Judicial Interpretation of Tax Treaties

Judicial Interpretation of Tax Treaties

The Use of the OECD Commentary

Elgar Tax Law and Practice series

Carlo Garbarino

Judicial Interpretation of Tax Treaties is a detailed analytical guide to the interpretation of tax treaties at the national level. The book focuses on how domestic courts interpret and apply the OECD Commentary to OECD Model Tax Convention on Income and on Capital. Adopting a global perspective, the book gives a systematic presentation of the main interpretive proposals put forward by the OECD Commentary, and analyses selected cases decided in domestic tax systems in order to assess whether and how such solutions are adopted through national judicial process, and indeed which of these are of most practical value. The book operates on two levels: firstly it sets out a clear and comprehensive framework of tax treaty law, which will be an important tool for any tax practitioner. Secondly, the book provides crucial guidance on issues of tax treaty law as applied at domestic level, such as investment or business income, dispute resolution and administrative cooperation.

Chapter 14: MUTUAL AGREEMENT PROCEDURE (ART. 25)

Carlo Garbarino

Subjects: law - academic, tax law and fiscal policy

Extract

Art. 25 § 1 provides that if a person considers that the actions of one or both of the CSs result or will result for him in taxation not in accordance with the Convention, then he may, irrespective of the remedies provided by the domestic laws of those States, present his case to the Competent Authority of the CS of the RC of the CS of which he is a resident, or, if his case comes under § 1 of Art. 25, to the Competent Authority the CS of which he is a national. The case must be presented within three years from the first notification of the action resulting in taxation not in accordance with the Convention. Art. 25 § 1 regulates the essential structure of the procedure established by the Convention to achieve a mutual agreement between the Competent Authorities of the two CSs, but there are three types of MAP which are regulated by Art. 25 as a whole and which will be analyzed in this chapter: 1) type-1 (Art. 25 § 1, adjudicative MAP) – taxation not in accordance to the treaty (see infra at paras 14.05–14.42); 2) type-2 (Art. 25 § 3, first part, administrative MAP) – interpretation/ application of the treaty (see infra at paras 14.42–14.43); 3) type-3 (Art. 25 § 3, second part, legislative MAP) – elimination of double taxation in cases not provided for in the treaty (see infra at para 14.44). The MAP (in its three forms) is an alternative to domestic

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