Tax Treaty Case Law around the Globe 2016

S. 245Chapter 21 Austria: Entertainers under Article 17

Michael Lang, Selina Siller and Stephanie Zolles

21.1. Introduction

Under article 17 of the OECD Model (2014), income derived by a resident of a contracting state as an entertainer or sportsperson from his personal activities as such exercised in another contracting state is subject to taxation in the source state. The provision explicitly prescribes its priority over articles 7 and 15 of the OECD Model (2014). In contrast to articles 7 and 15, article 17(1) of the OECD Model (2014) does not require a permanent establishment (PE), an employer or a prolonged presence in the source state, but solely prescribes that the state in which the activity takes place is entitled to tax. The crucial element for the application of article 17 of the OECD Model (2014) lies in its personal scope: neither article 17 nor any other provision of the OECD Model (2014) provides a definition of who shall be considered an “entertainer” or “sportsperson” under article 17(1) of the OECD Model (2014). The prevailing opinion prefers to apply an autonomous approach whereby the terms are to be interpreted irrespective of their meaning under national laws.

Article 17...