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The fight against base erosion and profit shifting has been pointed out by the OECD as a problem that requires a coordinated response among the various jurisdictions around the world. As a proposed solution, the OECD has promoted the Multilateral Convention, as the instrument that collects the BEPS Action Plan reports. However, its incorporation requires profound reflections on the relationship between this instrument and our treaties and its impact on domestic legislation, due to the complexity that comes with the addition of a third law layer. The concept of permanent establishment of the Multilateral Instrument is one of the issues that requires such analysis. Providing interpretative content to this concept can be determinant to establishing the power to impose of various jurisdictions that are part of the Multilateral Instrument, which will translate into the success or failure of OECD efforts., La lucha contra la erosión de las bases imponibles y el traslado de beneficios ha sido señalada por la OCDE como una problemática que requiere una respuesta coordinada entre las diversas jurisdicciones alrededor del mundo. Como propuesta de solución, la OCDE ha impulsado el Convenio Multilateral, como aquel instrumento que recoge los reportes del Plan de Acción BEPS. Sin embargo, su incorporación requiere profundas reflexiones sobre la relación entre este instrumento, nuestros tratados y su impacto en la legislación interna, debido a la complejidad que acarrea el añadir una tercera capa normativa. Un asunto que requiere de dicho análisis es el concepto de establecimiento permanente del Convenio Multilateral. Dotar de contenido interpretativo a dicho concepto puede ser determinante para establecer la facultad de imposición de las diversas jurisdicciones que forman parte del Convenio Multilateral, lo cual se traduce en el éxito o fracaso de los esfuerzos de la OCDE.

Multinational tax avoidance is a major economic issue that has generated significant political traction in recent years. Multinational corporations have been eroding the tax bases of states by shifting profits around the globe. The OECD has recently finalised a co-ordinated response to this so called “base erosion profit shifting”. The OECD has created “action plans” that states can adopt by renegotiating existing tax treaties. New Zealand has chosen to venture beyond the OECD’s action plans and create domestic legislation to target multinational tax avoidance. This paper examines whether New Zealand’s proposed legislation will be consistent with its tax treaties. It is argued there will be some inconsistencies, which may engage New Zealand’s state responsibility in international law and cause double taxation. I also analyse the legal and policy implications of New Zealand’s proposals, and draw on comparative perspectives. I ultimately conclude that New Zealand’s proposals may reduce commercial certainty and foreign investment. However, I suggest both New Zealand’s proposals and the OECD’s initiatives are a novel step towards harmonising the international tax regime. The effects of which will likely be felt for years to come.

Multinational tax avoidance is a major economic issue that has generated significant political traction in recent years. Multinational corporations have been eroding the tax bases of states by shifting profits around the globe. The OECD has recently finalised a co-ordinated response to this so called “base erosion profit shifting”. The OECD has created “action plans” that states can adopt by renegotiating existing tax treaties. New Zealand has chosen to venture beyond the OECD’s action plans and create domestic legislation to target multinational tax avoidance. This paper examines whether New Zealand’s proposed legislation will be consistent with its tax treaties. It is argued there will be some inconsistencies, which may engage New Zealand’s state responsibility in international law and cause double taxation. I also analyse the legal and policy implications of New Zealand’s proposals, and draw on comparative perspectives. I ultimately conclude that New Zealand’s proposals may reduce commercial certainty and foreign investment. However, I suggest both New Zealand’s proposals and the OECD’s initiatives are a novel step towards harmonising the international tax regime. The effects of which will likely be felt for years to come.

Double taxation agreements pose a particular analytical problem. While they provide a coherent structure that encourages cross-border investment, the agreements also provide opportunities for taxpayers to avoid their domestic tax obligations. To prevent tax avoidance, some countries enact domestic general anti-avoidance rules to protect their domestic interests. These rules raise questions as to what the relationship between the domestic law and the double tax agreement is. The Organisation for Economic Cooperation and Development’s Committee on Fiscal Affairs provides Commentary on the Organisation for Cooperation and Economic Development Model Double Tax Agreement. This Commentary sets out an analytical framework from which this relationship is to be evaluated. This paper argues that the framework is of little practical significance. The paper concludes that the weight and usefulness of the Commentary lies in a guiding principle set out in the Commentary. Consequently, the wider interpretative approaches do not practically add to the analysis and should be given little weight.

Double taxation agreements pose a particular analytical problem. While they provide a coherent structure that encourages cross-border investment, the agreements also provide opportunities for taxpayers to avoid their domestic tax obligations. To prevent tax avoidance, some countries enact domestic general anti-avoidance rules to protect their domestic interests. These rules raise questions as to what the relationship between the domestic law and the double tax agreement is. The Organisation for Economic Cooperation and Development’s Committee on Fiscal Affairs provides Commentary on the Organisation for Cooperation and Economic Development Model Double Tax Agreement. This Commentary sets out an analytical framework from which this relationship is to be evaluated. This paper argues that the framework is of little practical significance. The paper concludes that the weight and usefulness of the Commentary lies in a guiding principle set out in the Commentary. Consequently, the wider interpretative approaches do not practically add to the analysis and should be given little weight.