Richard Xenophon Resch Bücher

This study clarifies the meaning and application of Article 3(2) of the OECD Model Tax Convention on Income and on Capital. It maps the entire historical debate on the provision, illuminates flawed assumptions and misunderstandings in its course, and outlines how these continue to fuel the current controversies. In addition, it provides a comprehensive analysis of German case law concerning the interpretation of tax treaties and examines the extent to which the German Federal Fiscal Court has been influenced by views developed in doctrine. Finally, it clarifies the relationship between Article 3(2) and the rules on treaty interpretation codified in the Vienna Convention on the Law of Treaties, the meaning of 'context', and how the condition 'unless the context otherwise requires' is to be applied. Thereby, an approach is submitted that is firmly based on public international law principles and transcends the current controversies into a holistic synthesis.

This analysis examines 3,844 tax treaties, the Vienna Convention on the Law of Treaties (VCLT), and relevant case law, challenging the prevailing belief that courts can rely solely on one language text for interpreting plurilingual treaties. This stance is deemed erroneous and contributes to misapplication, as taxpayers should not focus exclusively on their own language version. With nearly three-quarters of over 3,000 tax treaties being plurilingual, the issue is critical, especially as the BEPS MLI complicates matters by altering numerous treaties in various languages. The study aims to reduce treaty misapplication by advocating for a departure from current practices, demonstrating that relying on prevailing texts can be a pragmatic alternative aligned with the VCLT, and offering policy recommendations to address residual cases. It provides compelling arguments and data for policymakers, treaty negotiators, judges, practitioners, and scholars. The analysis of tax treaty final clauses is designed to assist both taxpayers and courts in interpreting these treaties effectively. Furthermore, the insights extend beyond tax treaties, addressing similar interpretative challenges in other areas, such as foreign investment regulation.