Some Reflections on the Proposed Revisions to the OECD Model and Commentaries, and on the Multilateral Instrument, with Respect to Fiscally Transparent Entities

This material was first published by Sweet & Maxwell Limited in Angelo Nikolakakis, Stephane Austry, John Avery Jones, Philip Baker, Peter Blessing, Robert Danon, Shefali Goradia, Johann Hattingh, Koichi Inoue, Juergen Luedicke, Guglielmo Maisto, Toshio Miyatake, Kees van Raad, Richard Vann and Bertil Wiman, “Some Reflections on the Proposed Revisions to the OECD Model and Commentaries, and on the Multilateral Instrument, With Respect to Fiscally Transparent Entities”, British Tax Review, Vol. 2017, No. 3, pp. 295-373, 2017 and is reproduced by agreement with the Publishers. This article sets out some reflections of the authors on those aspects of the OECD’s October 2015 final report on Neutralising the Effects of Hybrid Mismatch Arrangements (the Hybrids Report) that relate to revisions to the OECD Model to add a specific provision on fiscally transparent entities (as a new Article 1(2)), and to build on the Commentaries already in place in this regard (the HR Proposals). It also considers the similar and related provisions contained in the multilateral instrument to implement the tax treaty related BEPS measures (the MLI) that was released on 24 November 2016. The authors conduct an extensive review of the issues and raise a number of interpretive and technical questions, as well as policy considerations. This review is set against the backdrop of an examination of similar provisions (or provisions with similar purposes) in the US Models and in various existing bilateral treaties, as well as under domestic laws, of the countries represented by the authors. The authors also provide some observations with respect to potential scope and drafting or implementation of alternatives, with a view to contributing to the ongoing international debate and reform project