Income from international private employment; an analysis of Article 15 of the OECD Model

This study considers the treatment of income from private employment under tax treaties containing provisions analogous or similar to Article 15 of the OECD Model. It offers an in-depth analysis of these provisions as well as suggestions for improvements in the application and interpretation.

Although Article 15 of the OECD Model is the basis for probably one of the most frequently applied tax treaty provisions, there is nevertheless a considerable lack of clarity. This is caused, inter alia, by the recourse often had to the domestic laws of the contracting states applying the tax treaty in order to explain certain terms in Article 15, such as "an employer".

This study approaches the analysis of Article 15 of the OECD Model from the perspective of five key countries: Belgium, Germany, the Netherlands, the United Kingdom and the United States. By analyzing case law, legal literature and official policy statements of these countries' respective tax authorities, the study also describes potential difficulties. An overview is provided of the various interpretations and explanations employed in these countries, which is also used by the author in developing a preferred interpretation of a term at issue. Where appropriate, suggestions are made for amending the wording of Article 15 of the OECD Model or the corresponding Commentary. Furthermore, insight is offered into the different forms of compensation covered by Article 15 of the OECD Model and how these should be allocated in the case of cross-border services, e.g. employee stock options, severance payments, etc.