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Resolution as regards not only fuel but also income (in Resolving Clause 2b)) minimizes the risk of any
possible retaliatory responses.
7. Also in relation to Clause 1 e), the Council recognized that throughput charges imposed
by government or airport authorities on fuel companies in return for facilities or services provided can in
certain circumstances become, in practical effect to those engaged in international air transport, the
equivalent of another tax payable by them. However, taxes and customs or excise duties on fuel differ in
essence from charges (however they may be levied) for the use of certain facilities and the Council has
recommended in its Statement on Airport Charges in Doc 9082 (Statements by the Council to Contracting
States on Charges for Airports and Air Navigation Services) that “where fuel ‘throughput’ charges are
imposed they should be recognized by airport authorities as being concession charges of an aeronautical
nature. (‘Concession charges’ are fees for the right to operate a commercial activity at an airport.)” In
general, to clarify what is a charge and what is a tax, it should be generally recognized that, when any
levy on consumption of fuel: (a) falls on aircraft operators of other States engaged in international air
transport, (b) is in the form of a compulsory contribution to the support of the government, and (c) is not
then used for airports or air navigation facilities and services, it is in reality an excise tax and comes
within the terms of the Resolution as it relates to fuel.
Taxation of income of international air transport enterprises
and taxation of aircraft and other moveable property
8. This part of the Resolution aims at the avoidance of multiple taxation on the income of
air transport enterprises, as well as multiple taxation of aircraft and other movable property associated
with the operation of aircraft in international air transport. The Council, for reasons similar to those given
in the part of the Resolution dealing with taxation of fuel, lubricants and other consumable technical
supplies, based the Resolution upon the principle of reciprocity. This approach appeared to offer the best
prospect of general acceptance, has been widely applied to international shipping for many years, and has
already been put into effect in many instances either through appropriate legislation in individual States or
through bilateral agreements of one sort or another between States.
9. It will be noted in this connexion that the conclusion of such agreements is consistent
with the recommendations of the Economic and Social Council of the United Nations and of the
Organization for Economic Co-operation and Development (OECD) to the effect that governments should
actively pursue a policy of negotiating agreements with each other for the avoidance of multiple taxation.
Furthermore, both this reciprocal approach and the method used for avoidance of multiple taxation for the
items referred to in this Section are reinforced by the OECD Model Convention (1992) for the Avoidance
of Double Taxation with respect to Taxes on Income and on Capital. The United Nations Model Double
Taxation Convention between Developed and Developing Countries (1980) also stresses the reciprocal
approach and has many articles in common with the OECD Convention.
10. Resolving Clause 2 b) parallels the principle in Resolving Clause 1 e) of the Resolution
and the comments in paragraph 6 apply equally to this Resolution.
11. The Resolution as regards income, when fully implemented by all Contracting States,
would mean that taxes on the earnings, aircraft and other movable property associated with the operation
of aircraft of an international air transport enterprise would be levied solely by the State where the place
of effective management of the enterprise is located. In the absence of reciprocal exemptions, an
international air transport enterprise is subject either to multiple taxation – a situation which this
Resolution endeavours to prevent – or to assessments on the basis of one or the other allocation formula
to be negotiated between the operator and the State concerned. The only possible alternative, i.e.
allocation on a multilateral basis, in the Council’s view, remains a theory which conceivably might be
more equitable provided every State in the world would agree to commit itself to the formula devised.
This appears precluded in the foreseeable future by: (a) fundamental differences between jurisdictions, in
tax structure, revenue needs and economic conditions, as well as by differences in language, business and
accounting practices and fiscal and commercial legislation; and (b) the freely admitted desire of the
operators of international flights, in cases where the rule of reciprocal exemption is not followed, to
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ICAO's Policies on Taxation in the Field of International Ai(6)
