Commentary Clause Samples

Commentary. A copy of the standard-form ARP policy is available on the website of the SRA at ▇▇▇.▇▇▇.▇▇▇.▇▇ and is also available from the SRA. Contact details appear at the end of the introductory commentary.

Commentary. A firm which has continued to practise without qualifying insurance immediately prior to closing down is required to apply for run-off cover through the ARP, but the firm and any principal of the firm may still face action for a breach of Rule

Commentary. If a firm is eligible to be issued with an ARP policy under Rule 13.1, or an ARP run-off policy under Rule 13.4 then, provided that it complies with the relevant requirements under Rule 13 and is issued with an ARP policy or an ARP run-off policy, the firm and the principals of that firm will be required to pay to the ARP manager only the relevant premium and the excess in the event of any claim.

Commentary. A list of all Qualifying Insurers appears on the website of the Solicitors Regulation Authority at ▇▇▇.▇▇▇.▇▇▇.▇▇, and is also available from the Solicitors Regulation Authority. Contact details appear at the end of the introductory commentary.

Commentary. As already noted, a number of countries have long used a process of legal interpretation to counteract abuses of their domestic tax laws and it seems entirely appropriate to similarly interpret tax treaty provisions to counteract tax treaty abuses. As noted in paragraph 9.3 of the Commentary on Article 1 of the OECD Model Convention: Other States prefer to view some abuses as being abuses of the conven- tion itself, as opposed to abuses of domestic law. These States, however, then consider that a proper construction of tax conventions allows them to disregard abusive transactions, such as those entered into with the view to obtaining unintended benefits under the provisions of these conventions. This interpretation results from the object and purpose of tax conventions as well as the obligation to interpret them in good faith (see Article 31 of the Vienna Convention on the Law of Treaties).

Commentary. A country that does not feel confident that its domestic law and approach to the interpretation of tax treaties would allow it to adequately address improper uses of its tax treaties could, of course, consider including a general anti-abuse rule in its treaties. The guiding principle referred to above could form the basis for such a rule, which could therefore be drafted along the following lines: Benefits provided for by this Convention shall not be available where it may reasonably be considered that a main purpose for entering into transactions or arrangements has been to obtain these benefits and obtaining the benefits in these circumstances would be contrary to the object and purpose of the relevant provisions of this Convention. When considering such a provision, some countries may prefer to replace the phrase “a main purpose” by “the main purpose” to make it clear that the pro- vision should only apply to transactions that are, without any doubt, primar- ily tax-motivated. Other countries, however, may consider that, based on their experience with similar general anti-abuse rules found in domestic law, words such as “the main purpose” would impose an unrealistically high threshold that would require tax administrations to establish that obtaining tax ben- efits is objectively more important than the combination of all other alleged purposes, which would risk rendering the provision ineffective. A State that wishes to include a general anti-abuse rule in its treaties will therefore need to adapt the wording to its own circumstances, particularly as regards the approach that its courts have adopted with respect to tax avoidance.

Commentary. First, specific anti-abuse rules are often drafted once a particular avoidance strategy has been identified. Second, the inclusion of a specific anti-abuse provision in a treaty can weaken the case as regards the applica- tion of general anti-abuse rules or doctrines to other forms of treaty abuses. Adding specific anti-abuse rules to a tax treaty could be wrongly interpreted as suggesting that an unacceptable avoidance strategy that is similar to, but slightly different from, one dealt with by a specific anti-abuse rule included in the treaty is allowed and cannot be challenged under general anti-abuse rules. Third, in order to specifically address complex avoidance strategies, complex rules may be required. This is especially the case where these rules seek to address the issue through the application of criteria that leave little room for interpretation rather than through more flexible criteria such as the purposes of a transaction or arrangement. For these reasons, whilst the inclusion of specific anti-abuse rules in tax treaties is the most appropriate approach to deal with certain situations, it cannot, by itself, provide a com- prehensive solution to treaty abuses.

Commentary. Example 3 raises the potential for tax avoidance arising from remit- tance-based taxation. This issue is dealt with in paragraph 26.1 of the Com- mentary on Article 1 of the OECD Model Convention, which suggests that, in order to deal with such situations, countries may include a specific anti-abuse provision in their tax treaties with countries that allow that form of taxation:

Commentary specific types of companies as defined in the commercial law or the tax law of a country, the most radical solution would be to exclude such companies from the scope of the treaty. An- other solution would be to insert a safeguarding clause such as the following: ‘No provision of the Convention conferring an exemp- tion from, or reduction of, tax shall apply to income re- ceived or paid by a company as defined under Section . . . of the . . . Act, or under any similar provision enacted by . . . after the signature of the Convention.’ The scope of this provision could be limited by referring only to specific types of income, such as, dividends, interest, capital gains or director’s fees. Under such provisions compa- ▇▇▇▇ of the type concerned would remain entitled to the protec- tion offered under Article 24 (Non-discrimination) and to the benefits of Article 25 (Mutual agreement procedure) and they would be subject to the provisions of Article 26 (Exchange of information).” [para. 15] “General subject-to-tax provisions provide that the treaty benefits to the State of source are granted only if the income in question is subject to tax in the State of residence. This corre- sponds to the aim of tax treaties, namely, to avoid double taxa- tion. For a number of reasons, however, the Model Convention does not recommend such a general provision. While this seems adequate with respect to normal interna- tional relationship, a subject-to-tax approach might well be adopted in a typical conduit situation. A safeguarding provi- sion of this kind could have the following wording: “Where income arising in a Contracting State is re- ceived by a company resident of the other Contracting State and one or more persons not resident in that other Contracting State (a) have directly or indirectly or through one or more companies, wherever resident, a substantial interest in such company, in the form of participation or otherwise, or ARTICLE 1 COMMENTARY (b) exercise directly or indirectly, alone or together, the management or control of such company, any provision of this Convention conferring an exemption from, or a reduction of, tax shall apply only to income that is subject to tax in the last-mentioned State under the ordi- nary rules of its tax law.” The concept of ‘substantial interest’ may be further speci- fied when drafting a bilateral convention. Contracting States may express it, for instance, as a percentage of the capital or of the voting rights of the company.” [...