[Senate Executive Report 108-4]
[From the U.S. Government Publishing Office]



108th Congress                                               Exec. Rpt.
                                 SENATE
 1st Session                                                      108-4

======================================================================



 
                  PROTOCOL AMENDING THE TAX CONVENTION
                              WITH MEXICO

                                _______
                                

                 March 13, 2003.--Ordered to be printed

                                _______
                                

           Mr. Lugar from the Committee on Foreign Relations,
                        submitted the following

                              R E P O R T

                    [To accompany Treaty Doc. 108-3]

    The Committee on Foreign Relations, to which was referred 
the Second Additional Protocol That Modifies the Convention 
Between the Government of the United States of America and the 
Government of the United Mexican States for the Avoidance of 
Double Taxation and the Prevention of Fiscal Evasion with 
Respect to Taxes on Income, signed at Mexico City on November 
26, 2002, having considered the same, reports favorably thereon 
and recommends that the Senate give its advice and consent to 
ratification thereof, as set forth in this report and the 
accompanying resolution of ratification.

                                CONTENTS

                                                                   Page
  I. Purpose..........................................................1
 II. Background.......................................................2
III. Summary..........................................................2
 IV. Entry Into Force and Termination.................................2
  V. Committee Action.................................................3
 VI. Committee Comments...............................................3
VII. Budget Impact....................................................7
VIII.Explanation of Proposed Treaty...................................7

 IX. Text of Resolution of Ratification...............................7

                               I. Purpose

    The principal purposes of the existing income tax treaty 
between the United States and Mexico and the proposed protocol 
amending the existing treaty between the United States and 
Mexico 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 existing treaty and proposed protocol 
also are intended to continue 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.

                             II. Background

    The proposed protocol was signed on November 26, 2002. The 
proposed protocol would amend the existing income tax treaty 
between the United States and Mexico that was signed in 1992.
    The proposed protocol was transmitted to the Senate for 
advice and consent to its ratification on February 25, 2003 
(see Treaty Doc. 108-3). The Committee on Foreign Relations 
held a public hearing on the proposed protocol on March 5, 
2003.

                              III. Summary

    The proposed protocol includes provisions similar to those 
of other recent U.S. income tax treaties, the 1996 U.S. model 
income tax treaty (``U.S. model''), and the 1992 model income 
tax treaty of the Organization for Economic Cooperation and 
Development, as updated (``OECD model''). However, the proposed 
protocol contains certain substantive deviations from these 
treaties and models.
    As in other U.S. tax treaties, the purposes of the protocol 
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. 
In the case of dividends, the proposed protocol contains 
provisions that would eliminate source-country tax on certain 
intercompany dividends in which certain ownership thresholds 
and other requirements are satisfied. In addition, the proposed 
protocol would provide a parallel exemption from the U.S. 
branch profits tax (Articles 2 and 3 of the proposed protocol).
    In situations in which the country of source retains the 
right under the proposed treaty to tax income derived by 
residents of the other country, the proposed protocol 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 (Articles 4 and 
5 of the proposed protocol).

                  IV. Entry Into Force and Termination


                          A. ENTRY INTO FORCE

    The proposed protocol 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. The proposed protocol will be effective with respect 
to dividends paid or credited on or after the first day of the 
second month after the date on which the protocol enters into 
force. All other provisions of the proposed protocol will be 
effective for taxable periods beginning on or after the first 
day of January of the year following the year in which the 
proposed protocol enters into force.

                             B. TERMINATION

    The existing treaty, as amended by the proposed protocol, 
will remain in force until terminated by either country. Either 
country may terminate the treaty by giving notice of 
termination to the other country through diplomatic channels. 
In such case, a termination is effective in respect of taxes 
imposed in accordance with Articles 10 (Dividends), 11 
(Interest) and 12 (Royalties) for amounts paid or credited on 
or after the first day of the second month next following the 
expiration of the six month period following notice of 
termination. A termination is effective in respect of other 
taxes for taxable periods beginning on or after first day of 
January following the expiration of the 6 month period 
following notice of termination.

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the proposed protocol with Mexico (Treaty Doc. 108-3) on March 
5, 2003. The hearing was chaired by Senator Hagel. \1\ The 
Committee considered the proposed protocol on March 12, 2003, 
and ordered the proposed protocol with Mexico favorably 
reported by a vote
of 19 in favor and 0 against, with the recommendation that the
Senate give its advice and consent to ratification of the 
proposed
treaty.
---------------------------------------------------------------------------
    \1\ The transcript of this hearing will be forthcoming as a 
separate Committee print.
---------------------------------------------------------------------------

                         VI. Committee Comments

    On balance, the Committee on Foreign Relations believes 
that the proposed protocol with Mexico is in the interest of 
the United States and urges that the Senate act promptly to 
give advice and consent to ratification. The Committee has 
taken note of certain issues raised by the proposed protocol 
and believes that the following comments may be useful to the 
Treasury Department officials in providing guidance on these 
matters should they arise in the course of future treaty 
negotiations.

  A. ZERO RATE OF WITHHOLDING TAX ON DIVIDENDS FROM 80-PERCENT-OWNED 
                              SUBSIDIARIES

In general

    The proposed protocol would eliminate withholding tax on 
dividends paid by one corporation to another corporation that 
owns at least 80 percent of the stock of the dividend-paying 
corporation (often referred to as ``direct dividends''), 
provided that certain conditions are met (subparagraph 3(a) of 
Article 10 of the current treaty (Dividends)). The elimination 
of withholding tax under these circumstances is intended to 
reduce further the tax barriers to direct investment between 
the two countries.
    Currently, no U.S. treaty provides for a complete exemption 
from withholding tax under these circumstances, nor do the U.S. 
or OECD models. However, many bilateral tax treaties to which 
the United States is not a party eliminate withholding taxes 
under similar circumstances, and the same result has been 
achieved within the European Union under its ``Parent-
Subsidiary Directive.'' In addition, the United States has 
signed a proposed treaty with the United Kingdom and a proposed 
protocol with Australia that include zero-rate provisions 
similar to the one in the proposed protocol.

Description of provision

    Under the proposed protocol, the withholding tax rate is 
reduced to zero on certain dividends beneficially owned by a 
company that has owned at least 80 percent of the voting power 
of the company paying the dividend for the 12-month period 
ending on the date the dividend is declared (subparagraph 3(a) 
of Article 10 of the current treaty (Dividends)). Under the 
current U.S.-Mexico treaty, these dividends may be taxed at a 
5-percent rate.

Benefits and costs of adopting a zero rate with Mexico

    Tax treaties mitigate double taxation by resolving the 
potentially conflicting claims of a residence country and a 
source country to tax the same item of income. In the case of 
dividends, standard international practice is for the source 
country to yield mostly or entirely to the residence country. 
Thus, the residence country preserves its right to tax the 
dividend income of its residents, and the source country agrees 
either to limit its withholding tax to a relatively low rate 
(e.g., 5 percent) or to forgo it entirely.
    Treaties that permit a positive rate of dividend 
withholding tax allow some degree of double taxation to 
persist. To the extent that the residence country allows a 
foreign tax credit for the withholding tax, this remaining 
double taxation may be mitigated or eliminated, but then the 
priority of the residence country's claim to tax the dividend 
income of its residents is not fully respected. Moreover, if a 
residence country imposes limitations on its foreign tax 
credit, withholding taxes may not be fully creditable as a 
practical matter, thus leaving some double taxation in place. 
For these reasons, dividend withholding taxes are commonly 
viewed as barriers to cross-border investment. The principal 
argument in favor of eliminating withholding taxes on certain 
direct dividends in the proposed treaty is that it would remove 
one such barrier.
    Direct dividends arguably present a particularly 
appropriate case in which to remove the barrier of a 
withholding tax, in view of the close economic relationship 
between the payor and the payee. Whether in the United States 
or in Mexico, the dividend-paying corporation generally faces 
full net-basis income taxation in the source country, and the 
dividend-receiving corporation generally is taxed in the 
residence country on the receipt of the dividend (subject to 
allowable foreign tax credits). If the dividend-paying 
corporation is at least 80-percent owned by the dividend-
receiving corporation, it is arguably appropriate to regard the 
dividend-receiving corporation as a direct investor (and 
taxpayer) in the source country in this respect, rather than 
regarding the dividend-receiving corporation as having a more 
remote investor-type interest warranting the imposition of a 
second-level source-country tax.
    Since Mexico does not currently impose a withholding tax on 
these dividends under its internal law, the zero-rate provision 
would principally benefit direct investment in the United 
States by Mexican companies, as opposed to direct investment in 
Mexico by U.S. companies. In other words, the potential 
benefits of the provision would accrue mainly in situations in 
which the United States is importing capital, as opposed to 
exporting it.
    However, it should be noted that, although Mexican internal 
law currently does not impose a withholding tax on dividends 
paid to foreign persons, there is no guarantee that this will 
always be the case. Indeed, Mexican law has changed recently in 
this regard--Mexico adopted a dividend withholding tax in 1999, 
but then repealed it in 2001 (effective for dividends paid 
after 2001). Thus, the inclusion of a zero-rate provision under 
the proposed protocol would give U.S.-based enterprises 
somewhat greater certainty as to the applicability of a zero 
rate in Mexico, which arguably would facilitate long-range 
business planning for U.S. companies in their capacities as 
capital exporters. Along the same lines, the provision would 
protect the U.S. fisc against increased foreign tax credit 
claims in the event that Mexico were to change its internal law 
in this regard.
    Although the United States has never agreed bilaterally to 
a zero rate of withholding tax on direct dividends, many other 
countries have done so in one or more of their bilateral tax 
treaties. These countries include OECD members Austria, 
Denmark, France, Finland, Germany, Iceland, Ireland, Japan, 
Luxembourg, Mexico, the Netherlands, Norway, Sweden, 
Switzerland, and the United Kingdom, as well as non-OECD-
members Belarus, Brazil, Cyprus, Egypt, Estonia, Israel, 
Latvia, Lithuania, Mauritius, Namibia, Pakistan, Singapore, 
South Africa, Ukraine, and the United Arab Emirates. In 
addition, a zero rate on direct dividends has been achieved 
within the European Union under its ``Parent-Subsidiary 
Directive.'' Finally, many countries have eliminated 
withholding taxes on dividends as a matter of internal law 
(e.g., the United Kingdom and Mexico). Thus, although the zero-
rate provision in the proposed protocol is unprecedented in 
U.S. treaty history, there is substantial precedent for it in 
the experience of other countries. It may be argued that this 
experience constitutes an international trend toward 
eliminating withholding taxes on direct dividends, and that the 
United States would benefit by joining many of its treaty 
partners in this trend and further reducing the tax barriers to 
cross-border direct investment.

Committee conclusions

    The Committee believes that every tax treaty must strike 
the appropriate balance of benefits in the allocation of taxing 
rights. The agreed level of dividend withholding for 
intercompany dividends is one of the elements that make up that 
balance, when considered in light of the benefits inuring to 
the United States from other concessions the treaty partner may 
make, the benefits of facilitating stable cross-border 
investment between the treaty partners, and each partner's 
domestic law with respect to dividend withholding tax.
    In the case of this protocol, considered as a whole, the 
Committee believes that the elimination of withholding tax on 
intercompany dividends appropriately addresses a barrier to 
cross-border investment. The Committee believes, however, that 
the Treasury Department should only incorporate similar 
provisions into future treaty or protocol negotiations on a 
case-by-case basis, and it notes with approval Treasury's 
statement that ``[i]n light of the range of facts that should 
be considered, the Treasury Department does not view 
[elimination of withholding tax on intercompany dividends] as a 
blanket change in the United States' tax treaty practice.''
    The Committee encourages the Treasury Department to develop 
criteria for determining the circumstances under which the 
elimination of withholding tax on intercompany dividends would 
be appropriate in future negotiations with other countries. The 
Committee expects the Treasury Department to consult with the 
Committee with regards to these criteria and to the 
consideration of elimination of the withholding tax on 
intercompany dividends in future treaties.

                    B. MOST-FAVORED NATION PROVISION

    Under the current U.S.-Mexico income tax treaty, dividends 
beneficially owned by a company that owns at least 10 percent 
of the voting stock of the dividend-paying company are subject 
to a maximum withholding rate of 5 percent (paragraph 2(a) of 
Article 10 of the current treaty), which is the lowest rate of 
withholding tax on dividends currently available under U.S. 
treaties. Under Protocol 1 to that treaty, the United States 
and Mexico agreed that if the United States agreed in a treaty 
with another country to impose a lower rate on dividends than 
the 5% rate, ``both Contracting States shall apply that lower 
rate instead of the [5%] rate.''
    At the time the Committee considered the original Mexico 
income tax treaty, the Committee was concerned with the self-
executing nature of the provision in the Mexico protocol. As a 
result, the Senate provided its advice and consent to the 
ratification of the treaty subject to an understanding ``that 
the phrase `both Contracting States shall apply that lower 
rate' . . . is understood to mean that both Contracting States 
agree to promptly amend the Convention to incorporate that 
lower rate.''
    The adoption of a zero-rate provision in the U.S.-Australia 
or the U.S.- U.K. treaty relationship would implicate this 
commitment to amend the current treaty with Mexico.

Committee conclusions

    The Committee remains concerned with the self-executing 
nature of the provision in the original Mexico protocol. The 
Committee believes that a subsequent amendment to any 
previously ratified treaty should be subject to the advice and 
consent of the Senate. The Committee is not persuaded by those 
who have contended that the Senate would de facto approve the 
amendment in giving its advice and consent to a subsequent 
treaty that triggered the most favored nation clause. Such 
provisions disrupt the delicate balance of power between the 
legislative and executive branches of government.
    It is the Committee's understanding that subsequent 
treaties have not included such self-executing provisions. The 
Committee notes its continuing concern regarding the effect of 
such provisions and expects that the Treasury Department will 
not include such provisions in future treaties.

                           VII. Budget Impact

    The Committee has been informed by the staff of the Joint 
Committee on Taxation that the proposed protocol is estimated 
to cause a negligible change in Federal budget receipts during 
the fiscal year 2003-2012 period.

                  VIII. Explanation of Proposed Treaty

    A detailed, article-by-article explanation of the proposed 
protocol between the United States and Mexico can be found in 
the pamphlet of the Joint Committee on Taxation entitled 
Explanation of Proposed Protocol to the Income Tax Treaty 
Between the United States and Mexico (JCS-6-03), March 3, 2003.

                 IX. Text of Resolution of Ratification

    Resolved (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Second Additional Protocol That Modifies 
the Convention Between the Government of the United States of 
America and the Government of the United Mexican States for the 
Avoidance of Double Taxation and the Prevention of Fiscal 
Evasion with Respect to Taxes on Income, signed at Mexico City 
on November 26, 2002 (Treaty Doc. 108-3).

