The UK courts adopt a purposive approach when interpreting double tax treaties, but this can lead to difficulties, as shown by the recent case of Bayfine UK where each successive court reversed the preceding court’s decision. Prompted by perceived uncertainty concerning the interpretation of treaties, the OECD has released a discussion draft of proposed changes to the commentary on the meaning of ‘beneficial ownership’ for the purposes of the Dividends, Interest and Royalties Articles of the OECD Model Tax Convention. While the draft commentary might make the extreme circumstances easier to expose, beneficial ownership remains a grey area. Many cross-border financing structures will continue therefore to be subjected to the unnecessary vagaries of domestic and international tax regimes for the foreseeable future.
