Defining the Relationship between Domestic General Anti-Avoidance Rules and Double Tax Agreements

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.