The Substantive Scope of Tax Treaties in a Post-BEPS World: Article 2 OECD MC (Taxes Covered) and the Rise of New Taxes

Several countries have recently either introduced or announced plans for new taxes addressing base erosion and profit shifting by multinational enterprises. These taxes include the Indian Equalization Levy, the UK Diverted Profits Tax, the announced Australian Diverted Profits Tax, the Netherlands Excessive Severance Tax as well as the Belgian Fairness Tax. Moreover, US Republicans plan to substitute the corporation tax with a (destination based) cash flow tax. It remains uncertain whether these hybrid taxes are covered by tax treaties. The uncertainty relates both to the definition of an income tax according to Article 2(2) OECD MC and to the term ‘identical or substantially similar taxes’ pursuant to Article 2(4) OECD MC. Against this background of legal uncertainty, the authors favour a procedural solution introducing an obligation for the contracting states to reach a mutual agreement as to whether or not new taxes are covered by the tax treaty.