The Principal Purpose Test in the Multilateral Convention: An in-depth Analysis

Abstract

It is estimated that the Principal Purpose Test (PPT) contained in the Multilateral Instrument (MLI) will be incorporated in almost one thousand one hundred tax treaties. There is no doubt that this test will have wide ramifications for structuring activities that are carried out with tax treaties. In this contribution the author undertakes a detailed analysis of the test. Firstly, the author discusses the background to the PPT. Secondly, the author analyses various elements of the test and provides guidance on interpreting its subjective and objective elements. Thirdly, the author critically comments and expresses his opinion on all the nineteen examples that have been provided in the commentary in relation to the test. In this regard, it is pertinent to note that several of these examples seem to be inspired from Court judgments on the ‘beneficial ownership’ clause and the Exchange of Letters with respect to the anti-conduit rule contained in the US-UK tax treaty. Fourthly, the author analyses the legal consequences of denying treaty benefits in relation to rule and treaty shopping schemes by focussing on the discretionary relief clause. Finally, the author concludes and provides certain recommendations to intermediary entities such as holding, financing and intellectual property (IP) entities. It is pertinent to note that the author will analyse the relationship between the PPT (as well as the guiding principle) and other anti-avoidance rules, treaty and domestic, in a subsequent contribution.

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