is effectively connected with 
the conduct of a trade or business within the United States.
    The treatment of income as effectively connected with a 
U.S. trade or business depends upon whether the source of the 
income is U.S. or foreign. In general, U.S.-source periodic 
income (such as interest, dividends, rents, and wages) and 
U.S.-source capital gains are effectively connected with the 
conduct of a trade or business within the United States if the 
asset generating the income is used in (or held for use in) the 
conduct of the trade or business or if the activities of the 
trade or business were a material factor in the realization of 
the income. All other U.S.-source income of a person engaged in 
a trade or business in the United States is treated as 
effectively connected with the conduct of a trade or business 
in the United States (under what is referred to as a ``force of 
attraction'' rule).
    Foreign-source income generally is effectively connected 
income only if the foreign person has an office or other fixed 
place of business in the United States and the income is 
attributable to that place of business. Only three types of 
foreign-source income are considered to be effectively 
connected income: rents and royalties for the use of certain 
intangible property derived from the active conduct of a U.S. 
business; certain dividends and interest either derived in the 
active conduct of a banking, financing or similar business in 
the United States or received by a corporation the principal 
business of which is trading in stocks or securities for its 
own account; and certain sales income attributable to a U.S. 
sales office. Special rules apply for purposes of determining 
the foreign-source income that is effectively connected with a 
U.S. business of an insurance company.
    Any income or gain of a foreign person for any taxable year 
that is attributable to a transaction in another year is 
treated as effectively connected with the conduct of a U.S. 
trade or business if it would have been so treated had it been 
taken into account in that other year (Code sec. 864(c)(6)). In 
addition, if any property ceases to be used or held for use in 
connection with the conduct of a trade or business within the 
United States, the determination of whether any income or gain 
attributable to a sale or exchange of that property occurring 
within ten years after the cessation of business is effectively 
connected with the conduct of a trade or business within the 
United States is made as if the sale or exchange occurred 
immediately before the cessation of business (Code sec. 
864(c)(7)).
Estonia
    Permanent establishments of foreign corporations and 
nonresident individuals generally are subject to Estonian tax 
only on income derived in Estonia. Business income derived in 
Estonia by a foreign corporation or nonresident individual 
generally is taxed in the same manner as the income of an 
Estonian corporation or resident individual, at a rate of 26 
percent.
            Proposed treaty limitations on internal law
    Under the proposed treaty, business profits of an 
enterprise of one of the countries are taxable in the other 
country only to the extent that they are attributable to a 
permanent establishment in the other country through which the 
enterprise carries on business. This is one of the basic 
limitations on a country's right to tax income of a resident of 
the other country. The rule is similar to those contained in 
the U.S. and OECD models.
    Under certain circumstances, the business profits of an 
enterprise of one country may be taxable in the other country 
even though the permanent establishment was not involved in the 
generation of such profits if two conditions are met. First, 
the profits must be derived either from the sale of goods or 
merchandise of the same or similar kind as those sold through 
the permanent establishment or from other business activities 
of the same or similar kind as those effected through the 
permanent establishment. Second, it must be established that 
the sale or activities were structured in a manner intended to 
avoid taxation in the country in which the permanent 
establishment is located. Taxation by the source country of 
this category of profits represents a limited force of 
attraction rule that is similar to, but narrower than, the 
rules found in the U.N. model and Code section 864(c)(3). The 
intent of the provision is to permit the source country to tax 
the income derived from sales or other business activities 
within its borders by the home office of the enterprise if such 
sales or activities are the same as or similar to sales or 
activities conducted there by the permanent establishment. Such 
profits may not be taxed by the source country, however, unless 
it is established that the transactions were structured to 
avoid such tax.
    The taxation of business profits under the proposed treaty 
differs from U.S. internal law rules for taxing business 
profits primarily by requiring more than merely being engaged 
in a trade or business before a country can tax business 
profits and by substituting an ``attributable to'' standard for 
the Code's ``effectively connected'' standard. Under the 
proposed treaty, some level of fixed place of business would 
have to be present and the business profits generally would 
have to be attributable to that fixed place of business (or 
subject to the limited force of attraction rule described 
above).
    The proposed treaty provides that there will be attributed 
to a permanent establishment the business profits which it 
might be expected to make if it were a distinct and independent 
enterprise engaged in the same or similar activities under the 
same or similar conditions. The Technical Explanation states 
that this rule permits the use of methods other than separate 
accounting to estimate the arm's-length profits of a permanent 
establishment where it is necessary to do so for practical 
reasons, such as when the affairs of the permanent 
establishment are so closely bound up with those of the head 
office that it would be impossible to disentangle them on any 
strict basis of accounts.
    In computing taxable business profits, the proposed treaty 
provides that deductions are allowed for expenses, wherever 
incurred, which are incurred for the purposes of the permanent 
establishment. These deductions include a reasonable allocation 
of research and development expenses, interest, and other 
similar expenses and executive and general administrative 
expenses. The Technical Explanation states that this rule 
permits (but does not require) each treaty country to apply the 
type of expense allocation rules provided by U.S. law (such as 
in Treas. Reg. secs. 1.861-8 and 1.882-5).
    The Technical Explanation clarifies that deductions will 
not be allowed for expenses charged to a permanent 
establishment by another unit of the enterprise. Thus, a 
permanent establishment may not deduct a royalty deemed paid to 
the head office.
    Unlike the U.S. model or the OECD model, the proposed 
treaty allows each treaty country, consistent with its internal 
law, to impose limitations on the deductions taken by the 
permanent establishment as long as the limitations are 
consistent with the concept of net income (e.g., partially 
disallowed entertainment expenses).
    In cases where the information available to the competent 
authority is not adequate to measure accurately the profits of 
a permanent establishment, the tax authorities of a treaty 
country may apply the provisions of their internal law in 
determining the tax liability of such permanent establishment. 
This rule applies provided that, on the basis of available 
information, the determination of the profits of the permanent 
establishment is consistent with the principles of this 
article.
    Business profits are not attributed to a permanent 
establishment merely by reason of the purchase of goods or 
merchandise by the permanent establishment for the enterprise. 
Thus, where a permanent establishment purchases goods for its 
head office, the business profits attributed to the permanent 
establishment with respect to its other activities are not 
increased by a profit element in its purchasing activities.
    The proposed treaty requires the determination of business 
profits of a permanent establishment to be made in accordance 
with the same method year by year unless a good and sufficient 
reason to the contrary exists. For purposes of the proposed 
treaty, the term ``business profits'' means profits derived 
from any trade or business, including profits from 
manufacturing, mercantile, fishing, transportation, 
communications, or extractive activities. Also included are 
profits from the furnishing of personal services of another 
person, including the furnishing by a company of the personal 
services of its employees. Business profits, however, do not 
include income received by an individual for his performance of 
personal services either as an employee or in an independent 
capacity.
    Where business profits include items of income that are 
dealt with separately in other articles of the proposed treaty, 
those other articles, and not the business profits article, 
govern the treatment of those items of income (except where 
such other articles specifically provide to the contrary). 
Thus, for example, dividends are taxed under the provisions of 
Article 10 (Dividends), and not as business profits, except as 
specifically provided in Article 10.
    The proposed treaty provides that, for purposes of the 
taxation of business profits, income may be attributable to a 
permanent establishment (and therefore may be taxable in the 
source country) even if the payment of such income is deferred 
until after the permanent establishment or fixed base has 
ceased to exist. This rule incorporates into the proposed 
treaty the rule of Code section 864(c)(6) described above. This 
rule applies with respect to business profits (Article 7, 
paragraphs 1 and 2), dividends (Article 10, paragraph 4), 
interest (Article 11, paragraph 5), royalties (Article 12, 
paragraph 4), capital gains (Article 13, paragraph 3), 
independent personal services income (Article 14), and other 
income (Article 21, paragraph 2).
Article 8. Shipping and Air Transport
    Article 8 of the proposed treaty covers income from the 
operation or rental of ships, aircraft, and containers in 
international traffic. The rules governing income from the 
disposition of ships, aircraft, and containers are in Article 
13 (Capital Gains).
    The United States generally taxes the U.S.-source income of 
a foreign person from the operation of ships or aircraft to or 
from the United States. An exemption from U.S. tax is provided 
if the income is earned by a corporation that is organized in, 
or an alien individual who is resident in, a foreign country 
that grants an equivalent exemption to U.S. corporations and 
residents. The United States has entered into agreements with a 
number of countries providing such reciprocal exemptions.
    Under the proposed treaty, profits which are derived by an 
enterprise of one country from the operation in international 
traffic of ships or aircraft (``shipping profits'') are taxable 
only in that country, regardless of the existence of a 
permanent establishment in the other country. ``International 
traffic'' is defined in Article 3(1)(g) (General Definitions) 
as any transport by a ship or aircraft operated by an 
enterprise of a treaty country, except when the transport is 
solely between places in the other treaty country.
    For purposes of the proposed treaty, shipping profits 
subject to the rule described in the foregoing paragraph 
include profits derived from the rental of ships or aircraft on 
a full (time or voyage) basis (i.e., with crew). It also 
includes profits from the rental of ships or aircraft on a 
bareboat basis (i.e., without crew) by an enterprise engaged in 
the operation of ships or aircraft in international traffic, if 
such rental activities are incidental to the activities from 
the operation of ships or aircraft in international traffic. 
The Technical Explanation states that such rental profits from 
bareboat leasing that are not incidental to the operation of 
ships or aircraft in international traffic are treated as 
royalties (Article 12) or as business profits (Article 7). 
Profits derived by an enterprise from the inland transport of 
property or passengers within either treaty country are treated 
as profits from the operation of ships or aircraft in 
international traffic if such transport is undertaken as part 
of international traffic by the enterprise.
    The proposed treaty provides that profits of an enterprise 
of a country from the use, maintenance, or rental of containers 
(including trailers, barges, and related equipment for the 
transport of containers) used in international traffic is 
exempt from tax in the other country.
    The shipping and air transport provisions of the proposed 
treaty apply to profits from participation in a pool, joint 
business, or international operating agency. This refers to 
various arrangements for international cooperation by carriers 
in shipping and air transport.
    The Technical Explanation states that certain non-transport 
activities that are an integral part of the services performed 
by a transport company are understood to be covered by this 
article of the proposed treaty.
Article 9. Associated Enterprises
    The proposed treaty, like most other U.S. tax treaties, 
contains an arm's-length pricing provision. The proposed treaty 
recognizes the right of each country to make an allocation of 
profits to an enterprise of that country in the case of 
transactions between related enterprises, if conditions are 
made or imposed between the two enterprises in their commercial 
or financial relations which differ from those which would be 
made between independent enterprises. In such a case, a country 
may allocate to such an enterprise the profits which it would 
have accrued but for the conditions so imposed. This treatment 
is consistent with the U.S. model.
    For purposes of the proposed treaty, an enterprise of one 
country is related to an enterprise of the other country if one 
of the enterprises participates directly or indirectly in the 
management, control, or capital of the other enterprise. 
Enterprises are also related if the same persons participate 
directly or indirectly in their management, control, or 
capital.
    Under the proposed treaty, when a redetermination of tax 
liability has been made by one country under the provisions of 
this article, the other country will (after agreeing that the 
adjustment was appropriate) make an appropriate adjustment to 
the amount of tax paid in that country on the redetermined 
income. In making such adjustment, due regard is to be given to 
other provisions of the proposed treaty, and the competent 
authorities of the two countries are to consult with each other 
if necessary. The proposed treaty's saving clause retaining 
full taxing jurisdiction in the country of residence or 
citizenship does not apply in the case of such adjustments. 
Accordingly, internal statute of limitations provisions do not 
prevent the allowance of appropriate correlative adjustments.
    This article does not replace the internal law provisions 
that permit adjustments between related parties when necessary 
in order to prevent evasion of taxes or clearly to reflect the 
income. Adjustments are permitted under internal law provisions 
even if such adjustments are different from, or go beyond, the 
adjustments authorized by this article, provided that such 
adjustments are consistent with the general principles of this 
article permitting adjustments to reflect arm's-length terms.
Article 10. Dividends
            Internal taxation rules
United States
    The United States generally imposes a 30-percent tax on the 
gross amount of U.S.-source dividends paid to nonresident alien 
individuals and foreign corporations. The 30-percent tax does 
not apply if the foreign recipient is engaged in a trade or 
business in the United States and the dividends are effectively 
connected with that trade or business. In such a case, the 
foreign recipient is subject to U.S. tax on such dividends on a 
net basis at graduated rates in the same manner that a U.S. 
person would be taxed.
    Under U.S. law, the term dividend generally means any 
distribution of property made by a corporation to its 
shareholders, either from accumulated earnings and profits or 
current earnings and profits. However, liquidating 
distributions generally are treated as payments in exchange for 
stock and thus are not subject to the 30-percent withholding 
tax described above (see discussion of capital gains in 
connection with Article 13 below).
    Dividends paid by a U.S. corporation generally are U.S.-
source income. Also treated as U.S.-source dividends for this 
purpose are portions of certain dividends paid by a foreign 
corporation that conducts a U.S. trade or business. The U.S. 
30-percent withholding tax imposed on the U.S.-source portion 
of the dividends paid by a foreign corporation is referred to 
as the ``second-level'' withholding tax. This second-level 
withholding tax is imposed only if a treaty prevents 
application of the statutory branch profits tax.
    In general, corporations are not entitled under U.S. law to 
a deduction for dividends paid. Thus, the withholding tax on 
dividends theoretically represents imposition of a second level 
of tax on corporate taxable income. Treaty reductions of this 
tax reflect the view that where the United States already 
imposes corporate-level tax on the earnings of a U.S. 
corporation, a 30-percent withholding rate may represent an 
excessive level of source country taxation. Moreover, the 
reduced rate of tax often applied by treaty to dividends paid 
to direct investors reflects the view that the source country 
tax on payments of profits to a substantial foreign corporate 
shareholder may properly be reduced further to avoid double 
corporate-level taxation and to facilitate international 
investment.
    A real estate investment trust (``REIT'') is a corporation, 
trust, or association that is subject to the regular corporate 
income tax, but that receives a deduction for dividends paid to 
its shareholders if certain conditions are met. In order to 
qualify for the deduction for dividends paid, a REIT must 
distribute most of its income. Thus, a REIT is treated, in 
essence, as a conduit for federal income tax purposes. Because 
a REIT is taxable as a U.S. corporation, a distribution of its 
earnings is treated as a dividend rather than income of the 
same type as the underlying earnings. Such distributions are 
subject to the U.S. 30-percent withholding tax when paid to 
foreign owners.
    A REIT is organized to allow persons to diversify ownership 
in primarily passive real estate investments. As such, the 
principal income of a REIT often is rentals from real estate 
holdings. Like dividends, U.S.-source rental income of foreign 
persons generally is subject to the 30-percent withholding tax 
(unless the recipient makes an election to have such rental 
income taxed in the United States on a net basis at the regular 
graduated rates). Unlike the withholding tax on dividends, 
however, the withholding tax on rental income generally is not 
reduced in U.S. income tax treaties.
    U.S. internal law also generally treats a regulated 
investment company (``RIC'') as both a corporation and a 
conduit for income tax purposes. The purpose of a RIC is to 
allow investors to hold a diversified portfolio of securities. 
Thus, the holder of stock in a RIC may be characterized as a 
portfolio investor in the stock held by the RIC, regardless of 
the proportion of the RIC's stock owned by the dividend 
recipient.
    A foreign corporation engaged in the conduct of a trade or 
business in the United States is subject to a flat 30-percent 
branch profits tax on its ``dividend equivalent amount.'' The 
dividend equivalent amount is the corporation's earnings and 
profits which are attributable to its income that is 
effectively connected with its U.S. trade or business, 
decreased by the amount of such earnings that are reinvested in 
business assets located in the United States (or used to reduce 
liabilities of the U.S. business), and increased by any such 
previously reinvested earnings that are withdrawn from 
investment in the U.S. business. The dividend equivalent amount 
is limited by (among other things) aggregate earnings and 
profits accumulated in taxable years beginning after December 
31, 1986.
Estonia
    Estonia generally imposes a withholding tax on dividend 
payments to nonresident shareholders owning less than 25 
percent of the paying company at a rate of 26 percent. 
Shareholders owning at least 25 percent of the paying company 
are not subject to withholding tax on dividends received. 
Estonia does not impose a withholding tax with respect to 
earnings of an Estonian branch of a nonresident corporation.
            Proposed treaty limitations on internal law
    Under the proposed treaty, dividends paid by a resident of 
a treaty country to a resident of the other country may be 
taxed in such other country. Dividends paid by a resident of a 
treaty country and beneficially owned by a resident of the 
other country may also be taxed by the country in which the 
payor is resident, but the rate of such tax is limited. Under 
the proposed treaty, source country taxation (i.e., taxation by 
the country in which the payor is resident) generally is 
limited to 5 percent of the gross amount of the dividend if the 
beneficial owner of the dividend is a company which owns at 
least 10 percent of the voting shares of the payor company. The 
source country dividend withholding tax generally is limited to 
15 percent of the gross amount of the dividends beneficially 
owned by residents of the other country in all other cases. The 
proposed treaty provides that these rules do not affect the 
taxation of the paying company on the profits out of which the 
dividends are paid.
    Under the proposed treaty, dividends paid by a U.S. RIC are 
eligible only for the limitation that applies the 15-percent 
rate, regardless of the beneficial owner's percentage ownership 
in such entity. Dividends paid by a U.S. REIT are not eligible 
for the 5-percent rate. Moreover, such REIT dividends are 
eligible for the 15-percent rate only if the dividend is 
beneficially owned by an individual who holds less than a 10-
percent interest in the U.S. REIT. Otherwise, dividends paid by 
a U.S. REIT are subject to U.S. taxation at the full 30-percent 
statutory rate.
    The proposed treaty defines a ``dividend'' to include 
income from shares or other rights, not being debt-claims, 
participating in profits, as well as income from other 
corporate rights which is subject to the same taxation 
treatment as income from shares by the internal laws of the 
treaty country of which the company making the distribution is 
a resident. The term further includes income from arrangements, 
including debt obligations, carrying the right to participate 
in profits, to the extent so characterized under the law of the 
treaty country in which the income arises.
    The proposed treaty's reduced rates of tax on dividends do 
not apply if the beneficial owner of the dividend carries on 
business through a permanent establishment in the source 
country and the dividends are attributable to the permanent 
establishment. Dividends attributable to a permanent 
establishment are taxed as business profits (Article 7). The 
proposed treaty's reduced rates of tax on dividends also do not 
apply if the beneficial owner of the dividend is a nonresident 
who performs independent personal services from a fixed base 
located in the source country and such dividends are 
attributable to the fixed base. In such a case, the dividends 
attributable to the fixed base are taxed as income from the 
performance of independent personal services (Article 14). 
Under the proposed treaty, these rules also apply if the 
permanent establishment or fixed base no longer exists when the 
dividends are paid but such dividends are attributable to the 
former permanent establishment or fixed base.
    The proposed treaty permits the imposition of a branch 
profits tax, but limits the rate of such tax to 5 percent. The 
branch profits tax may be imposed on a company that is a 
resident of a treaty country and has a permanent establishment 
in the other treaty country or is subject to tax in the other 
treaty country on a net basis on its income from immovable 
(real) property (Article 6) or capital gains (Article 13). Such 
tax may be imposed only on the portion of the business profits 
attributable to such permanent establishment, or the portion of 
such immovable (real) property income or capital gains, that 
represents the ``dividend equivalent amount.'' The Technical 
Explanation states that the term ``dividend equivalent amount'' 
has the same meaning that it has under Code section 884, as 
amended from time to time, provided the amendments are 
consistent with the purpose of the branch profits tax.
    Where a treaty country resident derives profits or income 
from the other treaty country, the proposed treaty provides 
that such other country cannot impose any tax on the dividends 
paid by such resident. Thus, the United States cannot impose 
its ``secondary'' withholding tax on dividends paid by an 
Estonian company out of its earnings and profits from the 
United States. An exception to this provision is provided in 
cases where the dividends are paid to a resident of the other 
treaty country or are attributable to a permanent establishment 
or a fixed base situated in such other treaty country (even if 
the dividends paid consist wholly or partly of profits arising 
in such other country).
Article 11. Interest
            Internal taxation rules
United States
    Subject to several exceptions (such as those for portfolio 
interest, bank deposit interest, and short-term original issue 
discount), the United States imposes a 30-percent withholding 
tax on U.S.-source interest paid to foreign persons under the 
same rules that apply to dividends. U.S.-source interest, for 
purposes of the 30-percent tax, generally is interest on the 
debt obligations of a U.S. person, other than a U.S. person 
that meets specified foreign business requirements. Also 
subject to the 30-percent tax is interest paid by the U.S. 
trade or business of a foreign corporation. A foreign 
corporation is subject to a branch-level excess interest tax 
with respect to certain ``excess interest'' of a U.S. trade or 
business of such corporation; under this rule, an amount equal 
to the excess of the interest deduction allowed with respect to 
the U.S. business over the interest paid by such business is 
treated as if paid by a U.S. corporation to a foreign parent 
and therefore is subject to the 30-percent withholding tax.
    Portfolio interest generally is defined as any U.S.-source 
interest that is not effectively connected with the conduct of 
a trade or business if such interest (1) is paid on an 
obligation that satisfies certain registration requirements or 
specified exceptions thereto and (2) is not received by a 10-
percent owner of the issuer of the obligation, taking into 
account shares owned by attribution. However, the portfolio 
interest exemption does not apply to certain contingent 
interest income.
    If an investor holds an interest in a fixed pool of real 
estate mortgages that is a real estate mortgage interest 
conduit (``REMIC''), the REMIC generally is treated for U.S. 
tax purposes as a pass-through entity and the investor is 
subject to U.S. tax on a portion of the REMIC's income (which, 
generally is interest income). If the investor holds a so-
called ``residual interest'' in the REMIC, the Code provides 
that a portion of the net income of the REMIC that is taxed in 
the hands of the investor--referred to as the investor's 
``excess inclusion''--may not be offset by any net operating 
losses of the investor, must be treated as unrelated business 
income if the investor is an organization subject to the 
unrelated business income tax, and is not eligible for any 
reduction in the 30-percent rate of withholding tax (by treaty 
or otherwise) that would apply if the investor were otherwise 
eligible for such a rate reduction.
Estonia
    Estonia does not impose a withholding tax on interest paid 
by resident banks. Other interest is taxed at the normal 
withholding tax rate of 26 percent.
            Proposed treaty limitations on internal law
    The proposed treaty provides that interest arising in one 
of the countries and beneficially owned by a resident of the 
other country generally may be taxed by both countries. This is 
contrary to the position of the U.S. model which provides for 
an exemption from source country tax for interest beneficially 
owned by a resident of the other country.
    The proposed treaty limits the rate of source country tax 
that may be imposed on interest income. Under the proposed 
treaty, if the beneficial owner of interest is a resident of 
the other country, the source country tax on such interest 
generally may not exceed 10 percent of the gross amount of such 
interest. This rate is higher than the U.S. model rate, which 
is zero.
    The proposed treaty provides for a complete exemption from 
source country withholding tax in the case of interest arising 
in a treaty country and (1) derived and beneficially owned by 
the Government of the other treaty country, including political 
subdivisions and local authorities thereof, (2) derived and 
beneficially owned by the Central Bank or any financial 
institution wholly owned by the Government, or (3) derived on 
loans guaranteed or insured by the Government, subdivision, 
authority, or institution. The Technical Explanation states 
that the second exemption refers to the Central Bank of Estonia 
or any Federal Reserve Bank of the United States and that the 
third exemption refers to loans guaranteed or insured by the 
U.S. Export-Import Bank and the Overseas Private Investment 
Corporation. A further complete exemption from source country 
withholding applies to interest beneficially owned by an 
enterprise of a treaty country that is paid with respect to 
indebtedness arising as a consequence of the sale on credit by 
an enterprise of the other treaty country of any merchandise, 
or industrial, commercial, or scientific equipment to an 
enterprise of the first treaty country, except where the sale 
on credit is between related persons.
    The proposed treaty provides two anti-abuse exceptions to 
the general source-country reduction in tax discussed above. 
The first exception relates to ``contingent interest'' 
payments. If interest is paid by a source-country resident to a 
resident of the other country and is determined by reference to 
(1) the receipts, sales, income, profits, or the cash flow of 
the debtor or a related person, (2) any change in the value of 
any property of the debtor or a related person, or (3) to any 
dividend, partnership distribution or similar payment made by 
the debtor to a related person, such interest may be taxed in 
the source country in accordance with its internal laws. 
However, if the beneficial owner is a resident of the other 
country, such interest may not be taxed at a rate exceeding 15 
percent (i.e., the rate prescribed in paragraph 2(b) of Article 
10 (Dividends)). The second anti-abuse exception provides that 
the reduction in and exemption from source country tax do not 
apply to excess inclusions with respect to a residual interest 
in a U.S. REMIC. Such income may be taxed in accordance with 
U.S. domestic law.
    The proposed treaty defines the term ``interest'' as income 
from debt claims of every kind, whether or not secured by a 
mortgage and whether or not carrying a right to participate in 
the debtor's profits. In particular, it includes income from 
government securities and from bonds or debentures, including 
premiums or prizes attaching to such securities, bonds, or 
debentures. The proposed treaty includes in the definition of 
interest any other income that is treated as interest by the 
domestic law of the country in which the income arises. Penalty 
charges for late payment are not regarded as interest for 
purposes of this article. The proposed treaty provides that the 
term ``interest'' does not include amounts treated as dividends 
under Article 10 (Dividends).
    The proposed treaty's reductions in source country tax on 
interest do not apply if the beneficial owner carries on 
business in the source country through a permanent 
establishment located in that country and the interest is 
attributable to that permanent establishment. In such an event, 
the interest is taxed as business profits (Article 7). The 
proposed treaty's reduced rates of tax on interest also do not 
apply if the beneficial owner is a treaty country resident who 
performs independent personal services from a fixed base 
located in the other treaty country and such interest is 
attributable to the fixed base. In such a case, the interest 
attributable to the fixed base is taxed as income from the 
performance of independent personal services (Article 14). 
These rules also apply if the permanent establishment or fixed 
base no longer exists when the interest is paid but such 
interest is attributable to the former permanent establishment 
or fixed base.
    The proposed treaty provides that interest is treated as 
arising in a treaty country if the payor is a resident of that 
country.4 If, however, the interest expense is borne 
by a permanent establishment or a fixed base, the interest will 
have as its source the country in which the permanent 
establishment or fixed base is located, regardless of the 
residence of the payor. Thus, for example, if a French resident 
has a permanent establishment in Estonia and that French 
resident incurs indebtedness to a U.S. person, the interest on 
which is borne by the Estonian permanent establishment, the 
interest would be treated as having its source in Estonia.
---------------------------------------------------------------------------
    \4\ This is consistent with the source rules of U.S. law, which 
provide as a general rule that interest income has as its source the 
country in which the payor is resident.
---------------------------------------------------------------------------
    The proposed treaty addresses the issue of non-arm's-length 
interest charges between related parties (or parties otherwise 
having a special relationship) by providing that the amount of 
interest for purposes of applying this article is the amount of 
interest that would have been agreed upon by the payor and the 
beneficial owner in the absence of the special relationship. 
Any amount of interest paid in excess of such amount is taxable 
according to the laws of each country, taking into account the 
other provisions of the proposed treaty. For example, excess 
interest paid by a subsidiary corporation to its parent 
corporation may be treated as a dividend under local law and 
thus be subject to the provisions of Article 10 (Dividends).
    The proposed treaty permits the United States to impose its 
branch level interest tax on an Estonian corporation. The base 
of this tax is the excess, if any, of (1) the interest 
deductible in computing the profits of the corporation that are 
subject to tax and either attributable to a permanent 
establishment or subject to tax under Article 6 (Income From 
Immovable (Real) Property) or Article 13 (Capital Gains) over 
(2) the interest paid by or from the permanent establishment or 
trade or business. Such excess interest will be deemed to arise 
in the United States and be beneficially owned by the Estonian 
corporation for purposes of applying the reduced witholding 
rates under this article.
Article 12. Royalties
            Internal taxation rules
United States
    Under the same system that applies to dividends and 
interest, the United States imposes a 30-percent withholding 
tax on U.S.-source royalties paid to foreign persons. U.S.-
source royalties include royalties for the use of or the right 
to use intangible property in the United States.
Estonia
    Estonia generally imposes a withholding tax on royalties 
paid to foreign corporations and nonresident individuals at a 
rate of 15 percent. However, rental payments, including 
payments for the use of industrial, commercial, or scientific 
equipment are taxed at a rate of 5 percent.
            Proposed treaty limitations on internal law
    The proposed treaty provides that royalties arising in a 
treaty country and beneficially owned by a resident of the 
other country may be taxed by that other country. In addition, 
the proposed treaty allows the country where the royalties 
arise (the ``source country'') to tax such royalties. However, 
if the beneficial owner of the royalties is a resident of the 
other country, the source country tax generally may not exceed 
10 percent of the gross royalties. This 10-percent rate is 
higher than the rate permitted under most U.S. treaties and the 
U.S. and OECD models. The U.S. and OECD models generally exempt 
royalties from source country taxation. The proposed treaty 
further provides that the source country tax on certain amounts 
treated as royalties may not exceed 5 percent of the gross 
royalties. This 5-percent limitation applies to payments of any 
kind in consideration for the use of industrial, commercial, or 
scientific equipment.
    For purposes of the proposed treaty, the term ``royalties'' 
means payments of any kind received as consideration for the 
use of, the right to use, or the sale (which is contingent on 
the productivity, use, or further disposition) of any copyright 
of literary, artistic, or scientific work (including computer 
software, cinematographic films and films or tapes and other 
means of image or sound reproduction for radio or television 
broadcasting), patent, trademark, design or model, plan, secret 
formula, or process. The term also includes consideration for 
the use of, or the right to use, industrial, commercial, or 
scientific equipment, or for information concerning industrial, 
commercial, or scientific experience. According to the 
Technical Explanation, it is understood that whether payments 
with respect to computer software are treated as royalties or 
as business profits will depend on the facts and circumstances 
of the particular transaction. The Technical Explanation also 
states that it is understood that payments with respect to 
transfers of ``shrink wrap'' computer software will be treated 
as business profits.
    The reduced rates of tax on royalties do not apply where 
the beneficial owner is an enterprise that carries on business 
through a permanent establishment in the source country, and 
the royalties are attributable to the permanent establishment. 
In that event, the royalties are taxed as business profits 
(Article 7). The proposed treaty's reduced rates of tax on 
royalties also do not apply if the beneficial owner is a treaty 
country resident who performs independent personal services 
from a fixed base located in the other treaty country and such 
royalties are attributable to the fixed base. In such a case, 
the royalties attributable to the fixed base are taxed as 
income from the performance of independent personal services 
(Article 14). These rules also apply if the permanent 
establishment or fixed base no longer exists when the royalties 
are paid but such royalties are attributable to the former 
permanent establishment or fixed base.
    The proposed treaty addresses the issue of non-arm's-length 
royalties between related parties (or parties otherwise having 
a special relationship) by providing that the amount of 
royalties for purposes of applying this article is the amount 
that would have been agreed upon by the payor and the 
beneficial owner in the absence of the special relationship. 
Any amount of royalties paid in excess of such amount is 
taxable according to the laws of each country, taking into 
account the other provisions of the proposed treaty. For 
example, excess royalties paid by a subsidiary corporation to 
its parent corporation may be treated as a dividend under local 
law and thus be subject to the provisions of Article 10 
(Dividends).
    The proposed treaty provides source rules for royalties 
which differ, in part, from those provided under U.S. internal 
law. Royalties are deemed to arise within a country if the 
payor is a resident of that country. If, however, the royalty 
expense is borne by a permanent establishment or fixed base 
that the payor has in Estonia or the United States, the royalty 
has as its source the country in which the permanent 
establishment or fixed base is located, regardless of the 
residence of the payor. Thus, for example, if a French resident 
has a permanent establishment in Estonia and that French 
resident pays a royalty to a U.S. person which is attributable 
to the Estonian permanent establishment, then the royalty would 
be treated as having its source in Estonia. In addition, the 
proposed treaty provides that where the preceding rules do not 
operate to deem royalties as arising in either the United 
States or Estonia, and the royalties relate to the use of, or 
the right to use, a right or property in one of those 
countries, the royalties are deemed to arise in that country 
and not in the country of which the payor is resident.
    Finally, notwithstanding the sourcing rules above, payments 
received for the use of containers (including trailers, barges, 
and related equipment for the transport of containers) used in 
the transportation of passengers or property (other than 
transportation solely between places in the same treaty 
country) and not dealt with in Article 8 (Shipping and Air 
Transport) will be deemed to arise in neither treaty country.
Article 13. Capital Gains
            Internal taxation rules
United States
    Generally, gain realized by a nonresident alien or a 
foreign corporation from the sale of a capital asset is not 
subject to U.S. tax unless the gain is effectively connected 
with the conduct of a U.S. trade or business or, in the case of 
a nonresident alien, he or she is physically present in the 
United States for at least 183 days in the taxable year. A 
nonresident alien or foreign corporation is subject to U.S. tax 
on gain from the sale of a U.S. real property interest as if 
the gain were effectively connected with a trade or business 
conducted in the United States. ``U.S. real property 
interests'' include interests in certain corporations if at 
least 50 percent of the assets of the corporation consist of 
U.S. real property.
Estonia
    Gains derived by nonresidents from the disposal of Estonian 
immovable and movable property are subject to the normal 
withholding tax of 26 percent. Immovable property includes 
buildings and apartments, while movable property includes 
shares and other securities issued by resident corporations.
            Proposed treaty limitations on internal law
    The proposed treaty specifies rules governing when a 
country may tax gains from the alienation of property by a 
resident of the other country. The rules are generally 
consistent with those contained in the U.S. model.
    Under the proposed treaty, gains derived by a resident of 
one treaty country from the alienation of immovable (real) 
property situated in the other country may be taxed in the 
country where the property is situated. For the purposes of 
this article, immovable (real) property in the other country 
includes (1) immovable (real) property as defined in Article 6 
(Income from Immovable (Real) Property) situated in the other 
country, (2) shares of stock of a company the property of which 
consists at least 50 percent of immovable (real) property 
situated in the other country, and (3) an interest in a 
partnership, trust, or estate, to the extent that its assets 
consist of immovable (real) property situated in the other 
country. In the United States, the term includes a ``United 
States real property interest.''
    Gains from the alienation of movable property that forms a 
part of the business property of a permanent establishment 
which an enterprise of one country has in the other country, 
gains from the alienation of movable property pertaining to a 
fixed base which is available to a resident of one country in 
the other country for the purpose of performing independent 
personal services, and gains from the alienation of such a 
permanent establishment (alone or with the whole enterprise) or 
such a fixed base, may be taxed in that other country. This 
rule also applies if the permanent establishment or fixed base 
no longer exists when the gains are recognized but such gains 
relate to the former permanent establishment or fixed base.
    Gains derived by an enterprise of a treaty country from the 
alienation of ships, aircraft, or containers operated in 
international traffic (or movable property pertaining to the 
operation or use of ships, aircraft, or containers) are taxable 
only in such country.
    Payments that satisfy the definition of royalties are 
taxable under the proposed treaty only in accordance with 
Article 12 (Royalties). The Technical Explanation states that 
this rule makes clear that this article does not apply to gains 
from the sale of any right or property that would give rise to 
royalties, to the extent that such gains are contingent on the 
productivity, use, or further disposition thereof.
    Gains from the alienation of any property other than that 
discussed above is taxable under the proposed treaty only in 
the country where the person disposing of the property is 
resident.
Article 14. Independent Personal Services
            Internal taxation rules
United States
    The United States taxes the income of a nonresident alien 
individual at the regular graduated rates if the income is 
effectively connected with the conduct of a trade or business 
in the United States by the individual. The performance of 
personal services within the United States may constitute a 
trade or business within the United States.
    Under the Code, the income of a nonresident alien 
individual from the performance of personal services in the 
United States is excluded from U.S.-source income, and 
therefore is not taxed by the United States in the absence of a 
U.S. trade or business, if the following criteria are met: (1) 
the individual is not in the United States for over 90 days 
during the taxable year, (2) the compensation does not exceed 
$3,000, and (3) the services are performed as an employee of, 
or under a contract with, a foreign person not engaged in a 
trade or business in the United States, or are performed for a 
foreign office or place of business of a U.S. person.
Estonia
    Payments to nonresident individuals for market research, 
consulting, and intermediation are subject to withholding tax 
at a rate of 15 percent. Payments to nonresident artistes and 
sportsmen are subject to withholding tax at a rate of 15 
percent. Most other payments to foreign persons are subject to 
the normal 26 percent withholding tax rate.
            Proposed treaty limitations on internal law
    The proposed treaty limits the right of a country to tax 
income from the performance of personal services by a resident 
of the other country. Under the proposed treaty, income from 
the performance of independent personal services (i.e., 
services performed as an independent contractor, not as an 
employee) is treated separately from income from the 
performance of dependent personal services.
    Under the proposed treaty, income in respect of 
professional services or other activities of an independent 
character performed in one country by a resident of the other 
country is exempt from tax in the country where the services 
are performed (the source country) unless the individual 
performing the services has a fixed base regularly available to 
him or her in that country for the purpose of performing the 
services.5 In that case, the source country is 
permitted to tax only that portion of the individual's income 
which is attributable to the fixed base. This rule also applies 
where the income is received after the fixed base is no longer 
in existence. An individual will be deemed to have a fixed base 
regularly available in the other country if he or she stays in 
the source country for a period or periods exceeding 183 days 
within a twelve-month period, commencing or ending in the 
taxable year concerned. This latter rule represents a departure 
from the U.S. model, which would permit the source country to 
tax the income from independent personal services of a resident 
of the other country only if the income is attributable to a 
fixed base regularly available to the individual in the source 
country for the purpose of performing the activities.
---------------------------------------------------------------------------
    \5\ According to the Technical Explanation, it is understood that 
the concept of a fixed base is analogous to the concept of a permanent 
establishment.
---------------------------------------------------------------------------
    Under the proposed treaty, income that is taxable in the 
other country pursuant to this article will be determined in 
the same way as professional services income (or other income 
from activities of an independent character) of a resident of 
the other country. However, the proposed treaty does not 
require a treaty country to grant to residents of the other 
country any personal allowances, reliefs, and reductions for 
taxation purposes on account of civil status or family 
responsibilities that it grants to its own residents.
    The term ``professional services'' includes especially 
independent scientific, literary, artistic, educational, or 
teaching activities as well as the independent activities of 
physicians, lawyers, engineers, architects, dentists, and 
accountants.
Article 15. Dependent Personal Services
    Under the proposed treaty, wages, salaries, and other 
remuneration derived from services performed as an employee in 
one country (the source country) by a resident of the other 
country are taxable only by the country of residence if three 
requirements are met: (1) the individual must be present in the 
source country for not more than 183 days in any twelve-month 
period; (2) the individual is paid by, or on behalf of, an 
employer who is not a resident of the source country; and (3) 
the compensation must not be borne by a permanent establishment 
or fixed base of the employer in the source country. These 
limitations on source country taxation are the same as the 
rules of the U.S. model and the OECD model.
    The proposed treaty contains a special rule that permits 
remuneration derived by a resident of one country in respect of 
employment as a member of the regular complement (including the 
crew) of a ship or aircraft operated in international traffic 
by an enterprise of the other country to be taxed in that other 
country. A similar rule is included in the OECD model. U.S. 
internal law does not impose tax on such income of a 
nonresident alien, even if such person is employed by a U.S. 
entity.
    This article is subject to the provisions of the separate 
articles covering directors' fees (Article 16), pensions, 
social security, annuities, alimony, and child support (Article 
18), government service income (Article 19), and income of 
students, trainees, and researchers (Article 20).
Article 16. Directors' Fees
    Under the proposed treaty, directors' fees and other 
compensation derived by a resident of one country in his or her 
capacity as a member of the board of directors (or any similar 
organ) of a company that is a resident of that other country is 
taxable in that other country. The provision is similar to the 
corresponding rule in the OECD model. Under this rule, the 
country in which the company is resident may tax all of the 
remuneration paid to nonresident board members, regardless of 
where the services are performed. The U.S. model contains a 
different rule, which provides that the country of the 
company's residence may tax nonresident directors, but only 
with respect to remuneration for services performed in that 
country.
Article 17. Artistes and Sportsmen
    Like the U.S. and OECD models, the proposed treaty contains 
a separate set of rules that apply to the taxation of income 
earned by entertainers (such as theater, motion picture, radio, 
or television ``artistes'' or musicians) and sportsmen. These 
rules apply notwithstanding the other provisions dealing with 
the taxation of income from personal services (Articles 14 and 
15) and are intended, in part, to prevent entertainers and 
athletes from using the treaty to avoid paying any tax on their 
income earned in one of the countries.
    Under the proposed treaty, income derived by an entertainer 
or sportsman who is a resident of one country from his or her 
personal activities as such in the other country may be taxed 
in the other country if the amount of the gross receipts 
derived by him or her from such activities exceeds $20,000 or 
its equivalent in Estonian kroons. The $20,000 threshold 
includes reimbursed expenses. Under this rule, if an Estonian 
entertainer or sportsman maintains no fixed base in the United 
States and performs (as an independent contractor) for one day 
of a taxable year in the United States for total compensation 
of $10,000, the United States could not tax that income. If, 
however, that entertainer's or sportsman's total compensation 
were $30,000, the full amount would be subject to U.S. tax.
    The proposed treaty provides that where income in respect 
of activities exercised by an entertainer or sportsman in his 
or her capacity as such accrues not to the entertainer or 
sportsman but to another person, that income is taxable by the 
country in which the activities are exercised unless it is 
established that neither the entertainer or sportsman nor 
persons related to him or her participated directly or 
indirectly in the profits of that other person in any manner, 
including the receipt of deferred remuneration, bonuses, fees, 
dividends, partnership distributions, or other distributions. 
This provision applies notwithstanding the business profits and 
personal service articles (Articles 7, 14, and 15). This 
provision prevents highly-paid entertainers and athletes from 
avoiding tax in the country in which they perform by, for 
example, routing the compensation for their services through a 
third entity such as a personal holding company or a trust 
located in a country that would not tax the income.
    The proposed treaty provides that these rules do not apply 
to income derived from activities performed in a country by 
entertainers or sportsmen if such activities are wholly or 
mainly supported by public funds of the other country or a 
political subdivision or a local authority thereof. In such a 
case, the income is taxable only in the country in which the 
entertainer or sportsman is a resident.
Article 18. Pensions, Social Security, Annuities, Alimony, and Child 
        Support
    Under the proposed treaty, pensions and other similar 
remuneration derived and beneficially owned by a resident of 
either country in consideration of past employment, whether 
paid periodically or in a lump sum, is subject to tax only in 
the recipient's country of residence. However, the amount of 
any such pension or remuneration that would be excluded from 
taxable income in the other country if the recipient were a 
resident thereof will be exempt from taxation in the first-
mentioned country of residence. These rules are subject to the 
provisions of Article 19 (Government Service) with respect to 
pensions.
    The proposed treaty provides that payments made by one of 
the countries under the provisions of the social security or 
similar legislation of the country to a resident of the other 
country or to a U.S. citizen are taxable only by the source 
country, and not by the country of residence. The Technical 
Explanation states that the term ``similar legislation'' is 
intended to include U.S. tier 1 Railroad Retirement benefits. 
Consistent with the U.S. model, this rule with respect to 
social security payments is an exception to the proposed 
treaty's saving clause.
    The proposed treaty provides that annuities are taxed only 
in the country of residence of the individual who beneficially 
owns and derives them. The term ``annuities'' is defined for 
purposes of this provision as a stated sum (other than a 
pension) paid periodically at stated times during a specified 
number of years, under an obligation to make the payments in 
return for adequate and full consideration (other than services 
rendered).
    Under the proposed treaty, alimony paid by a resident of 
one country, and deductible therein, to a resident of the other 
country will be taxable only in the other country. For this 
purpose, the term ``alimony'' means periodic payments made 
pursuant to a written separation agreement or a decree of 
divorce, separate maintenance, or compulsory support, which 
payments are taxable to the recipient under the laws of the 
country of residence. However, periodic payments (other than 
alimony) for the support of a minor child made pursuant to a 
written separation agreement or a decree of divorce, separate 
maintenance, or compulsory support, paid by a resident of one 
country to a resident of the other country, are not taxable in 
the other country.
Article 19. Government Service
    Under the proposed treaty, remuneration, other than a 
pension, paid by, or out of the public funds of a treaty 
country or a political subdivision or local authority thereof 
to an individual in respect of dependent personal services 
rendered to that country (or subdivision or authority) in the 
discharge of functions of a governmental nature generally is 
taxable only by that country. Such remuneration is taxable only 
in the other country, however, if the services are rendered in 
that other country by an individual who is a resident of that 
country and who (1) is also a national of that country or (2) 
did not become a resident of that country solely for the 
purpose of rendering the services. This treatment is similar to 
the rules under the U.S. and OECD models.
    The proposed treaty further provides that any pension paid 
by, or out of the public funds of one of the countries (or a 
political subdivision or local authority thereof) to an 
individual in respect of services rendered to that country (or 
subdivision or authority) in the discharge of functions of a 
governmental nature is taxable only by that country. Such a 
pension is taxable only by the other country, however, if the 
individual is a resident and national of that other country. 
Social security benefits in respect of government services are 
subject to Article 18 (Pensions, Social Security, Annuities, 
Alimony, and Child Support) and not this article. This 
treatment is similar to the OECD model, but differs from the 
U.S. model, in that it applies only to government employees and 
not to independent contractors engaged by governments to 
perform services for them.
    The Technical Explanation states that the phrase 
``functions of a governmental nature'' is generally understood 
to encompass functions traditionally carried on by a 
government. It generally would not include functions that 
commonly are found in the private sector (e.g., education, 
health care, utilities). Rather, it is limited to functions 
that generally are carried on solely by the government (e.g., 
military, diplomatic service, tax administrators) and 
activities that directly support the carrying out of those 
functions.
    The provisions described in the foregoing paragraphs are 
exceptions to the proposed treaty's saving clause for 
individuals who are neither citizens nor permanent residents of 
the country where the services are performed. Thus, for 
example, a resident of Estonia, who in the course of performing 
functions of a governmental nature becomes a resident of the 
United States (but not a permanent resident), would be entitled 
to the benefits of this article. However, an individual who 
receives a pension paid by the Government of Estonia in respect 
of services rendered to that Government is taxable on that 
pension only in Estonia unless the individual is a U.S. citizen 
or acquires a U.S. green card.
Article 20. Students, Trainees and Researchers
    Under the proposed treaty, a resident of one country who 
visits the other country (the host country) for the primary 
purpose of studying at a university or other accredited 
educational institution, securing training in a professional 
specialty, or studying or doing research as the recipient of a 
grant from a governmental, religious, charitable, scientific, 
literary, or educational organization will be exempt from tax 
in the host country with respect to certain items of income for 
a period not exceeding five years from the date of arrival in 
the host country. The items of income that are eligible for 
exemption from host country taxation are: (1) payments from 
abroad for maintenance, education, study, research, or 
training; (2) grants, allowances, or awards; and (3) income 
from personal services performed in the other country to the 
extent of $5,000, or its equivalent in Estonian kroons.
    Under the proposed treaty, an individual resident of one 
country who visits the other country as an employee of, or 
under contract with, a resident of the first country for the 
primary purpose of acquiring technical, professional, or 
business experience from a person other than his employer or 
studying at a university or other accredited educational 
institution in the other country is exempt from tax by the 
other country for a period of 12 consecutive months on 
compensation for personal services in an aggregate amount not 
exceeding $8,000 or its equivalent in Estonian kroons.
    Under the proposed treaty, an individual resident of one 
country who is temporarily present in the other country for a 
period not exceeding one year, as a participant in a program 
sponsored by the Government of the other country, for the 
primary purpose of training, research, or study is exempt from 
tax by the other country on compensation for personal services 
performed in the other country in respect of such training, 
research, or study, in an aggregate amount not exceeding 
$10,000 or its equivalent in Estonian kroons.
    The proposed treaty provides that this article does not 
apply to income from research undertaken not in the public 
interest, but primarily for the private benefit of a specific 
person or persons.
    This article of the proposed treaty is an exception from 
the saving clause in the case of persons who are neither 
citizens nor lawful permanent residents of the host country.
Article 21. Other Income
    This article is a catch-all provision intended to cover 
items of income not specifically covered in other articles, and 
to assign the right to tax income from third countries to 
either the United States or Estonia. As a general rule, items 
of income not otherwise dealt with in the proposed treaty which 
are beneficially owned by residents of one of the countries, 
wherever arising, are taxable only in the country of residence. 
This rule is similar to the rules in the U.S. and OECD models.
    This rule, for example, gives the United States the sole 
right under the proposed treaty to tax income derived from 
sources in a third country and paid to a U.S. resident. This 
article is subject to the saving clause, so U.S. citizens who 
are residents of Estonia will continue to be taxable by the 
United States on their third-country income.
    The general rule just stated does not apply to income 
(other than income from immovable (real) property as defined in 
Article 6) if the beneficial owner of the income is a resident 
of one country and carries on business in the other country 
through a permanent establishment, or performs independent 
personal services in the other country from a fixed base, and 
the income is attributable to such permanent establishment or 
fixed base. In such a case, the provisions of Article 7 
(Business Profits) or Article 14 (Independent Personal 
Services), as the case may be, will apply. Such exception also 
applies where the income is received after the permanent 
establishment or fixed base is no longer in existence, but the 
income is attributable to the former permanent establishment or 
fixed base.
    The proposed treaty provides that notwithstanding the 
foregoing rules, items of income of a resident of a country not 
dealt with in the other articles of the proposed treaty and 
arising in the other country, may also be taxed by that other 
country. This rule, which is not contained in the U.S. and OECD 
models, is similar to the corresponding rule in the U.N. model.
Article 22. Limitation on Benefits
            In general
    The proposed treaty contains a provision generally intended 
to limit the indirect use of the proposed treaty by persons who 
are not entitled to its benefits by reason of residence in the 
United States or Estonia.
    The proposed treaty is intended to limit double taxation 
caused by the interaction of the tax systems of the United 
States and Estonia as they apply to residents of the two 
countries. At times, however, residents of third countries 
attempt to use a treaty. This use is known as ``treaty 
shopping,'' which refers to the situation where a person who is 
not a resident of either treaty country seeks certain benefits 
under the income tax treaty between the two countries. Under 
certain circumstances, and without appropriate safeguards, the 
third-country resident may be able to secure these benefits 
indirectly by establishing a corporation or other entity in one 
of the treaty countries, which entity, as a resident of that 
country, is entitled to the benefits of the treaty. 
Additionally, it may be possible for the third-country resident 
to reduce the income base of the treaty country resident by 
having the latter pay out interest, royalties, or other amounts 
under favorable conditions either through relaxed tax 
provisions in the distributing country or by passing the funds 
through other treaty countries until the funds can be 
repatriated under favorable terms.
    The proposed anti-treaty shopping article provides that a 
resident of either Estonia or the United States will be 
entitled to the benefits of the proposed treaty only if the 
resident is a ``qualified resident.'' A resident is a qualified 
resident for a taxable year only if it:
          (1) is an individual;
          (2) is a treaty country, a political subdivision or 
        a local authority thereof, or an agency or 
        instrumentality of such country, subdivision, or 
        authority;
          (3) is a company, trust, or estate that satisfies 
        both aspects of an ownership and base erosion test;
          (4) is a person that satisfies a public company 
        test;
          (5) is a person that is owned by certain public 
        companies;
          (6) is a tax-exempt organization or pension fund 
        that satisfies an ownership test; or
          (7) is a United States regulated investment company, 
        or a similar entity in Estonia as may be agreed by the 
        competent authorities of the treaty countries.
    Alternatively, a resident that is not a qualified resident 
may claim treaty benefits for particular items of income if it 
satisfies an active business test. In addition, a resident of 
either country that is not a qualified resident may be entitled 
to the benefits of the proposed treaty if the competent 
authority of the country in which the income in question arises 
so determines.
            Individuals
    An individual resident of a treaty country is entitled to 
the benefits of the proposed treaty.
            Governments
    Under the proposed treaty, the two countries, their 
political subdivisions or local authorities, or agencies or 
instrumentalities of the countries or their political 
subdivisions or local authorities, are entitled to all treaty 
benefits.
            Ownership and base erosion test
    Under the proposed treaty, an entity that is resident in 
one of the countries is entitled to treaty benefits if it 
satisfies an ownership test and a base erosion test. For this 
purpose, an entity includes a company, as well as a trust or an 
estate. Under the ownership test, at least 50 percent of the 
beneficial interests in an entity (in the case of a company, at 
least 50 percent of each class of the company's shares) must be 
beneficially owned, directly or indirectly, on at least half 
the days of the taxable year by qualified residents (as 
described above) or U.S. citizens, provided that each 
intermediate owner used to satisfy the control requirement is a 
resident of Estonia or the United States. This rule could, for 
example, deny the benefits of the reduced U.S. withholding tax 
rates on dividends and royalties paid to an Estonian company 
that is controlled by individual residents of a third country.
    In addition, the base erosion test is satisfied only if no 
more than 50 percent of the gross income of the company (or the 
payments in the case of a trust or estate) is paid or accrued 
during the taxable year to persons (1) that are neither 
qualified residents nor U.S. citizens, and (2) that are 
deductible for income tax purposes in the entity's country of 
residence (but not including arm's length payments in the 
ordinary course of business for services or tangible property). 
This rule is intended to prevent an entity from distributing 
most of its income, in the form of deductible items such as 
interest, royalties, service fees, or other amounts to persons 
not entitled to benefits under the proposed treaty.
            Public company tests
    The public company test is satisfied if at least 50 percent 
of the value of each class of the beneficial interests in a 
person are substantially and regularly traded on a recognized 
stock exchange. Similarly, treaty benefits are available to a 
person that is at least 50-percent owned, directly or 
indirectly, by a person that satisfies the public company test 
previously described, provided that each intermediate owner 
used to satisfy the control requirement is a resident of 
Estonia or the United States.
    The Technical Explanation states that interests are 
considered to be ``substantially and regularly traded'' if two 
requirements are met: trades in the class of interests are made 
in more than de minimis quantities on at least 60 days during 
the taxable year, and the aggregate number of interests in the 
class traded during the year is at least 6 percent of the 
average number of interests outstanding during the year.
    Under the proposed treaty, the term ``recognized stock 
exchange'' means: (1) the NASDAQ System owned by the National 
Association of Securities Dealers, Inc. and any stock exchange 
registered with the U.S. Securities and Exchange Commission as 
a national securities exchange under the U.S. Securities 
Exchange Act of 1934; (2) the Tallinn Stock Exchange (Tallinna 
Vaartpaberibors) and (3) any other stock exchange agreed upon 
by the competent authorities of the countries.
            Tax-exempt entities
    A legal person organized under the laws of either treaty 
country and that is generally exempt from tax in that country 
is entitled to the benefits of the proposed treaty if it is 
established and maintained in a treaty country either 
exclusively for a religious, charitable, educational, 
scientific, or other similar purpose; or to provide pensions or 
other similar benefits to employees pursuant to a plan. In 
addition, more than half of the beneficiaries, members, or 
participants, if any, in such person must be qualified 
residents.
            Regulated investment companies
    A United States regulated investment company, or a similar 
entity in Estonia as may be agreed by the competent authorities 
of the treaty countries, is entitled to the benefits of the 
proposed treaty.
            Active business test
    Under the active business test, treaty benefits are 
available to a resident of a country with respect to an item of 
income derived from the other country if: (1) the resident is 
engaged in the active conduct of a trade or business in the 
country of residence; (2) the income is connected with or 
incidental to that trade or business; and (3) the trade or 
business is substantial in relation to the activity in the 
other country generating the income. However, the business of 
making or managing investments does not constitute an active 
trade or business (and benefits therefore may be denied), 
unless such activity is a banking, insurance, or securities 
activity conducted by a bank, insurance company, or registered 
securities dealer.
    The determination of whether a trade or business is 
substantial is determined based on all facts and circumstances. 
However, the proposed treaty provides a safe harbor under which 
the trade or business of the resident is considered to be 
substantial if certain attributes of the residence-country 
business exceed a threshold fraction of the corresponding 
attributes of the trade or business located in the source 
country that produces the source-country income. Under this 
safe harbor, the attributes are assets, gross income, and 
payroll expense. To satisfy the safe harbor, the level of each 
such attribute in the active conduct of the trade or business 
by the resident (and any related parties) in the residence 
country, and the level of each such attribute in the trade or 
business producing the income in the source country, is 
measured for the prior year or for the prior three years. For 
each separate attribute, the ratio of the residence country 
level to the source country level is computed.
    In general, the safe harbor is satisfied if, for the prior 
year or for the average of the three prior years, the average 
of the three ratios exceeds 10 percent, and each ratio 
separately is at least 7.5 percent. These rules are similar to 
those contained in the U.S. model. The Technical Explanation 
states that if a resident owns less than 100 percent of an 
activity in either country, the resident will only include its 
proportionate interest in such activity for purpose of 
computing the safe harbor percentages.
    The proposed treaty provides that income is derived in 
connection with a trade or business if the activity in the 
other country generating the income is a line of business that 
forms a part of or is complementary to the trade or business. 
The Technical Explanation states that a business activity 
generally is considered to ``form a part of'' a business 
activity conducted in the other country if the two activities 
involve the design, manufacture, or sale of the same products 
or type of products, or the provision of similar services. The 
Technical Explanation further provides that in order for two 
activities to be considered to be ``complementary,'' the 
activities need not relate to the same types of products or 
services, but they should be part of the same overall industry 
and be related in the sense that the success or failure of one 
activity will tend to result in success or failure for the 
other. Under the proposed treaty, income is incidental to a 
trade or business if it facilitates the conduct of the trade or 
business in the other country.
    The term ``active conduct of a trade or business'' is not 
specifically defined in the proposed treaty. However, as 
provided in Article 3 (General Definitions), undefined terms 
are to have the meaning which they have under the laws of the 
country applying the proposed treaty. In this regard, the 
Technical Explanation states that the U.S. competent authority 
will refer to the regulations issued under Code section 367(a) 
to define an active trade or business.
            Other matters
    Under the proposed treaty, the competent authorities of the 
treaty countries will consult together with a view to 
developing a commonly agreed application of the provisions of 
this article, including the publication of public guidance. The 
competent authorities will, in accordance with the provisions 
of Article 26 (Exchange of Information and Administrative 
Assistance), exchange such information as is necessary for 
carrying out the provisions of this article.
Article 23. Relief From Double Taxation
            Internal taxation rules
United States
    The United States taxes the worldwide income of its 
citizens and residents. It attempts unilaterally to mitigate 
double taxation generally by allowing taxpayers to credit the 
foreign income taxes that they pay against U.S. tax imposed on 
their foreign-source income. An indirect or ``deemed-paid'' 
credit is also provided. Under this rule, a U.S. corporation 
that owns 10 percent or more of the voting stock of a foreign 
corporation and that receives a dividend from the foreign 
corporation (or an inclusion of the foreign corporation's 
income) is deemed to have paid a portion of the foreign income 
taxes paid (or deemed paid) by the foreign corporation on its 
earnings. The taxes deemed paid by the U.S. corporation are 
included in its total foreign taxes paid for the year the 
dividend is received.
Estonia
    Estonian resident taxpayers are allowed a credit for taxes 
paid to foreign countries, but not in excess of the Estonian 
tax on such income. The limitation is calculated on a per 
country basis.
            Proposed treaty limitations on internal law
    One of the principal purposes for entering into an income 
tax treaty is to limit double taxation of income earned by a 
resident of one of the countries that may be taxed by the other 
country. Unilateral efforts to limit double taxation are 
imperfect. Because of differences in rules as to when a person 
may be taxed on business income, a business may be taxed by two 
countries as if it were engaged in business in both countries. 
Also, a corporation or individual may be treated as a resident 
of more than one country and be taxed on a worldwide basis by 
both.
    Part of the double tax problem is dealt with in other 
articles of the proposed treaty that limit the right of a 
source country to tax income. This article provides further 
relief where both Estonia and the United States otherwise still 
tax the same item of income. This article is not subject to the 
saving clause, so that the country of citizenship or residence 
will waive its overriding taxing jurisdiction to the extent 
that this article applies.
    The proposed treaty generally provides that the United 
States will allow a U.S. citizen or resident a foreign tax 
credit for the income taxes imposed by Estonia. The proposed 
treaty also requires the United States to allow a deemed-paid 
credit, with respect to Estonian income tax, to any U.S. 
company that receives dividends from an Estonian company if the 
U.S. company owns 10 percent or more of the voting stock of 
such Estonian company. The credit generally is to be computed 
in accordance with the provisions and subject to the 
limitations of U.S. law (as such law may be amended from time 
to time without changing the general principles of the proposed 
treaty provisions). This provision is similar to those found in 
the U.S. model and many U.S. treaties.
    The proposed treaty generally provides that, unless 
domestic law grants a more favorable treatment, Estonia will 
allow its residents, who derive income that may be subject to 
tax in the United States and Estonia, a deduction against 
Estonian income tax for the U.S. incomes taxes paid (other than 
any such tax imposed by reason of U.S. citizenship). The 
deduction cannot exceed the pre-credit amount of Estonian 
income tax attributable to the income that may be taxed in the 
United States. For purposes of this rule, the amount of tax 
available for deduction includes the appropriate portion of the 
taxes paid in the United States on the underlying profits of 
the company out of which the dividend is paid, but only when 
the Estonian resident receives the dividend from a U.S. 
resident company in which it owns at least 10 percent of the 
voting power.
    For purposes of allowing relief from double taxation under 
this article, the proposed treaty provides a source rule for 
determining the country in which an item of income is deemed to 
have arisen. Under this rule, income derived by a resident of 
one of the countries that may be taxed in the other country in 
accordance with the proposed treaty (other than solely by 
reason of citizenship) is treated as arising in that other 
country. However, the preceding rule does not override the 
source rules of the domestic laws of the countries that are 
applicable for purposes of limiting the foreign tax credit.
Article 24. Nondiscrimination
    The proposed treaty contains a comprehensive 
nondiscrimination article relating to all taxes of every kind 
imposed at the national, state, or local level. It is similar 
to the nondiscrimination article in the U.S. model and to 
provisions that have been included in other recent U.S. income 
tax treaties.
    In general, under the proposed treaty, one country cannot 
discriminate by imposing other or more burdensome taxes (or 
requirements connected with taxes) on nationals of the other 
country than it would impose on its nationals in the same 
circumstances, in particular with respect to residence. This 
rule applies whether or not the nationals in question are 
residents of the United States or Estonia. However, for 
purposes of U.S. tax, U.S. nationals subject to tax on a 
worldwide basis are not in the same circumstances as Estonian 
nationals who are not U.S. residents.
    Under the proposed treaty, neither country may tax a 
permanent establishment of an enterprise (or a fixed base of a 
resident individual) of the other country less favorably than 
it taxes its own enterprises carrying on the same activities. 
Consistent with the U.S. model and the OECD model, however, a 
country is not obligated to grant residents of the other 
country any personal allowances, reliefs, or reductions for tax 
purposes on account of civil status or family responsibilities 
that are granted to its own residents.
    Each country is required (subject to the arm's-length 
pricing rules of paragraph 1 of Article 9 (Associated 
Enterprises), paragraph 7 of Article 11 (Interest), and 
paragraph 5 of Article 12 (Royalties)) to allow its residents 
to deduct interest, royalties, and other disbursements paid by 
them to residents of the other country under the same 
conditions that it allows deductions for such amounts paid to 
residents of the same country as the payor. The Technical 
Explanation states that the term ``other disbursements'' is 
understood to include a reasonable allocation of executive and 
general administrative expenses, research and development 
expenses, and other expenses incurred for the benefit of a 
group of related persons. The Technical Explanation further 
states that the rules of section 163(j) of the Code are not 
discriminatory within the meaning of this provision. The 
proposed treaty further provides that any debts of a resident 
of one country to a resident of the other country are 
deductible for purposes of determining the taxable capital of 
the debtor under the same conditions as if the debt had been 
owed to a resident of the country imposing such tax.
    The nondiscrimination rules also apply to enterprises of 
one country that are owned in whole or in part by residents of 
the other country. Enterprises resident in one country, the 
capital of which is wholly or partly owned or controlled, 
directly or indirectly, by one or more residents of the other 
country, will not be subjected in the first country to any 
taxation (or any connected requirement) which is other or more 
burdensome than the taxation (or connected requirements) that 
the first country imposes or may impose on its similar 
enterprises. The Technical Explanation includes examples of 
Code provisions that are understood by the two countries not to 
violate this provision of the proposed treaty. Those examples 
include the rules that impose a withholding tax on non-U.S. 
partners of a partnership and the rules that prevent foreign 
persons from owning stock in Subchapter S corporations.
    The proposed treaty provides that nothing in the 
nondiscrimination article is to be construed as preventing 
either of the countries from imposing a branch profits tax or a 
branch-level interest tax. Notwithstanding the definition of 
taxes covered in Article 2, this article applies to taxes of 
every kind and description imposed by either country, or a 
political subdivision or local authority thereof.
    The saving clause (which allows the country of residence or 
citizenship to impose tax notwithstanding certain treaty 
provisions) does not apply to the nondiscrimination article.
Article 25. Mutual Agreement Procedure
    The proposed treaty contains the standard mutual agreement 
provision, with some variation, that authorizes the competent 
authorities of the two countries to consult together to attempt 
to alleviate individual cases of double taxation not in 
accordance with the proposed treaty. The saving clause of the 
proposed treaty does not apply to this article, so that the 
application of this article might result in a waiver (otherwise 
mandated by the proposed treaty) of taxing jurisdiction by the 
country of citizenship or residence.
    Under this article, a resident of one country who considers 
that the action of one or both of the countries will cause him 
or her to be subject to tax which is not in accordance with the 
proposed treaty may present his or her case to the competent 
authority of either country. The case must be presented within 
3 years from the first notification of the action resulting in 
taxation not in accordance with the provisions of the treaty. 
The competent authority then makes a determination as to 
whether the objection appears justified. If the objection 
appears to it to be justified and if it is not itself able to 
arrive at a satisfactory solution, that competent authority 
must endeavor to resolve the case by mutual agreement with the 
competent authority of the other country, with a view to the 
avoidance of taxation which is not in accordance with the 
proposed treaty. The provision authorizes a waiver of the 
statute of limitations of either country.
    The competent authorities of the countries must endeavor to 
resolve by mutual agreement any difficulties or doubts arising 
as to the interpretation or application of the proposed treaty. 
In particular, the competent authorities may agree to the 
following: (1) the same attribution of income, deductions, 
credits, or allowances of an enterprise of one treaty country 
to the enterprise's permanent establishment situated in the 
other country; (2) the same allocation of income, deductions, 
credits, or allowances between persons; (3) the same 
characterization of particular items of income; (4) the same 
characterization of persons; (5) the same application of source 
rules with respect to particular items of income; (6) a common 
meaning of a term; (7) increases in any specific dollar amounts 
referred to in the proposed treaty to reflect economic or 
monetary developments; (8) advance pricing arrangements; and 
(9) the application of the provisions of each country's 
internal law regarding penalties, fines, and interest in a 
manner consistent with the purposes of the proposed treaty. The 
competent authorities may also consult together for the 
elimination of double taxation regarding cases not provided for 
in the proposed treaty. This treatment is similar to the 
treatment under the U.S. model.
    The proposed treaty authorizes the competent authorities to 
communicate with each other directly for purposes of reaching 
an agreement in the sense of this mutual agreement article. 
This provision makes clear that it is not necessary to go 
through diplomatic channels in order to discuss problems 
arising in the application of the proposed treaty.
Article 26. Exchange of Information and Administrative Assistance
    This article provides for the exchange of information 
between the two countries. Notwithstanding the provisions of 
Article 2 (Taxes Covered), the proposed treaty's information 
exchange provisions apply to all taxes imposed in either 
country at the national level.
    The proposed treaty provides that the two competent 
authorities will exchange such information as is relevant to 
carry out the provisions of the proposed treaty or the 
provisions of the domestic laws of the two countries concerning 
taxes to which the proposed treaty applies (provided that the 
taxation under those domestic laws is not contrary to the 
proposed treaty). This exchange of information is not 
restricted by Article 1 (General Scope). Therefore, information 
with respect to third-country residents is covered by these 
procedures.
    Any information exchanged under the proposed treaty is 
treated as secret in the same manner as information obtained 
under the domestic laws of the country receiving the 
information. The exchanged information may be disclosed only to 
persons or authorities (including courts and administrative 
bodies) involved in the assessment, collection or 
administration of, the enforcement or prosecution in respect 
of, or the determination of appeals in relation to, the taxes 
to which the proposed treaty applies. Such persons or 
authorities must use the information for such purposes 
only.6 The Technical Explanation states that persons 
involved in the administration of taxes include legislative 
bodies with oversight roles with respect to the administration 
of the tax laws, such as, for example, the tax-writing 
committees of Congress and the General Accounting Office. 
Information received by these bodies must be for use in the 
performance of their role in overseeing the administration of 
U.S. tax laws. Exchanged information may be disclosed in public 
court proceedings or in judicial decisions.
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    \6\ Code section 6103 provides that otherwise confidential tax 
information may be utilized for a number of specifically enumerated 
non-tax purposes. Information obtained by the United States pursuant to 
the proposed treaty could not be used for these non-tax purposes.
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    As is true under the U.S. model and the OECD model, under 
the proposed treaty, a country is not required to carry out 
administrative measures at variance with the laws and 
administrative practice of either country, to supply 
information that is not obtainable under the laws or in the 
normal course of the administration of either country, or to 
supply information that would disclose any trade, business, 
industrial, commercial, or professional secret or trade process 
or information the disclosure of which would be contrary to 
public policy.
    Notwithstanding the preceding paragraph, a country has the 
authority to obtain and provide information held by financial 
institutions, nominees, or persons acting in a fiduciary 
capacity. It also has the authority to obtain information 
respecting ownership of debt instruments or interests in a 
person. Such information must be provided to the requesting 
country notwithstanding any laws or practices of the requested 
country that would otherwise preclude acquiring or disclosing 
such information. Furthermore, if information is requested by a 
treaty country pursuant to this article, the other country is 
obligated to obtain the requested information as if the tax in 
question were the tax of the requested country, even if that 
country has no direct tax interest in the case to which the 
request relates. If specifically requested, the competent 
authority of a country must provide information in the form of 
depositions of witnesses and authenticated copies of unedited 
original documents (including books, papers, statements, 
records, accounts, and writings), to the same extent such 
depositions and documents can be obtained under the laws and 
administrative practices of the requested country with respect 
to its own taxes. Also, the proposed treaty provides that the 
competent authority of the requested country must allow 
representatives of the requesting country to enter the 
requested country to interview individuals and examine books 
and records with the consent of the person subject to 
examination.
    Under the proposed treaty, a country must endeavor to 
collect on behalf of the other country only those amounts 
necessary to ensure that any exemption or reduced rate of tax 
at source granted under the treaty by the other country is not 
enjoyed by persons not entitled to such benefits. However, 
neither country is obligated, in the process of providing 
collection assistance, to carry out administrative measures 
that differ from those used in the collection of its own taxes, 
or that would be contrary to its sovereignty, security, or 
public policy.
Article 27. Members of Diplomatic Missions and Consular Posts
    The proposed treaty contains the rule found in the U.S. 
model and other U.S. tax treaties that its provisions do not 
affect the fiscal privileges of members of diplomatic missions 
or consular posts under the general rules of international law 
or under the provisions of special agreements. Accordingly, the 
proposed treaty will not defeat the exemption from tax which a 
host country may grant to the salary of diplomatic officials of 
the other country. The saving clause does not apply in the 
application of this article to host country residents who are 
neither citizens nor lawful permanent residents of that 
country. Thus, for example, U.S. diplomats who are considered 
Estonian residents may be protected from Estonian tax.
Article 28. Entry Into Force
    The proposed treaty will enter into force on the date on 
which the second of the two notifications of the completion of 
ratification requirements has been received. Each country must 
notify the other through diplomatic channels when its 
constitutional requirements for ratification have been 
satisfied.
    With respect to taxes withheld at source, the proposed 
treaty will be effective for amounts paid or credited on or 
after the first day of January of the calendar year next 
following the year in which the proposed treaty enters into 
force.
    With respect to other taxes, the proposed treaty will be 
effective for taxable years beginning on or after the first day 
of January of the calendar year next following the year in 
which the proposed treaty enters into force.
    The proposed treaty provides that the appropriate 
authorities of the treaty countries will consult within 5 years 
from the date of the entry into force of the proposed treaty 
regarding its application, including the negotiation of a 
treaty amendment (by means of a protocol, if appropriate) 
regarding income derived from new technologies (such as 
payments received for transmission by satellite, cable, optic 
fibre, or similar technology).
Article 29. Termination
    The proposed treaty will continue in force until terminated 
by either country. Either country may terminate the proposed 
treaty at any time at least six months before the end of any 
calendar year by giving written notice of termination through 
diplomatic channels. A termination is effective, with respect 
to taxes withheld at source for amounts paid or credited on or 
after the first day of the calendar year next following the 
expiration of the notification period. In the case of other 
taxes, a termination is effective for taxable years beginning 
on or after the first day of January next following the 
expiration of the notification period.

                               IV. ISSUES

    The proposed treaty with Estonia presents the following 
specific issues.

                     A. Treatment of REIT Dividends

REITs in general
    REITs essentially are treated as conduits for U.S. tax 
purposes. The income of a REIT generally is not taxed at the 
entity level but is distributed and taxed only at the investor 
level. This single level of tax on REIT income is in contrast 
to other corporations, the income of which is subject to tax at 
the corporate level and is taxed again at the shareholder level 
upon distribution as a dividend. Hence, a REIT is like a mutual 
fund that invests in qualified real estate assets.
    An entity that qualifies as a REIT is taxable as a 
corporation. However, unlike other corporations, a REIT is 
allowed a deduction for dividends paid to its shareholders. 
Accordingly, income that is distributed by a REIT to its 
shareholders is not subject to corporate tax at the REIT level. 
A REIT is subject to corporate tax only on any income that it 
does not distribute currently to its shareholders. As discussed 
below, a REIT is required to distribute on a current basis the 
bulk of its income each year.
    In order to qualify as a REIT, an entity must satisfy, on a 
year-by-year basis, specific requirements with respect to its 
organizational structure, the nature of its assets, the source 
of its income, and the distribution of its income. These 
requirements are intended to ensure that the benefits of REIT 
status are accorded only to pooling of investment arrangements, 
the income of which is derived from passive investments in real 
estate and is distributed to the investors on a current basis.
    In order to satisfy the organizational structure 
requirements for REIT status, a REIT must have at least 100 
shareholders and not more than 50 percent (by value) of its 
shares may be owned by five or fewer individuals. In addition, 
shares of a REIT must be transferrable.
    In order to satisfy the asset requirements for REIT status, 
a REIT must have at least 75 percent of the value of its assets 
invested in real estate, cash and cash items, and government 
securities. In addition, diversification rules apply to the 
REIT's investment in assets other than the foregoing qualifying 
assets. Under these rules, not more than 5 percent of the value 
of its assets may be invested in securities of a single issuer 
and any such securities held may not represent more than 10 
percent of the voting securities of the issuer.
    In order to satisfy the source of income requirements, at 
least 95 percent of the gross income of the REIT generally must 
be from certain passive sources (e.g., dividends, interest, and 
rents). In addition, at least 75 percent of its gross income 
generally must be from certain real estate sources (e.g., real 
property rents, mortgage interest, and real property gains).
    Finally, in order to satisfy the distribution of income 
requirement, the REIT generally is required to distribute to 
its shareholders each year at least 95 percent of its taxable 
income for the year (excluding net capital gains). A REIT may 
retain 5 percent or less of its taxable income and all or part 
of its net capital gain.
    A REIT is subject to corporate-level tax only on any 
taxable income and net capital gains that the REIT retains. 
Under an available election, shareholders may be taxed 
currently on the undistributed capital gains of a REIT, with 
the shareholder entitled to a credit for the tax paid by the 
REIT with respect to the undistributed capital gains such that 
the gains are subject only to a single level of tax. 
Distributions from a REIT of ordinary income are taxable to the 
shareholders as a dividend, in the same manner as dividends 
from an ordinary corporation. Accordingly, such dividends are 
subject to tax at a maximum rate of 39.6 percent in the case of 
individuals and 35 percent in the case of corporations. In 
addition, capital gains of a REIT distributed as a capital gain 
dividend are taxable to the shareholders as capital gain. 
Capital gain dividends received by an individual will be 
eligible for preferential capital gain tax rates if the 
relevant holding period requirements are satisfied.
Foreign investors in REITs
    Nonresident alien individuals and foreign corporations 
(collectively, foreign persons) are subject to U.S. tax on 
income that is effectively connected with the foreign person's 
conduct of a trade or business in the United States, in the 
same manner and at the same graduated tax rates as U.S. 
persons. In addition, foreign persons generally are subject to 
U.S. tax at a flat 30-percent rate on certain gross income that 
is derived from U.S. sources and that is not effectively 
connected with a U.S. trade or business. The 30-percent tax 
applies on a gross basis to U.S.-source interest, dividends, 
rents, royalties, and other similar types of income. This tax 
generally is collected by means of withholding by the person 
making the payment of such amounts to a foreign person.
    Capital gains of a nonresident alien individual that are 
not connected with a U.S. business generally are subject to the 
30-percent withholding tax only if the individual is present in 
the United States for 183 days or more during the year. The 
United States generally does not tax foreign corporations on 
capital gains that are not connected with a U.S. trade or 
business. However, foreign persons generally are subject to 
U.S. tax on any gain from a disposition of an interest in U.S. 
real property at the same rates that apply to similar income 
received by U.S. persons. Therefore, a foreign person that has 
capital gains with respect to U.S. real estate is subject to 
U.S. tax on such gains in the same manner as a U.S. person. For 
this purpose, a distribution by a REIT to a foreign shareholder 
that is attributable to gain from a disposition of U.S. real 
property by the REIT is treated as gain recognized by such 
shareholder from the disposition of U.S. real property.
    U.S. income tax treaties contain provisions limiting the 
amount of income tax that may be imposed by one country on 
residents of the other country. Many treaties, like the 
proposed treaty, generally allow the source country to impose 
not more than a 15-percent withholding tax on dividends paid to 
a resident of the other treaty country. In the case of real 
estate income, most treaties, like the proposed treaty, specify 
that income derived from, and gain from dispositions of, real 
property in one country may be taxed by the country in which 
the real property is situated without limitation.7 
Accordingly, U.S. real property rental income derived by a 
resident of a treaty partner generally is subject to the U.S. 
withholding tax at the full 30-percent rate (unless the net-
basis taxation election is made), and U.S. real property gains 
of a treaty partner resident are subject to U.S. tax in the 
manner and at the rates applicable to U.S. persons.
---------------------------------------------------------------------------
    \7\ The proposed treaty, like many treaties, allows the foreign 
person to elect to be taxed in the source country on income derived 
from real property on a net basis under the source country's domestic 
laws.
---------------------------------------------------------------------------
    Although REITs are not subject to corporate-level taxation 
like other corporations, distributions of a REIT's income to 
its shareholders generally are treated as dividends in the same 
manner as distributions from other corporations. Accordingly, 
in cases where no treaty is applicable, a foreign shareholder 
of a REIT is subject to the U.S. 30-percent withholding tax on 
ordinary income distributions from the REIT. In addition, such 
shareholders are subject to U.S. tax on U.S. real estate 
capital gain distributions from a REIT in the same manner as a 
U.S. person.
    In cases where a treaty is applicable, this U.S. tax on 
capital gain distributions from a REIT still applies. However, 
absent special rules applicable to REIT dividends, treaty 
provisions specifying reduced rates of tax on dividends apply 
to ordinary income dividends from REITs as well as to dividends 
from taxable corporations. As discussed above, the proposed 
treaty, like many U.S. treaties, reduces the U.S. 30-percent 
withholding tax to 15 percent in the case of dividends 
generally. Prior to 1989, U.S. tax treaties contained no 
special rules excluding dividends from REITs from these reduced 
rates. Therefore, under pre-1989 treaties, REIT dividends are 
eligible for the same reductions in the U.S. withholding tax 
that apply to other corporate dividends.
    Beginning in 1989, U.S. treaty negotiators began including 
in treaties provisions excluding REIT dividends from the 
reduced rates of withholding tax generally applicable to 
dividends. Under treaties with these provisions such as the 
proposed treaty, REIT dividends generally are subject to the 
full U.S. 30-percent withholding tax.8
---------------------------------------------------------------------------
    \8\ Many treaties, like the proposed treaty, provide a maximum tax 
rate of 15 percent in the case of REIT dividends beneficially owned by 
an individual who holds a less than 10 percent interest in the REIT.
---------------------------------------------------------------------------
Analysis of treaty treatment of REIT dividends
    The specific treaty provisions governing REIT dividends 
were introduced beginning in 1989 because of concerns that the 
reductions in withholding tax generally applicable to dividends 
were inappropriate in the case of dividends from REITs. The 
reductions in the rates of source country tax on dividends 
reflect the view that the full 30-percent withholding tax rate 
may represent an excessive rate of source country taxation 
where the source country already has imposed a corporate-level 
tax on the income prior to its distribution to the shareholders 
in the form of a dividend. In the case of dividends from a 
REIT, however, the income generally is not subject to 
corporate-level taxation.
    REITs are required to distribute their income to their 
shareholders on a current basis. The assets of a REIT consist 
primarily of passive real estate investments and the REIT's 
income may consist principally of rentals from such real estate 
holdings. U.S. source rental income generally is subject to the 
U.S. 30-percent withholding tax. Moreover, the United States's 
treaty policy is to preserve its right to tax real property 
income derived from the United States. Accordingly, the U.S. 
30-percent tax on rental income from U.S. real property is not 
reduced in U.S. tax treaties.
    If a foreign investor in a REIT were instead to invest in 
U.S. real estate directly, the foreign investor would be 
subject to the full 30-percent withholding tax on rental income 
earned on such property (unless the net-basis taxation election 
is made). However, when the investor makes such investment 
through a REIT instead of directly, the income earned by the 
investor is treated as dividend income. If the reduced rates of 
withholding tax for dividends apply to REIT dividends, the 
foreign investor in the REIT is accorded a reduction in U.S. 
withholding tax that is not available for direct investments in 
real estate.
    On the other hand, some argue that it is important to 
encourage foreign investment in U.S. real estate through REITs. 
In this regard, a higher withholding tax on REIT dividends 
(i.e., 30 percent instead of 15 percent) may not be fully 
creditable in the foreign investor's home country and the cost 
of the higher withholding tax therefore may discourage foreign 
investment in REITs. For this reason, some oppose the inclusion 
in U.S. treaties of the special provisions governing REIT 
dividends, arguing that dividends from REITs should be given 
the same treatment as dividends from other corporate entities. 
Accordingly, under this view, the 15-percent withholding tax 
rate generally applicable under treaties to dividends should 
apply to REIT dividends as well.
    This argument is premised on the view that investment in a 
REIT is not equivalent to direct investment in real property. 
From this perspective, an investment in a REIT should be viewed 
as comparable to other investments in corporate stock. In this 
regard, like other corporate shareholders, REIT investors are 
investing in the management of the REIT and not just its 
underlying assets. Moreover, because the interests in a REIT 
are widely held and the REIT itself typically holds a large and 
diversified asset portfolio, an investment in a REIT represents 
a very small investment in each of a large number of 
properties. Thus, the REIT investment provides diversification 
and risk reduction that are not easily replicated through 
direct investment in real estate.
Modification of policy regarding treaty treatment of REIT dividends
    In 1997, the Treasury Department modified its policy with 
respect to the exclusion of REIT dividends from the reduced 
withholding tax rates applicable to other dividends under the 
treaties. The new policy was a result of significant 
cooperation among the Treasury Department, the staff of the 
Committee on Foreign Relations, the staff of the Joint 
Committee on Taxation, and representatives of the REIT 
industry. Under this policy, REIT dividends paid to a resident 
of a treaty country will be eligible for the reduced rate of 
withholding tax applicable to portfolio dividends (typically, 
15 percent) in two cases. First, the reduced withholding tax 
will apply to REIT dividends if the treaty country resident 
beneficially holds an interest of 5 percent or less in each 
class of the REIT's stock and such dividends are paid with 
respect to a class of the REIT's stock that is publicly traded. 
Second, the reduced withholding tax rate will apply to REIT 
dividends if the treaty country resident beneficially holds an 
interest of 10 percent or less in the REIT and the REIT is 
diversified, regardless of whether the REIT's stock is publicly 
traded.9 In addition, the current treaty policy with 
respect to the application of the reduced withholding tax rate 
to REIT dividends paid to individuals holding less than a 
specified interest in the REIT will remain unchanged.
---------------------------------------------------------------------------
    \9\ For purposes of the rules, a REIT will be considered to be 
diversified if the value of no single interest in real property held by 
the REIT exceeds 10 percent of the value of the REIT's total interests 
in real property.
---------------------------------------------------------------------------
    In 1997, the Committee included a reservation to the U.S.-
Luxembourg treaty that was submitted for ratification, 
requiring that such treaty incorporate this new policy with 
respect to the treatment of REIT dividends 
generally.10 In addition, the Committee included 
declarations to the 1997 treaties with Austria, Ireland, and 
Switzerland, which stated that the United States will use its 
best efforts to negotiate a protocol with Austria, Ireland, and 
Switzerland to amend such treaties to incorporate this new 
policy. The Treasury Department also will incorporate this new 
policy with respect to the treatment of REIT dividends in the 
U.S. model treaty and in future treaty negotiations.
---------------------------------------------------------------------------
    \10\ The reservation to the Luxembourg treaty also provided for a 
special rule for dividends on certain existing REIT investments.
---------------------------------------------------------------------------
Issue
    Under many older U.S. tax treaties, the U.S. withholding 
tax on REIT dividends paid to residents of the treaty partner 
is limited to a maximum rate of 15 percent. Under the proposed 
treaty, as under some U.S. tax treaties, the reduced rates of 
U.S. withholding applicable to dividends generally do not apply 
to REIT dividends and, thus, REIT dividends paid to residents 
of Estonia may be subject to U.S. withholding tax at the full 
statutory rate of 30 percent.
    The Committee may wish to consider whether, in light of the 
competing considerations discussed above, the treatment of REIT 
dividends in the proposed treaty is appropriate.

                   B. Developing Country Concessions

    The proposed treaty contains a number of developing country 
concessions, some of which are found in other U.S. income tax 
treaties with developing countries. The most significant of 
these concessions are described below.
Definition of permanent establishment
    The proposed treaty departs from the U.S. and OECD models 
by providing for broader source-basis taxation with respect to 
business activities. The proposed treaty's permanent 
establishment article, for example, permits the country in 
which business activities are carried on to tax the activities 
in circumstances where it would not be able to do so under 
either of the model treaties. Under the proposed treaty, a 
building site or construction, assembly or installation project 
in a treaty country constitutes a permanent establishment if 
the site or project continues in a country for more than six 
months; under the U.S. and OECD models, such a site or project 
must last for more than one year in order to constitute a 
permanent establishment. Thus, for example, under the proposed 
treaty, a U.S. enterprise's business profits that are 
attributable to a construction project in Estonia will be 
taxable by Estonia if the project lasts for more than six 
months.
    In addition, installations or drilling rigs or ships used 
for the exploration or exploitation of natural resources in a 
country for more than 6 months would cause such equipment to be 
treated as a permanent establishment. Under the U.S. model, 
drilling rigs or ships must be present in a country for more 
than one year in order to constitute a permanent establishment. 
It should be noted that many tax treaties between the United 
States and developing countries similarly provide a permanent 
establishment threshold of six months for building sites and 
drilling rigs.
Taxation of business profits
    Under the U.S. model and many other U.S. income tax 
treaties, a country may only tax the business profits of a 
resident of the other country to the extent those profits are 
attributable to a permanent establishment situated within the 
first country. The proposed treaty expands the definition of 
business profits that are attributable to a permanent 
establishment to include profits that are derived from sales of 
goods or merchandise of the same or similar kind as those sold 
through the permanent establishment and profits derived from 
other business activities of the same or similar kind as those 
effected through the permanent establishment. However, this 
rule applies only if it is proved that the sales or activities 
were structured in a manner intended to avoid tax in the 
country where the permanent establishment is located. This 
expanded definition is narrower than the rule included in other 
U.S. tax treaties with developing countries. It should be noted 
that although this rule provides for broader source basis 
taxation than does the rule contained in the U.S. model, it is 
not as broad as the general ``force of attraction'' rule that 
is included in the Code.
Taxation of certain equipment leasing
    The proposed treaty treats as royalties, payments for the 
use of, or the right to use, industrial, commercial, or 
scientific equipment. In most other treaties, these payments 
are considered rental income; as such, the payments are subject 
to the business profits rules, which generally permit the 
source country to tax such amounts only if they are 
attributable to a permanent establishment located in that 
country, and the payments are taxed, if at all, on a net basis. 
By contrast, the proposed treaty permits gross-basis source 
country taxation of these payments, at a rate not to exceed 5 
percent, if the payments are not attributable to a permanent 
establishment situated in that country. If the payments are 
attributable to such a permanent establishment, the business 
profits article of the proposed treaty is applicable.
Other taxation by source country
    The proposed treaty includes additional concessions with 
respect to source basis taxation of amounts earned by residents 
of the other treaty country.
    The proposed treaty allows a maximum rate of source country 
tax on royalties of 10 percent (5 percent in the case of income 
from the use of certain equipment as discussed above). By 
contrast, both the U.S. model and the OECD model generally 
would not permit source country taxation of royalties.
    The proposed treaty permits source country taxation of 
income derived by a resident of the other treaty country from 
professional or other independent services if the resident is 
present in the source country for the purpose of performing 
such services for more than 183 days in any 12-month period. By 
contrast, the U.S. and OECD models generally would permit 
source country taxation of income from independent personal 
services only where such income is attributable to a fixed base 
or permanent establishment in the source country.
    The proposed treaty generally provides for residence 
country taxation under Article 21 (Other Income) for income of 
a resident of a country that is not dealt with in other 
articles of the proposed treaty. Under the proposed treaty, 
such income that arises in a treaty country may also be taxed 
by the source country. By contrast, the U.S. and OECD models 
generally would permit only a recipient's country of residence 
to tax such other income.
Issue
    One purpose of the proposed treaty is to reduce tax 
barriers to direct investment by U.S. firms in Estonia. The 
practical effect of these developing country concessions could 
be greater Estonian taxation of future activities of U.S. firms 
in Estonia than would be the case under rules that were 
comparable to those of either the U.S. model or the OECD model.
    The issue is whether these developing country concessions 
represent appropriate U.S. treaty policy and, if so, whether 
Estonia is an appropriate recipient of these concessions. There 
is a risk that the inclusion of these concessions in the 
proposed treaty could result in additional pressure on the 
United States to include such concessions in future treaties 
negotiated with developing countries. However, a number of 
existing U.S. income tax treaties with developing countries 
already include similar concessions. Such concessions arguably 
are necessary in order to enter into treaties with developing 
countries. Tax treaties with developing countries can be in the 
interest of the United States because they provide reductions 
in the taxation by such countries of U.S. investors and a 
clearer framework for the taxation of U.S. investors. Such 
treaties also provide dispute resolution and nondiscrimination 
rules that benefit U.S. investors and exchange of information 
procedures that benefit the tax authorities.

                        C. Royalty Source Rules

    Under the proposed treaty, royalties are sourced by 
reference to where the payor resides (or where the payor has a 
permanent establishment or fixed base, if the royalty was 
incurred and borne by the permanent establishment or fixed 
base). If this rule does not treat the royalty as sourced in 
one of the treaty countries, the royalty is sourced based on 
the place of use of the property. This source provision has 
been included in some other U.S. treaties (e.g., the 1995 U.S.-
Canada protocol, the U.S.-Thailand treaty, and the U.S.-Turkey 
treaty). However, this source provision is different than the 
U.S. internal law rule which sources royalties based on the 
place of use of the property.
    Under the proposed treaty, if an Estonian resident that 
does not have a permanent establishment or fixed base in the 
United States pays a royalty to a U.S. resident for the right 
to use property exclusively in the United States, the proposed 
treaty would treat such royalty as Estonian source (and 
therefore potentially taxable in Estonia). However, U.S. 
internal law would treat such a royalty as U.S.-source income. 
The staff understands, however, that this situation would arise 
in relatively few cases (as opposed to the more common 
situation in which an Estonian resident using property in the 
United States would also have a permanent establishment or 
fixed base in the United States).
    The Committee may wish to consider whether the treaty 
provision that sources royalties in a manner that is 
inconsistent with the U.S. internal law rules is appropriate.

            D. Income from the Rental of Ships and Aircraft

    The proposed treaty includes a provision found in the U.S. 
model and many U.S. income tax treaties under which profits 
from an enterprise's operation of ships or aircraft in 
international traffic are taxable only in the enterprise's 
country of residence. For this purpose, the operation of ships 
or aircraft in international traffic includes profits derived 
from the rental of ships or aircraft on a full (time or voyage) 
basis. In the case of profits derived from the rental of ships 
and aircraft on a bareboat (without a crew) basis, the rule 
limiting the right to tax to the country of residence applies 
to such rental profits only if the bareboat rental profits are 
incidental to other profits of the lessor from the operation of 
ships and aircraft in international traffic. Such bareboat 
rental profits that are not incidental to other income from the 
international operation of ships and aircraft generally would 
be taxable by the source country as royalties at a 5-percent 
rate (or as business profits if such profits are attributable 
to a permanent establishment). The U.S. model and many other 
treaties provide that profits from the rental of ships and 
aircraft operated in international traffic are taxable only in 
the country of residence, without requiring that the rental 
profits be incidental to income of the recipient from the 
operation of ships and aircraft. Under the proposed treaty, 
unlike under the U.S. model, an enterprise that engages only in 
the rental of ships and aircraft on a bareboat basis, but does 
not engage in the operation of such ships and aircraft, would 
not be eligible for the rule limiting the right to tax income 
from operations in international traffic to the enterprise's 
country of residence. It should be noted that under the 
proposed treaty profits from the use, maintenance, or rental of 
containers used in international traffic are taxable only in 
the country of residence. The Committee may wish to consider 
whether the proposed treaty's rules treating profits from 
certain rental of ships and aircraft less favorably than 
profits from the operation of ships and aircraft and the rental 
of containers are appropriate.

                           E. Treaty Shopping

    The proposed treaty, like a number of U.S. income tax 
treaties, generally limits treaty benefits for treaty country 
residents so that only those residents with a sufficient nexus 
to a treaty country will receive treaty benefits. Although the 
proposed treaty generally is intended to benefit only residents 
of Estonia and the United States, residents of third countries 
sometimes attempt to use a treaty to obtain treaty benefits. 
This is known as treaty shopping. Investors from countries that 
do not have tax treaties with the United States, or from 
countries that have not agreed in their tax treaties with the 
United States to limit source country taxation to the same 
extent that it is limited in another treaty may, for example, 
attempt to reduce the tax on interest on a loan to a U.S. 
person by lending money to the U.S. person indirectly through a 
country whose treaty with the United States provides for a 
lower rate of withholding tax. The third-country investor may 
attempt to do this by establishing in that treaty country a 
subsidiary, trust, or other entity which then makes the loan to 
the U.S. person and claims the treaty reduction for the 
interest it receives.
    The anti-treaty shopping provision of the proposed treaty 
is similar to anti-treaty shopping provisions in the Code (as 
interpreted by Treasury regulations) and in several recent 
treaties. Some aspects of the provision, however, differ from 
the anti-treaty shopping provision in the U.S. model. The issue 
is whether the anti-treaty shopping provision of the proposed 
treaty will be effective in forestalling potential treaty 
shopping abuses.
    One provision of the anti-treaty shopping article differs 
from the comparable rule of some earlier U.S. treaties, but the 
effect of the change is not clear. The general test applied by 
those treaties to allow benefits to an entity that does not 
meet the bright-line ownership and base erosion tests is a 
broadly subjective one, looking to whether the acquisition, 
maintenance, or operation of an entity did not have ``as a 
principal purpose obtaining benefits under'' the treaty. By 
contrast, the proposed treaty contains a more precise test that 
allows denial of benefits only with respect to income not 
derived in connection with (or incidental to) the active 
conduct of a substantial trade or business. (However, this 
active trade or business test does not apply with respect to a 
business of making or managing investments carried on by a 
person other than a bank, insurance company, or registered 
securities dealer; so benefits may be denied with respect to 
such a business regardless of how actively it is conducted.) In 
addition, the proposed treaty (like all recent treaties) gives 
the competent authority of the country in which the income 
arises the authority to determine that the benefits of the 
treaty will be granted to a person even if the specified tests 
are not satisfied.
    The Committee has in the past expressed its belief that the 
United States should maintain its policy of limiting treaty 
shopping opportunities whenever possible. The Committee has 
further expressed its belief that in exercising any latitude 
the Treasury Department has to adjust the operation of the 
proposed treaty, it should satisfy itself that its rules as 
applied will adequately deter treaty shopping abuses. The 
proposed treaty's ownership test may be effective in preventing 
third-country investors from obtaining treaty benefits by 
establishing investing entities in Estonia because third-
country investors may be unwilling to share ownership of such 
investing entities on a 50-50 basis with U.S. or Estonian 
residents or other qualified owners in order to meet the 
ownership test of the anti-treaty shopping provision. The base 
erosion test contained in the proposed treaty will provide 
protection from certain potential abuses of an Estonian 
conduit. On the other hand, implementation of the tests for 
treaty shopping set forth in the treaty may raise factual, 
administrative, or other issues that cannot currently be 
foreseen. Thus, the Committee may wish to satisfy itself that 
the provision as proposed is an adequate tool for preventing 
possible treaty-shopping abuses in the future.

                                  
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