Tax Treaty Case Law around the Globe 2017
1. Aufl. 2018
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S. 285Netherlands: The Impact on Tax Treaties of a Legal Fiction included in National Tax Law (the “customary wage rule”)
Eric C.C.M. Kemmeren
1. S. 287Introduction
Legal fictions have been included in various tax laws in many countries. In respect of tax treaties, they may give rise to various questions, such as:
Does the inclusion of a legal fiction in a national tax law after the conclusion of a tax treaty constitute tax treaty override?
Does the inclusion of a legal fiction in a national tax law before the conclusion of a tax treaty constitute tax treaty override?
The latter question is also the subject of this paper. In 1997, the Netherlands introduced what is known as the customary wage rule. The question is whether the inclusion of this rule constitutes a tax treaty override in respect of tax treaties concluded after 1997. Since quite a number of countries have included legal fictions in their national laws, the answer to this question may not only be relevant for the Netherlands, but may have a wider impact. Therefore, the answer provided by the Dutch Supreme Court (in Dutch: Hoge Raad (HR)) may, both from an academic and practical point of view, contribute to the learning processes in other...