Recent application of the dynamic interpretation for royalties by the Spanish Tax Administration

Abstract

The controversy concerning the static or dynamic interpretation has its origins in the 1963 Organization for Economic Cooperation and Development Model Convention (OECD MC). The author analyses the problems derived from the hermeneutic clause of Article 3.2 OECD MC, as a consequence of the referral to the internal law made by this provision in the absence of a treaty definition. Besides, the non-binding character and practical importance of the Commentaries on the articles of the OECD MC, together with the legal basis for their application should be equally taken into account with regard to the (static or dynamic) interpretation of the Commentaries. Once these problematic questions have been clarified, the author refers to the recent tendency of the Spanish tax authorities in favour of the dynamic interpretation as far as the definition of the term ‘royalties’ is concerned.