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The 2003 Revision of the OECD Commentaries on the Improper Use of Tax Treaties: A Case for the Declining Effect of the OECD Commentaries?

This article examines the OECD’s new position regarding the improper use/abuse of double taxation treaties introduced in the January 2003 revision of the OECD Model Tax Convention and Commentaries. Although the most important changes were added in the Commentary on Art. 1 of the OECD Model, other articles or their Commentary have also been affected. This article first focuses on the new Commentary added to Art. 1 on the improper use of tax treaties and the Commentaries on the other articles closely related it. The article next studies the new commentaries and changes to the OECD Model which deal with topics relating to access to tax treaties and their improper use. The article then summarizes this author’s opinion on the new Commentaries on the improper use/abuse of tax treaties and also connects the first sections of the article to another part which considers whether the Commentaries added in 2003 affect prior treaties. This includes some general thoughts on whether the effect of the OECD Commentaries on treaty interpretation is overestimated and whether the Commentaries should be downgraded in their effect on treaties because they affect taxpayers’ rights. Some reflections on how to improve the declining effect of the OECD Commentaries close this work.