Tax Treaty Case Law around the Globe 2012

Belgium: Employment Agreement for Purposes of Article 15 of the OECD Model

3.1. Introduction

Article 15 of the OECD Model fails to define many terms and expressions used therein. If the interpretation of these terms and expressions is left to the domestic laws of the states applying the treaty, as article 3(2) of the OECD Model prescribes, classification conflicts may arise where these domestic laws differ from each other. Such conflicts may lead to unresolved double taxation or double non-taxation. The case considered here case deals with the classification conflict that arises in connection with the undefined term “employment” in article 15 of the OECD Model and the Belgium-Netherlands tax treaty that follows it.

3.2. Facts of the case

An individual resident of Belgium is the manager of a Belgian limited liability company (BelCo). The individual is referred to here as “the manager” (“niet-statutair zaakvoerder”). The manager does not have an employment agreement with BelCo. For Belgian labour law and social security purposes, he was considered to render services to BelCo as an independent contractor. This was respected by the Belgian tax authorities. In the taxable year 2003, the man...