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The Impact of the OECD and UN Model Conventions on Bilateral Tax Treaties

The Impact of the OECD and UN Model Conventions on Bilateral Tax Treaties

Author: Michael Lang; Pasquale Pistone; Josef Schuch; Claus Staringer
Publisher: Cambridge University Press
ISBN: 9781107019720
Published In: May 2012
Format: Hardback , 1244 pages
Jurisdiction: Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, China, Colombia, Croatia, Czech Republic, Estonia, Finland, France, Germany, Hong Kong, Hungary, India, International, Italy, Lebanon, Liechtenstein, New Zealand, Norway, Peru, Poland, Portugal, Romania, Russia, Serbia, Slovak Republic, Slovenia, Spain, Sweden, U.K., U.S., Uganda ? Disclaimer:
Countri(es) stated herein are used as reference only

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This book provides an analysis of bilateral tax treaties concluded by thirty-seven jurisdictions from five continents and empirically ascertains the impact of the UN and OECD Model Tax Conventions on bilateral tax treaties. It therefore fills a major gap in the international tax literature, which has so far either studied the sole Model Tax Conventions or focused on bilateral treaties in the context of the tax treaty policy of single countries, and sets the pace for a new methodology in the analysis and interpretation of tax treaties. A general report outlines the key points of the analysis, highlights current trends and predicts future developments of multilateralism and global tax law. This is an essential resource for academics, tax authorities and international tax practitioners who find textbooks based on Model Tax Conventions insufficient.

• First study of tax treaties to adopt a global perspective

• Demonstrates the impact of the OECD and UN Model Conventions via independent expert analysis and supplemented by a general report

• Sets new standards for tax treaty interpretation by turning bilateral treaties into a possible core for developing multilateralism in global tax law

List of contributors	xvii
Preface	xxvii
Table of cases	xxx
Table of statutes	xliv
General report	1
I The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of tax treaties	4
II The personal and material scope of the tax treaties	8
III Business profits and income from other independent activities	12
IV Passive income	17
V Income from employment and other dependent activities	23
VI Methods for relieving double taxation	28
VII The non-discrimination principle	30
VIII The mutual agreement procedure and international mutual assistance in tax matters	32
1 Argentina	37
1.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Argentine tax treaties	37
1.2 Personal and material scope of the tax treaties	43
1.3 Business profits and other independent activities	45
1.4 Dividends, interest, royalties and capital gains	51
1.5 Employment and other dependent activities	57
1.6 Methods to avoid double taxation	60
1.7 Non-discrimination	62
1.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	63
1.9 Conclusions	66
2 Australia	68
2.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Australian tax treaties	68
2.2 Personal and material scope of the tax treaties	70
2.3 Business profits and other independent activities	73
2.4 Dividends, interest, royalties and capital gains	81
2.5 Employment and other dependent activities	95
2.6 Methods to avoid double taxation	99
2.7 Non-discrimination	101
2.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	104
2.9 Conclusion	108
3 Austria	110
3.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Austrian tax treaties	110
3.2 Personal and material scope of the tax treaties	112
3.3 Business profits and other independent activities	115
3.4 Dividends, interest, royalties and capital gains	122
3.5 Employment and other dependent activities	127
3.6 Methods to avoid double taxation	132
3.7 Non-discrimination	135
3.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	138
4 Belgium	142
4.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Belgian tax treaties	142
4.2 Personal and material scope of the tax treaties	146
4.3 Business profits and other independent activities	150
4.4 Dividends, interest, royalties and capital gains	154
4.5 Employment and other dependent activities	158
4.6 Methods to avoid double taxation: Article 23	161
4.7 Non-discrimination: Article 24	166
4.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	167
5 Brazil	171
5.1 The relevance of the OECD and UN Model Conventions and their Commentaries on the interpretation of Brazilian tax treaties	171
5.2 Personal and material scope of the tax treaties	173
5.3 Business profits and other independent activities	177
5.4 Dividends, interest, royalties and capital gains	181
5.5 Employment and other dependent activities	192
5.6 Methods to avoid double taxation: Article 23	197
5.7 Non-discrimination: Article 24	199
5.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	200
6 Canada	203
6.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Canadian tax treaties	203
6.2 Personal and material scope of the tax treaties	209
6.3 Business profits and other independent activities	213
6.4 Dividends, interest, royalties and capital gains	216
6.5 Employment and other dependent activities	220
6.6 Methods to avoid double taxation: Article 23	224
6.7 Non-discrimination: Article 24	226
6.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	227
6.9 Conclusions	231
7 Chile	232
7.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Chilean tax treaties	232
7.2 Personal and material scope of the tax treaties	235
7.3 Business profits and other independent activities	238
7.4 Dividends, interest, royalties and capital gains	245
7.5 Employment and other dependent activities	250
7.6 Methods to avoid double taxation: Article 23	253
7.7 Non-discrimination: Article 24	254
7.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	257
8 China	261
8.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Chinese tax treaties	261
8.2 Personal and material scope of the tax treaties: Articles 1, 2 and 4	263
8.3 Business profits and other independent activities	270
8.4 Dividends, interest, royalties and capital gains: Articles 10, 11, 12 and 13	276
8.5 Employment and other dependent activities	282
8.6 Methods to avoid double taxation: Article 23	285
8.7 Non-discrimination: Article 24	288
8.8 Mutual agreement and exchange of information	290
9 Colombia	294
9.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Colombian tax treaties	294
9.2 Personal and material scope of the tax treaties	296
9.3 Business profits and other independent activities	298
9.4 Dividends, interest, royalties and capital gains	301
9.5 Employment and other dependent activities	304
9.6 Methods to avoid double taxation	305
9.7 Non-discrimination	306
9.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	308
10 Croatia	311
10.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Croatian tax treaties	311
10.2 Personal and material scope of the tax treaties	313
10.3 Business profits and other independent activities	316
10.4 Dividends, interest, royalties and capital gains	320
10.5 Employment and other dependent activities	321
10.6 Methods to avoid double taxation	323
10.7 Non-discrimination	323
10.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	324
11 The Czech Republic	325
11.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Czech tax treaties	325
11.2 Personal and material scope of the tax treaties	327
11.3 Business profits and other independent activities	331
11.4 Dividends, interest, royalties and capital gains	341
11.5 Employment and other dependent activities	345
11.6 Methods to avoid double taxation	348
11.7 Non-discrimination	349
11.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	353
12 Estonia	356
12.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Estonian tax treaties	356
12.2 Personal and material scope of the tax treaties	358
12.3 Business profits and other independent activities	364
12.4 Dividends, interest, royalties and capital gains	369
12.5 Employment and other dependent activities	372
12.6 Methods to avoid double taxation: Article 23	378
12.7 Non-discrimination: Article 24	379
12.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	383
13 Finland	387
13.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Finnish tax treaties	387
13.2 Personal and material scope of the tax treaties	390
13.3 Business profits and other independent activities	394
13.4 Dividends, interest, royalties and capital gains	397
13.5 Employment and other dependent activities	404
13.6 Methods to avoid double taxation	409
13.7 Non-discrimination	414
13.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	416
14 France	421
14.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of French tax treaties	421
14.2 Personal and material scope of the tax treaties: Articles 1, 2 and 4	430
14.3 Business profits and other independent activities	441
14.4 Dividends, interest, royalties and capital gains	445
14.5 Employment and other dependent activities	453
14.6 Methods to avoid double taxation	454
14.7 Non-discrimination	459
14.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	463
15 Germany	466
15.1 The importance of the OECD and UN Model Conventions and their Commentaries for the interpretation of German tax treaties	466
15.2 Personal and material scope of the tax treaties	471
15.3 Business profits and other independent activities	476
15.4 Dividends, interest, royalties and capital gains	483
15.5. Employment and other dependent activities	489
15.6 Methods to avoid double taxation	492
15.7 Non-discrimination	495
15.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	496
16 Hong Kong	501
16.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Hong Kong tax treaties	501
16.2 Personal and material scope of the tax treaties	502
16.3 Business profits and other independent activities	508
16.4 Dividends, interest, royalties and capital gains	514
16.5 Employment and other dependent activities	519
16.6 Methods to avoid double taxation	524
16.7 Non-discrimination	527
16.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	529
16.9 Concluding remarks	530
17 Hungary	532
17.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Hungarian tax treaties	532
17.2 Personal and material scope of the tax treaties	534
17.3 Business profits and other independent activities	539
17.4 Dividends, interest, royalties and capital gains	544
17.5 Employment and other dependent activities	545
17.6 Methods to avoid double taxation	546
17.7 Non-discrimination	546
17.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	547
18 India	549
18.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Indian tax treaties	549
18.2 Personal and material scope of the tax treaties	556
18.3 Business profits and other independent activities	563
18.4 Dividends, interest, royalties and capital gains	580
18.5 Employment and other dependent activities	586
18.6 Methods to avoid double taxation: Article 23	591
18.7 Non-discrimination: Article 24	592
18.8 Mutual agreement, exchange of information and collection of taxes	595
19 Italy	598
19.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Italian tax treaties	598
19.2 Personal and material scope of the tax treaties	602
19.3 Business profits and other independent activities	608
19.4 Dividends, interest, royalties and capital gains	615
19.5 Employment and other dependent activities	624
19.6 Methods to avoid double taxation: Article 23	625
19.7 Non-discrimination: Article 24	628
19.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	630
20 Lebanon	633
20.1 The relevance of the OECD and the UN Model Conventions and their Commentaries for the interpretation of Lebanese tax treaties	633
20.2 Personal and material scope of the tax treaties	636
20.3 Business profits and other independent activities	638
20.4 Dividends, interest, royalties and capital gains	641
20.5 Employment and other dependent activities	643
20.6 Methods to avoid double taxation	645
20.7 Non-discrimination	646
20.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	646
21 Liechtenstein	649
21.1 The relevance of the OECD and the UN Model Conventions and their Commentaries for the interpretation of Liechtenstein tax treaties	649
21.2 Personal and material scope of the tax treaties	650
21.3 Business profits and other independent activities: Articles 5, 7, 8, 9, 16 and 17	654
21.4 Dividends, interest, royalties and capital gains: Articles 10–13	656
21.5 Employment and other dependent activities: Articles 15, 18, 19 and 20	658
21.6 Methods to avoid double taxation: Article 23	660
21.7 Non-discrimination: Article 24	661
21.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	663
22 The Netherlands	666
22.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Dutch tax treaties	666
22.2 Personal and material scope of the tax treaties	670
22.3 Business profits and other independent activities	679
22.4 Dividends, interest, royalties and capital gains	700
22.5 Employment and other dependent activities	707
22.6 Methods to avoid double taxation	723
22.7 Non–discrimination	726
22.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	728
23 New Zealand	735
23.1 The relevance of the OECD Model Conventions and Commentaries for the interpretation of New Zealand tax treaties	735
23.2 Personal and material scope of the tax treaties	738
23.3 Business profits and other independent activities	740
23.4 Dividends, interest, royalties and capital gains	745
23.5 Employment and other dependent activities	754
23.6 Methods to avoid double taxation: Article 23	757
23.7 Non-discrimination: Article 24	760
23.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	763
23.9 Conclusion	767
24 Norway	768
24.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Norwegian tax treaties	768
24.2 Personal and material scope of the tax treaties	775
24.3 Business profits and other independent activities	782
24.4 Dividends, interest, royalties and capital gains	784
24.5 Employment and other dependent activities	788
24.6 Methods to avoid double taxation: Article 23	789
24.7 Non-discrimination: Article 24	791
24.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	792
25 Peru	796
25.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Peruvian tax treaties	796
25.2 Personal and material scope of the tax treaties	799
25.3 Business profits and other independent activities	801
25.4 Dividends, interest, royalties and capital gains	807
25.5 Employment and other dependent activities	810
25.6 Methods to avoid double taxation: Article 23	813
25.7 Non-discrimination	814
25.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	816
26 Poland	820
26.1 The relevance of the OECD and the UN Model Conventions and their Commentaries for the interpretation of Polish tax treaties	820
26.2 Personal and material scope of the tax treaties	822
26.3 Business profits and other independent activities	827
26.4 Dividends, interest, royalties and capital gains	836
26.5 Employment and other dependent activities	841
26.6 Methods to avoid double taxation	845
26.7 Non-discrimination	848
26.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	850
27 Portugal	855
27.1 The relevance of the OECD and the UN Model Conventions and their Commentaries for the interpretation of Portuguese tax treaties	855
27.2 Personal and material scope of the tax treaties	858
27.3 Business profits and other independent activities	863
27.4 Dividends, interest, royalties and capital gains	872
27.5 Employment and other dependent activities	876
27.6 Methods to avoid double taxation	880
27.7 Non-discrimination	882
27.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	884
27.9 Concluding remarks	887
28 Romania	888
28.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Romanian tax treaties	888
28.2 Personal and material scope of the tax treaties	892
28.3 Business profits and other independent activities	895
28.4 Dividends, interest, royalties and capital gains	903
28.5 Employment and other dependent activities	909
28.6 Methods to avoid double taxation: Article 23	911
28.7 Non-discrimination: Article 24	912
28.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	913
29 The Russian Federation	915
29.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Russian tax treaties	915
29.2 Personal and material scope of the tax treaties	920
29.3 Business profits and other independent activities	925
29.4 Dividends, interest, royalties and capital gains	931
29.5 Employment and other dependent activities	933
29.6 Methods to avoid double taxation	935
29.7 Non-discrimination	937
29.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	940
29.9 Conclusion	943
30 Serbia	944
30.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Serbian tax treaties	944
30.2 Personal and material scope of the tax treaties	951
30.3 Business profits and other independent activities	955
30.4 Dividends, interest, royalties and capital gains	962
30.5 Employment and other dependent activities	966
30.6 Methods to avoid double taxation	969
30.7 Non-discrimination	970
30.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	971
31 Slovakia	973
31.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Slovak tax treaties	973
31.2 Personal and material scope of the tax treaties	975
31.3 Business profits and other independent activities	978
31.4 Dividends, interest, royalties and capital gains	983
31.5 Employment and other dependent activities	989
31.6 Methods to avoid double taxation: Article 23	992
31.7 Non-discrimination: Article 24	993
31.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	994
32 Slovenia	998
32.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Slovenian tax treaties	998
32.2 Personal and material scope of the tax treaties	1001
32.3 Business profits and other independent activities	1003
32.4 Dividends, interest, royalties and capital gains	1007
32.5. Employment and other dependent activities	1015
32.6 Methods to avoid double taxation	1018
32.7 Non-discrimination	1019
32.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	1022
33 Spain	1026
33.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Spanish tax treaties	1026
33.2 Personal and material scope of the tax treaties	1031
33.3 Business profits and other independent activities	1034
33.4 Dividends, interest, royalties and capital gains	1039
33.5 Employment and other dependent activities	1043
33.6 Methods to avoid double taxation	1047
33.7 Non-discrimination	1050
33.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	1053
34 Sweden	1056
34.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Swedish tax treaties	1056
34.2 Personal and material scope of the tax treaties	1060
34.3 Business profits and other independent activities	1064
34.4 Dividends, interest and royalties and capital gains	1067
34.5 Employment and other dependent activities	1072
34.6 Methods to avoid double taxation	1075
34.7 Non-discrimination	1078
34.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	1079
35 Uganda	1083
35.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of Ugandan tax treaties	1083
35.2 Personal and material scope of the tax treaties	1084
35.3 Business profits and other independent activities	1088
35.4 Dividends, interest, royalties and capital gains	1092
35.5 Employment and other dependent activities	1094
35.6 Methods to avoid double taxation	1096
35.7 Non-discrimination	1097
35.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	1098
35.9 Conclusion	1099
36 The UK	1101
36.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of UK tax treaties	1101
36.2 Title and personal and material scope of the tax treaties	1114
36.3 Business profits and other independent activities	1121
36.4 Dividends, interest, royalties and capital gains	1129
36.5 Employment and other dependent activities	1134
36.6 Methods to avoid double taxation: Article 23	1137
36.7 Non-discrimination	1138
36.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	1144
37 The USA	1149
37.1 The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of US tax treaties	1149
37.2 Personal and material scope of the tax treaties	1153
37.3 Business profits and other independent activities	1158
37.4 Dividends, interest, royalties and capital gains	1166
37.5 Employment and other dependent activities	1170
37.6 Methods to avoid double taxation	1171
37.7 Non-discrimination	1174
37.8 Mutual agreement, exchange of information and mutual assistance in the collection of taxes	1175
37.9 Conclusions	1178
Index	1180

Michael Lang
Wirtschaftsuniversitat Wien, Austria

Pasquale Pistone
Wirtschaftsuniversitat Wien, Austria

Josef Schuch
Wirtschaftsuniversitat Wien, Austria

Claus Staringer
Wirtschaftsuniversitat Wien, Austria