Tax treaties and tax avoidance: application of anti-avoidance provisions

In 2003 the OECD revised the Commentary on Article 1 OECD MTC and concluded that domestic anti-abuse measures do not conflict with tax treaties.
In respect of certain measures such as GAARs, the Commentary states that such rules are part of the basic domestic tax rules for determining which facts give rise to tax liability. These rules are not addressed in tax treaties and are therefore not affected by them. On the basis of the more than 40 branch reports and the case law examined therein, the panel will discuss whether
domestic general and specific anti-avoidance measures with an international scope can indeed be reconciled with the countries’ treaty obligations. The panel will further discuss, again on the basis of the reported case law, whether courts address abuse of a tax treaty under domestic law principles, by treaty interpretation or by applying a general international law principle
against abuse. The panel will also deal with the application of general and specific anti-avoidance rules included in tax treaties, in particular those that aim at striking down treaty shopping.

General Reporter: Stef Van Weeghel (Netherlands)
Chair of the Plenary Session: Luc De Broe (Belgium)
Secretary: Reinout De Boer (Netherlands)
Panel Members: Nathalie Goyette (Canada), Philippe Martin (France), Roy Rohatgi (India),
Phil West (USA)