Conflicts of Qualification and Interpretation: How Should Developing Countries React?

Abstract

From October 27 to 31, 2014, the tenth session of the United Nations (UN) Committee of Experts on International Cooperation in Tax Matters was held at the Palais des Nations in Geneva. During this meeting, it was, inter alia, discussed whether the OECD’s approach regarding conflicts of qualification and conflicts of interpretation shall be incorporated into the UN MC and the respective commentary. Whereas the Committee agreed on adopting the OECD’s interpretation of Articles 23 A(1) and 23 B(1) OECD MC (partly referred to as the “new approach”), some members argued that “including paragraph 4 of Article 23A of the OECD Model in the UN Model would not be desirable” or even “detrimental to the interests of the source state”. This article takes up these considerations by analyzing the OECD’s approach regarding conflicts of qualification and conflicts of interpretation in the light of the UN MC’s attempt to generally favor “retention of greater so called ‘source country’ taxing rights under a tax treaty – the taxation rights of the host country of investment – as compared to those of the ‘residence country’ of the investor”.