Tax Treaty Case Law around the Globe 2020

S. 253Chapter 20 Austria: Article 17 – Racing Days, Training Days and the Weighing of Each Race

Kasper Dziurdź

20.1. Introduction

Article 17 of the OECD Model Tax Convention (OECD Model) provides that both business profits and income from employment “derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsperson, from that resident’s personal activities as such exercised in the other Contracting State, may be taxed in that other State”. In contrast to article 7 on business profits, it does not matter whether an entertainer or sportsperson has a permanent establishment in the state of performance. In contrast to article 15 on income from employment, even the short-term presence of an entertainer or sportsperson allows the state of performance to tax income from that person’s personal activities as such.

The allocation rule for entertainers and sportspersons in article 17 raises several issues about its interpretation. First, it is not precisely clear as to which persons the provision covers (for example, is a soccer referee a “sportsperson”?). Second, article 17 addresses only income from pers...