Tax Treaty Case Law around the Globe 2013

1. S. 327 Introduction

Over the last two years the cases dealing with thin capitalization have been one of the most important categories of tax disputes in the Russian commercial courts. This can be explained by the fact that initially the loan financing of investment projects was quite widely spread and many taxpayers were fairly active in using it. The main issue which, as a rule, now arises before the courts when hearing cases of this nature is to what extent the non-discrimination clause of the relevant tax treaty (Article 24 of the OECD MC) hinders the application of the thin capitalization rules.

Before the case law changed in 2011, taxpayers were nearly always able to expect a positive solution to cases of this nature due to extensive interpretation of the non-discrimination clause by the courts. The radical change in the case law is connected with the decision of the Commercial Court of the Russian Federation in the Severniy Kuzbass case of 15 November 2011. The main arguments and reasoning for taking such a decision have already been discussed in our previous publications and boil down to the conclusion of the Court that between the non-discrimination clause of the respective ta...