Praxis des Internationalen Steuerrechts

S. 451Tax Avoidance involving Tax Treaties

S. 453I. Introduction

It is a privilege to be able to contribute these comments to a book in honour of Helmut Loukota. I first met Helmut Loukota in the late 1980s as a delegate to the OECD Working Party No. 1 and, over the last 15 years, I have been fortunate to witness his influence on the group’s work dealing with the OECD Model Tax Convention, in particular as regards tax avoidance strategies using tax treaties and also the application of tax treaties to partnerships. The former topic is one that led to recent changes to the OECD Model Tax Convention and these changes are the starting point of this article.

The purpose for the changes was to clarify how tax treaties interact with domestic anti-avoidance rules and, more generally, how countries can address tax treaty abuses.

These topics have long been a source of concern for the OECD. The introduction to the 1963 Draft Convention noted that “… the Fiscal Committee has recently brought under study the question of the improper use of double taxation Conventions and of fiscal evasion which can result from the interaction of the Conventions and the domestic laws.” The 1977 Model described the outcome of t...