A research report submitted to the Faculty of Commerce, Law and Management, University of the
Witwatersrand, Johannesburg, in partial fulfilment of the requirements for the degree of Master of
Commerce (Taxation).
Johannesburg, 2015 / Tax treaties have a developed language of their own within the field of international law. They may
include terms that are unknown in particular jurisdictions of domestic law or therein defined differently.
Because the language of tax treaties and domestic law differ from each other, the definitions of
certain terms and income type under a tax treaty and under different states’ domestic law are not
necessary identical. Despite these differences, tax treaty definitions must be used for tax treaty
classification purposes, and domestic law definitions must be used for domestic law classification
purposes. The tax definition determines the type of the income for tax treaty purposes even though
the income would qualify under another income category under the treaty states’ domestic law.
Similarly, the domestic tax law definition determines the type of income for domestic law purposes
(Helminen 2010). In most instances the treaty definitions of the various types of income refer back to
domestic tax law, and where the domestic tax law definition deviates between the two treaty
countries, this may lead to the application by these countries of different articles of the treaty. If this is
caused by the application of the domestic law, this is referred to as a conflict of qualification in the
Commentaries to the OECD Model Tax Convention. In general a conflict of qualification refers to a
situation where identical facts are treated differently for tax purposes in different countries. Such a
conflict may either concern the subject or the object of taxation.
Key words: Tax treaties, OECD MTC, Double Tax Agreements, double taxation, conflicts of
qualification, hybrid entities, partnerships, fiscally transparent, domestic law, Mutual Agreement
Procedures, permanent establishment.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:wits/oai:wiredspace.wits.ac.za:10539/19419 |
| Date | 29 January 2016 |
| Creators | Mabasa, Sbusiso Huzlett |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
| Format | application/pdf, application/pdf, application/pdf |
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