The Retroactive Effect Of Changes To The Commentaries On The Oecd Model
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The Legal Status of the OECD Commentaries
Since the mid-1980s, the legal basis of the practice of tax administrations and courts around the world to conform to the Commentaries when interpreting and applying bilateral tax treaties based on the OECD Model has been the subject of an ongoing academic debate. Recently the debate has received new impetus, and the primary focus is now on the general principles of international law. In particular, opinions differ on the question whether the Commentaries can be a source of legal obligations through the principles of acquiescence and estoppel, both of which are founded on considerations of good faith, and equity and provide specific protection of settled expectations. The reports contained in this book address two questions. The first is whether, under international law, the states parties to a tax treaty are legally bound by the OECD Commentaries when interpreting and applying the provisions of the treaty which are identical to those of the OECD Model. The second question is whether, under the contracting states' internal law, taxpayers and the tax authorities are equally bound to apply the Commentaries if and when the contracting states themselves are so bound under international law. The book brings various legal disciplines - public international law, international tax law, Community law and constitutional law - together in order to resolve the legal status of the Commentaries. Through interdisciplinary debate, the issues have been defined clearly and the exact points at which the opinions differ are identified, thereby resulting in a better understanding of the issues at hand.
Tax Treaty Interpretation in Light of the Vienna Convention on the Law of Treaties
Author: Georg Kofler et al.
language: en
Publisher: Kluwer Law International B.V.
Release Date: 2024-11-21
Despite the pivotal role of the Vienna Convention on the Law of Treaties (VCLT) in guiding treaty interpretation across various fields of international law, its application to tax treaties has received relatively little attention in academic literature. The complexity of cross-border taxation and the increasing importance of tax treaties in international commerce and investment influence the growing demand for a more thorough comprehension of the principles governing tax treaty interpretation. This book aims to alleviate this deficiency by providing a comprehensive analysis of the VCLT’s impact on tax treaty interpretation, thereby contributing to a more informed and nuanced understanding of this crucial aspect of international tax law. This book provides an in-depth analysis of the impact of the VCLT on interpreting and applying tax treaties. The topics include: the ordinary meaning, special meaning, and tax treaty interpretation; good faith and tax treaty interpretation; the interpretation of tax treaty terms in its context; subsequent agreements, subsequent practice, and tax treaty interpretation; authentic languages and tax treaty interpretation; customary international law and tax treaty interpretation; and the relation between Article 3 (2) OECD Model (2017) and the Interpretation Rules of the Vienna Convention on the Law of Treaties. The chapters are revised and expanded versions of their works presented at the 31st Viennese Symposium on International Tax Law held on 17 June 2024 at the Vienna University of Economics and Business (WU). Each contributor offers an in-depth analysis of a particular topic referencing the most recent scientific research.
The Retroactive Effect of Changes to the Commentaries on the OECD Model
This article discusses the temporal aspects of tax treaties. In particular, it focuses on whether the legitimate expectations of taxpayers are harmed when changes are made to the Commentaries on the OECD Model. How are taxpayers' rights considered when they have already entered into a certain factual or legal position?