Abhandlungen

Beneficial Ownership and Income Receipt under Double Taxation Conventions: Considerations following the Planet Case

Benjamin Malek

Zitiervorschlag: Benjamin Malek, Beneficial Ownership and Income Receipt under Double Taxation Conventions: Considerations following the Planet Case, ASA 91 | 4

On 20 May 2022, the French Conseil d’État delivered a judgment known as the Planet case. In this decision, the Court held as a matter of principle and for the first time that in a triangular situation, when passive income is paid to a person who is not the beneficial owner thereof, the double taxation convention applicable between France and the state of residence of the actual beneficial owner is directly applicable, irrespective of the recipient of the income not being a resident of that state. This article addresses the ramifications of this landmark decision, taking into consideration its grounding in international case law and the amendments made to the OECD Commentary. In this respect, the relation and interaction between the requirement of income allocation and the beneficial ownership limitation are discussed, followed by a review of the practice of several jurisdictions. The findings of the Rapporteure publique and Court in the Planet case are then analysed and contrasted with Swiss case law and practice.

Inhaltsverzeichnis

I. Introduction
- 1. General Considerations
- 2. Evolution of the OECD Model and Commentaries
  - 2.1. The 1995 Amendment
  - 2.2. The 2014 Amendment
  - 2.3. Consequences of the Modifications to the OECD Commentary
  - 2.4. Subsequent OECD Commentary and UN Model and Commentary
- 3. International Tax Treaty Practice
  - 3.1. Italy
  - 3.2. Denmark
  - 3.3. United States
  - 3.4. United Kingdom
- 4. Intermediary Conclusion
II. The Planet Case
- 1. Facts of the Case
- 2. Findings of the Conseil d’État and Conclusions of the Rapporteure publique
III. Swiss Practice and Relevance of the Planet Case
- 1. Direct Application of the Double Taxation Convention with the State of Residence of the Real Beneficial Owner
- 2. Procedural Obstacles
- 3. Substantive Oppositions
- 4. Relevance of the Planet Case
  - 4.1. Ambulatory Interpretation
  - 4.2. Beneficial Ownership’s Use
  - 4.3. Identification of Beneficial Owners
  - 4.4. Coherence of Anti-Avoidance Practices
  - 4.5. Procedural Considerations
  - 4.6. Purpose of Beneficial Ownership
IV. Conclusion