The Missing Keystone of Income Tax Treaties

Abstract

This article follows a contribution by the same author, published in the previous edition of the World Tax Journal. The conclusion of that article was that seeking to define an attribution rule of sufficient generality for use in treaties is not a fruitful path to take. This article picks up the challenge of ascertaining how this aspect of the route to treaty entitlement should be defined. It identifies a structural flaw in the present OECD Model, which lies at the root of many current problems with the interpretation of treaties and which has sometimes led courts to take a very liberal view of treaty interpretation in order to reach the correct policy result.A new approach to treaty entitlement is proposed, starting from a conceptually sound base and setting out a logical route for establishing whether or not treaty benefits are available. The author tests the new approach by applying it to the fact patterns of various decided cases and to trusts, and demonstrates that the new approach produces appropriate policy results in the situations analysed. A rigorous application of the new approach leads to a radical restructuring of the OECD Model. The article pursues this restructuring exercise and, at the end, includes a draft text of a new model treaty incorporating the basic features of the new approach.