Tax Treaty Case Law around the Globe 2019
1. Aufl. 2020
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S. 245Test for meeting the beneficial owner requirement under Art. 10 of DTCs
Danil V. Vinnitskiy
S. 2461. Introduction
Ruling of the RF Supreme Court № 304-КГ18-19526/ A27-27287-2016 of (OAO «Shakhta Polosukhinskaya» Case) on the interpretation of article 10 of the Russia-Cyprus Tax Treaty is quite an important example of the application of the test regarding the beneficial owner requirement. The case is based on facts relevant to the 2012 – 2013 period, i.e. to a period during which the statutory domestic regulation on the beneficial owner requirement was not in force in Russia. Taking that into account, the Court of First Instance held and directly indicated in its reasoning, that the judgment should be founded on the interpretation of the relevant DTC, the OECD Commentaries and the clarifications and rulings of the RF Ministry of Finance. It seems this approach should be understood in the general context of the development of Russian Case Law on tax disputes (in particular cross-border tax disputes).
In particular, the origin of the respective judicial doctrines is evidently connected with the fact that the Russian tax system generally prohibits a “formal approach” in the area of ta...