Tax Treaty Case Law around the Globe 2022

7.1. Introduction

In Case No. 8500 of 25 March 2021, the Joint Chambers of the Italian Supreme Court addressed the topic of whether OECD reports and later versions of the OECD Commentary can be used to interpret provisions of older double tax treaties.

According to the OECD, existing double tax treaties should be, as far as possible, interpreted in the spirit of the revised Commentaries. Amendments to the OECD Model or changes to the OECD Commentary that are a direct result of the amendments to the Model are not relevant to the interpretation of previously concluded double tax treaties if the provisions of those treaties are different “in substance” from the amended provisions of the OECD Model. However, other changes in the Commentary are normally applicable to the interpretation of double tax treaties signed before their adoption. This is because they reflect the consensus of the OECD member countries as to the proper interpretation of existing provisions and their application to specific situations. In a nutshell, in the OECD’s view, if the substance of the treaty provision remains the same, later versions of the OECD Commentary may be used to interpret older double tax treatie...