The Limitation on Benefits (LOB) Provision in BEPS Action 6/MLI: Ineffective Overreaction of Mind-Numbing Complexity – Part 1

Abstract

This comprehensive two-part article addresses the usefulness of the limitation on benefits (LOB) rule in the base erosion and profit shifting (BEPS) Action 6 project and a Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI) to prevent abusive treaty shopping – the most prevalent and typical form of treaty abuse. Although a certain flexibility in the prevention of treaty abuse was envisaged by the BEPS Action 6/MLI, only twelve out of the sixty-eight Signatories to the Multilateral Instrument (MLI) have so far chosen to add the MLI’s LOB rule to the principal purposes test (PPT). Such little interest in implementing the MLI’s LOB rule may have something to do with its mind-numbing complexity. Or perhaps tax administrations simply prefer to have more discretionary power under the PPT? This study interrogates this unexplored research area by performing a comprehensive, in-depth analysis of abusive treaty shopping and the MLI’s LOB rule. The overarching question pertains to the effectiveness of the MLI’s LOB rule in the prevention of treaty shopping. In the event of critical findings, de lege ferenda conclusions will follow.