Treaty shopping. The relationship between domestic anti-avoidance rules and tax treaties

The subject of the thesis is the relationship between domestic anti-avoidance rules and tax treaties. There has been a long lasting, and ongoing, discussion about abuse of treaties. Most jurisdictions have implemented both special anti-avoidance rules and more general anti-avoidance rules under its domestic legislation. These domestic anti-avoidance rules may conflict with a taxpayer's entitlement under a tax treaty. Firstly it is necessary to determine whether a jurisdiction is restricted from applying its domestic anti-avoidance rules in a cross-border situation where there is a tax treaty in force. Secondly, the issue is whether the inclusion of specific anti-avoidance rules in a tax treaty prevents the possibility of implying other anti-avoidance ru les in the application of the treaty. If domestic anti-avoidance rules are given priority over tax treaties, double taxation may arise due to the fact that both states involved will tax the transaction. The thesis has both an angle against domestic leg islation and an angle against tax treaties. For the tax treaty issue, it is reasonable to start by analyzing the OECD Model Tax Convention and the OECD Commentaries. In relation to domestic legislation the thesis will analyze how the issue is dealt with i n Norway, Canada, Germany and the Netherlands. For the analysis of domestic legislation, domestic case law will be the most important source of law. As a visiting researcher at Max Planck Institute in Munich I will have access to databases on German cas e law. Furthermore, the Max Planck Institute has a great library, which will provide me with access to both national and international sources of law. German scholars are very highly regarded in tax matters and have published a great number of articles bo th regarding national and international tax issues. As a visiting researcher I will also be part of the PhD society at the Max Planck Institute which I have been told is very good.