The limits of legal tax planning - Principal Purposes Test

According to the OECD, the majority of double taxation abuse lies in 'base erosion and profit shifting'. On 5 October 2015, the OECD therefore published BEPS Action 6, an action programme within the BEPS project, to bring about significant changes to the OECD Model Tax Convention and the OECD Model Tax Commentary with regard to its undesirable consequences. BEPS Action 6 aims to reduce tax abuse by introducing anti-abuse provisions, including a 'principal purpose test' to be carried out. This paper deals with the scope of application of these anti-abuse provisions. In particular, it focuses on the very atypical nature of the constituent elements that must be fulfilled. In addition, this paper explains phenomena such as 'treaty shopping' and 'hybrid mismatches' that arise from the application of double taxation agreements. Due to the recently published draft assessment of the Annual Tax Law 2018, the planned amendment to the abuse provision of Section 22 BAO will be presented and explained in conclusion.

Autorentext

Mr Alois W. Lampl is a trainee at an international tax consultancy firm and works at the Vienna University of Economics and Business.

Klappentext

According to the OECD, the majority of double taxation abuse lies in 'base erosion and profit shifting'. On 5 October 2015, the OECD therefore published BEPS Action 6, an action programme within the BEPS project, to bring about significant changes to the OECD Model Tax Convention and the OECD Model Tax Commentary with regard to its undesirable consequences. BEPS Action 6 aims to reduce tax abuse by introducing anti-abuse provisions, including a 'principal purpose test' to be carried out. This paper deals with the scope of application of these anti-abuse provisions. In particular, it focuses on the very atypical nature of the constituent elements that must be fulfilled. In addition, this paper explains phenomena such as 'treaty shopping' and 'hybrid mismatches' that arise from the application of double taxation agreements. Due to the recently published draft assessment of the Annual Tax Law 2018, the planned amendment to the abuse provision of Section 22 BAO will be presented and explained in conclusion.