BEPS: It Is Your Turn Now- Prevent Treaty Abuse (Action 6)

BEPS: It Is Your Turn Now- Prevent Treaty Abuse (Action 6)

Sun 23 Nov 2014

Public comments are invited on a discussion draft which deals with follow-up work mandated by the Report on Action 6 (“Prevent the granting of treaty benefits in inappropriate circumstances”) of the BEPS Action Plan on 21 November 2014.

The OECD Action Plan on Base Erosion and Profit Shifting identifies 15 actions to address BEPS in a comprehensive manner and sets deadlines to implement these actions.

Paragraph 5 of the Report on Action 6 (“Prevent the granting of treaty benefits in inappropriate circumstances”) indicated that follow-up work would be done on certain aspects of the Report:

“… it is recognised that further work will be needed with respect to the precise contents of the model provisions and related Commentary included in Section A of this report, in particular the LOB rule. Further work is also needed with respect to the implementation of the minimum standard and with respect to the policy considerations relevant to treaty entitlement of collective investment vehicles (CIVs) and non-CIV funds. The model provisions and related Commentary included in Section A of this report should therefore be considered as drafts that are subject to improvement before their final version is released in September 2015…”

This discussion draft deals with the follow-up work related to the contents of the model provisions and related Commentary included in Section A of the Report, in particular the LOB rule, as well as with issues related to the treaty entitlement of collective investment vehicles (CIVs) and non-CIV funds (the result of the discussions on how countries intend to implement the minimum standard described in the Report will be included in the revised version of the report that will be released in 2015).

 

A. Issues related to the LOB provision

  1. Collective investment vehicles: application of the LOB and treaty entitlement
  2. Non-CIV funds: application of the LOB and treaty entitlement
  3. Commentary on the discretionary relief provision of the LOB rule
  4. Alternative LOB provisions for EU countries
  5. Requirement that each intermediate owner be a resident of either Contracting State
  6. Issues related to the derivative benefit provision
  7. Provisions dealing with “dual-listed company arrangements”
  8. Timing issues related to the various provisions of the LOB rule
  9. Conditions for the application of the provision on publicly-listed entities
  10. Clarification of the “active business” provision

B. Issues related to the PPT rule

  1. Application of the PPT rule where benefits are obtained under different treaties
  2. Suggestion that countries consider establishing some form of administrative process
  3. Whether the application of the PPT rule should be excluded from the arbitration process
  4. Aligning the Commentary on the PPT rule and the LOB discretionary relief provision
  5. Whether some form of discretionary relief should be provided under the PPT rule
  6. Drafting of the alternative “conduit-PPT rule”
  7. List of examples in the Commentary on the PPT rule

C. Other issues

  1. Application of the new treaty tie-breaker rule
  2. Design and drafting of the rule applicable to permanent establishments located in third States
  3. Proposed Commentary on the interaction between tax treaties and domestic anti-abuse rules

As part of the transparent and inclusive consultation process mandated by the Action Plan, the Committee on Fiscal Affairs (CFA) invites interested parties to send comments on this discussion draft, which includes a number of questions and proposals concerning aspects of the Report on Action 6 on which further work is being carried on. The views and proposals included in this discussion draft do not represent the consensus views of the CFA or its subsidiary bodies but are intended to provide stakeholders with substantive proposals for analysis and comment.

Comments should be sent by 9 January 2015 at the latest (no extension will be granted) and should be sent by email to taxtreaties@oecd.org in Word format (in order to facilitate their distribution to government officials). They should be addressed to Marlies de Ruiter, Head, Tax Treaties, Transfer Pricing and Financial Transactions Division, OECD/CTPA.

Public consultation meeting

Persons and organisations who will send comments on this consultation document are invited to indicate whether they wish to speak in support of their comments at a public consultation meeting on Action 6 that is scheduled to be held in Paris at the OECD Conference Centre on 22 January 2015. Persons selected as speakers will be informed by email by 16 January at the latest.

This consultation meeting will be open to the public and the press. Due to space limitations, priority will be given to persons and organisations who register first (we reserve the right to limit the number of participants from the same organisations). Persons wishing to attend this public consultation meeting should fill out their request for registration on line as soon as possible and by 9 January 2015 at the latest. Confirmation of participation, including venue access details, will be sent by email to participants by 16 January at the latest.

This meeting will also be broadcast live on the internet and can be accessed on line. No advance registration will be required for this internet access.

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