Estas son algunas de las conclusiones aprobadas en el Forum:
CONCLUSIONS ON ACTION 6 OF THE BEPS (PREVENT TREATY ABUSE)
ISSUES RELATED TO THE LOB (Limitation on Benefits) PROVISION
1. ALTERNATIVE “SIMPLIFIED” LOB RULE AND PRESENTATION OF THE LOB RULE IN THE OECD MODEL.
The LOB rule should be structured and presented in the OECD Model Tax Convention in combination with the PPT rule.
Action 6 should focus on the elaboration of guidance on underlying principles and the general elements that an LOB provision should contain.
2. NON-CIV (Collective Investment Vehicles) FUNDS: APPLICATION OF THE LOB AND TREATY ENTITLEMENT.
Non-CIVs may be used to provide treaty benefits to investors that are not themselves entitled to treaty benefits and that investors may defer recognition of income on which treaty benefits have been granted.
3. THE DISCRETIONARY RELIEF PROVISION OF THE LOB RULE.
Paragraph 16 of the Report on Action 6 should clarify, at least, that, in the case of a resident subsidiary company with a parent in a third State, whilst the fact that the relevant withholding rate provided in the Convention is not lower than the corresponding withholding rate in the tax treaty between the State of source and the third State would be a relevant factor, that fact would not, in itself, be sufficient to establish that the conditions for granting the discretionary relief are met.
4. ISSUES RELATED TO THE DERIVATIVE BENEFITS PROVISION.
Conclusions of Berkeley Working Party:
Proposal 1: New treaty provisions on “special tax regimes”:
New definition of “special tax regime” to be included in Article 3 (General Definitions)
Proposal 2: New general treaty rule intended to make a tax treaty responsive to certain future changes in a country’s domestic tax laws
5. PROVISIONS DEALING WITH “DUAL-LISTED COMPANY ARRANGEMENTS”.
The term “principal class of shares” means the ordinary or common shares of the company, provided that such class of shares represents the majority of the voting power and value of the company. If no single class of ordinary or common shares represents the majority of the aggregate voting power and value of the company, the “principal class of shares” are those classes that represent a majority of the aggregate voting power and value of the company. In the case of a company participating in a dual listed company arrangement, the principal class of shares will be determined after excluding the shares which were issued to give effect to that dual listed company arrangement.
6. CLARIFICATION OF THE “ACTIVE BUSINESS” PROVISION.
The Berkeley Working Party propose replace the paragraph 3 of the LOB rule in order to prevent a resident from aggregating activities of a connected person enjoying a special tax regime and in order to provide that the resident and any connected persons must be in the same or a similar line of business before their activities may be aggregated.
ISSUES RELATED TO THE PPT (Principal Purpose Test) RULE
1. ALIGNING THE LOB DISCRETIONARY RELIEF PROVISION THAT DEAL WITH THE PRINCIPAL PURPOSES TEST.
The Working Party thinks that the alignment of the Commentaries on the PPT rule and the discretionary relief provision of the LOB rule would be useful but should focus on the general explanations provided as to the meaning of the phrase “one of the principal purposes” rather than on the examples included in the Commentary on the PPT rule because, unlike the PPT rule, the discretionary relief provision depends on the exercise of discretion based on the appreciation of relevant facts by the competent authority and has a narrower focus than the PPT rule since it focusses exclusively on what the competent authority may determine as being one of the principal purposes for the establishment, acquisition or maintenance of a person and the conduct of its operations.
2. DRAFTING OF THE ALTERNATIVE “CONDUIT-PPT RULE”
Working Party concludes that wold be problematic the alternative definition of “conduit arrangements” suggested in paragraph 15 of the proposed Commentary OECD raised some technical difficulties and, in particular, the reference to “all or substantially all”. It was therefore decided that simply focus on general principles and include examples of transactions that an anti-conduit rule should address.
3. APPLICATION OF THE NEW TREATY TIE-BREAKER RULE
The conclusion of Berkeley Working Party is that the new tie-breaker provision should clarify that the fact that a dual-resident entity would not be entitled to treaty reliefs under the new provision will not prevent the person from being considered a resident of each Contracting State for the purposes of the provisions of the Convention (e.g. Art. 15(2)b)) that do not provide reliefs to that entity. It was also agreed that the competent authorities should be encouraged to address as quickly as possible requests that will be made under the new provision.
4. PROPOSED COMMENTARY ON THE INTERACTION BETWEEN TAX TREATIES AND DOMESTIC ANTI-ABUSE RULES
The changes to the Commentary proposed in paragraph 49 of the Report on Action 6 would need to be reviewed in the light of progress on the work on other Action items in order to decide whether any recommendations resulting from the work on Actions 2 (Neutralise the effects of hybrid mismatch arrangements), Action 3 (Strengthen CFC rules), Action 4 (Limit base erosion via interest deductions and other financial payments) and Actions 8, 9 and 10 dealing with Transfer Pricing raised treaty issues not already addressed in the OECD Model Tax Convention.
As regards the section on the “Improper use of the Convention” in the existing Commentary on Article 1, it was suggested that most, if not all, of the alternative provisions currently found in paragraphs 13 to 21.5 of the Commentary on Article 1 could be deleted as a result of the new provisions included in the Report on Action 6. It was also noted that paragraphs 7 to 12 and 20 to 22.2 of the Commentary on Article 1 would need to be amended in order to avoid any overlap with the changes to the Commentary proposed in paragraph 49 of the Report whilst clarifying that the conclusions already reflected in these paragraphs concerning the interaction between treaties and domestic anti-abuse rules remain valid.