Worried for the exam? No time to prepare well structured notes to bring with you? No problem. These schemes are intended to provide a step-by-step approach to each and every topic covered. They will enable you to save time and answer comprehensively to all exam questions. They combine: (i) lecture ...
STEP 1: applicability of Article 17 OECD
First, assess which DTC applies in the given case (ie Arts. 1+2)
In order for Article 17 to apply, the following conditions must be met:
1) There is income
2) There is a ‘cross-border situation’
3) There is a ‘resident of a contracting state’ (Art. 4)
4) There income is derived by ‘entertainers and sport-persons as such’
5) Article 17 applies1
Paragraph 1
STEP 2: personal scope of application (ie who falls under the scope of the provision?)
Art. 17(1) deals with the income of entertainers and sportspersons
(i) Entertainers
- NOT defined -> domestic law relevant (Art. 3(2)).
- Art. 17(1) includes examples (theatre, motion picture, radio or television artiste, or a
musician) -> NOT exhaustive
- §3 -> stage performer, film actor or actor (including for instance a former sportsperson) in a
television commercial. Also included are activities which involve a political, social, religious
or charitable nature, if an entertainment character is present.
o It does NOT apply to -> a visiting conference speaker (e.g. a former politician who
receives a fee for a speaking engagement), to a model performing as such (e.g. a
model presenting clothes during a fashion show or photo session) rather than as an
entertainer or to administrative or support staff (e.g. cameramen for a film,
producers, film directors, choreographers, technical staff, road crew for a pop
group, etc.).
- Apportionment (§4) -> a person may be performing both activities falling under the scope
of Article 17 and others (such as employment activities (Art. 15)). In such cases, it is
necessary to determine the:
i. Predominant activities (the respective Article will then apply)
ii. If there are NO predominant activities, an apportionment is necessary2
(ii) Sportspersons
- NOT defined -> domestic law relevant (Art. 3(2)).
1
Remember: Article 17 prevails over both Arts. 7 (due to Art. 7(4) and Article 15).
2
Ie if the person performs 50% of the activities as an employee (es movie director) and 50% of the activities as an
entertainer (es the movie actor) -> the employment activities will be regulated (and taxed) according to Article 15 and
the entertainer activities will be regulated (and taxed) according to Article 17.
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