International and European Tax Law Summary Part 2 / 4
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Course
International and European Tax Law
Institution
Maastricht University (UM)
THis is the second part of the IETL Summary notes I used for the preparation to the exam (Score 9.0). It contains all relevant case laws, references to the OECD Commentaries and examples. Please also see Parts 1, 3 and 4! :)
3)
Historical
historical development of provision, changes in
a
wording orpurpose
=
4)
systematical
See the law in its
position within the treaty; its
=
scope ; meaning
5)
Comparison
=
compare to other States /DTT
Problemsotlhlerpretation
→
Treaties are not a law assuch
a law is enacted
by a
legislator ,
whereas the Treaty is a
signed contract of two parties
1
depends on domestic law of the CS
,
whether the
Treaty is considered to be a lawandprevails over domestic law
↳
monoistic Ct)
system :
↳ dualistic
system Treaty is Treaty is on the same level
H
:
,
a contract which needs to be implemented into dom law
.
;
as
domestic law
;
no
hierarchy
stneinlentionofthepam.es#
Divorcing
starting point to determine the intention OHhe Parties
=
? acc to some dom laws the intention or purpose of the
. .
you
can
go beyond
the
wording ifyou can prove that
,
law can (
be different than the
wording take historical background into account)
Dimension !
?
Wording t intention
↳
circumventing the intention of the tax Treaty by sticking to the exact
wording
?since DTTare should
negotiated contracts ,
there be
meeting minutes
1no!Would restrict
free opinion exChang
, 37commentan.es
provideguidance on how to interpret the provisions
-
? not
binding
4)
domestica
AA 312 )
only if no definition within
treaty
-
.
Applicabkkalesandpnha.pl#1)lhKrnationalPUblicLaw
civiennaconvention
⇒ AA 31
.
-
33
recognizedinternational costumany law
-
binding for all MS and Non Ms
-
-
conflict between intention x wording notall &
be solved
by wording only tax meaning day use goodfaith
-
to ⇒
,
wording has priority over intention
it
prohibition to use
testimony/intention of the CS
; bilingualand multilingual agrmts are equally binding isin case of discrepancies
.
(
otherwise Treaties won'tfunction
properly if interpretation diHers between Cs)
, choose the one that reconciles all texts the best
blstataleotlntemationalcoun-otfastia-D.TT
don't need to be taken to KF, because their rules are self executing
-
-
DITprotect Taxpayer directly andprovides him with the
ability toclaim rightsprovidedin front of domestic court
A domestic court will have to decide like the Icf :
⇒ AA
. 38 of Statute of ICF applicable .
.
A court is
obligedto take international conventions
into account
C)
Domestica
some countries have specific rules on how to interpret
-
international conventions fti Canada) .
.
-
some have unwritten rules for interpretation A.i. France )
-
some have specific rules on tax law interpretation
It i.. indoubt of interpretation infavor of the TP
general
domestic
principles
-
Ilerent
di possibilities ofjudges in di
H countries
-
.
dlprinapleotcommoninterpretation
CS supposed to
find commongroundfor interpretation of Treaties
-
take and
into account the courts decisionsof the otherCS,
foreign law foreign foreign
'
scholars court decisions
-
,
a limited to Inot
language binding
, e) Tax Treaties
¥ih0nswithin the Treaties CAA . 3-5)
domestic law CAA 3121 6 ,
references to )
-
- . .
.
,
3121
general interpretation
rule AA
-
.
reference to
commentary
-
HAA.to/2)OECDMTC-
④when does the context require otherwise ?
some : domestic law to
approachfirst
others dom law as last resort
:
.
which States law to ?
apply
→ :
-
OECD approach: HA 23 shows that, when the otherstate
.
has taxed in accordance with the Treaty we will avoid Double
Taxation
by credit/exemption and therefore, the R State is bound
-
by the decision of interpretationofthe
SState
-
A case law shows that almost
nobodyfollows
glhutuaetgreeme.ms?DTT are not
binding for courts 1 not ratified or transferred into domestic law
;
lower rank
,
override
through
court decision possible
Quaciticationconfcicts
Qualification of income of source state binding for Residence State R State must provide
-
is
relief
→ -
1 AA 23
para 32.1 Ot
-
.
2
difference in domestic law
para .
32.3 of AA 23 -
Qualification of source state is not
binding if
-
'
,
}para
different interpretation of facts
°
32
so
. .
H interror of treat
di
Z provisions
.
.
-
Double Non
-
-
taxation AA 23141para
.
.
32.6 t 32 -
t →
not applicable if S State
applies DTC and concludes
-
that it State K has to
may tax :
avoid DT even if States doesnt
,
tax
-
applicable , ifStates exempts or
does not WHT
UY
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