The Avoidance of Double Non-taxation in Double Tax Treaty Law: A Critical Analysis of the Subject-To-Tax Clause Recommended by the European Commission

Countries around the world have traditionally treated tax planning as a legitimate practice, unless the ambiguous borders to abusive behavior have been crossed. However, over time, business structures have become more sophisticated and tax authorities have become involved in keeping pace with the continuous improvement of international tax planning. By exploiting the inconsistencies between domestic tax rules and bilateral double taxation conventions it is even possible that certain income remains completely untaxed. In order to properly address this issue of double non-taxation, the European Commission - alongside the work of the OECD on Base Erosion and Profit Shifting (BEPS) - issued a recommendation on aggressive tax planning. The EU Member States are, inter alia, being encouraged to revise their tax treaty policies. The European Commission recommends the incorporation of a general subject-to-tax clause in the Member States' bilateral double taxation conventions. This article analyses whether the Member States are well advised to follow this recommendation.