Anders V. Heieren
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OECD decided in 2013, with the endorsement by G-20, to prepare actions to counter the profit shifting opportunities of multinational enterprises. The work resulted in an action plan with 15 separate actions, with concrete recommendations for amendments of the tax treaties and on states internal tax legislation.
Amendments of tax treaties are subject to bilateral and normally long lasting negotiations. Action 15 is a multilateral instrument allowing for a swifter implementation of several actions. The work with the multilateral instrument resulted in a multinational convention (the “Convention”). The Convention was signed by Norway and 75 other jurisdictions on 7 June 2017 and has up to date been signed by 87 jurisdictions. Norway completed its ratification procedure by the Parliament’s adoption of the Convention on 19 February 2019.
The Convention include actions to counter hybrid mismatch arrangements, to counter abuse of tax treaties, to prevent the artificial avoidance of permanent establishment and to improve the dispute resolutions mechanisms. The Convention allows (to some extent) each state to decide which articles and provisions of the Convention they want to apply to their treaties. In addition, the states must choose which of their tax treaties the Convention shall apply to (“Covered tax treaties”). Thus, in order for a specific treaty to be amended with the Convention, both states need to include the other state in its covered tax treaty and the other state cannot have made reservations or made elections of articles which are not compatible with the other states’ elections. There has been a process during 2017 initiated by the OECD with the aim to clarify where the states stand in relation to one another. It remains to see whether Norway’s elections under the Convention will in fact lead to (and to what extent) amendments of each of the treaties.
Norway has tax treaties with more than 90 states. Norway has decided that the Convention shall apply to 28 of its tax treaties. Tax treaties covered include among others Norway’s tax treaties with China, Australia, United Kingdom, the Netherlands, Poland, Ireland, Cyprus and Luxembourg. These treaties will be amended to the extent Norway’s 28 tax treaty partners also have included Norway in the list of covered tax treaties and have not made any reservations or elections of articles under the Convention of which are not compatible with Norway’s elections.
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