The Commentaries to the OECD MTC and UN MC. A Critical Analysis of the Spanish Approach
| Autor | Esperanza Buitrago |
| Páginas | 317-332 |
317
ThE COmmENTARIEs TO ThE Oe c d
mTC AND UN mC
A CRITICAL ANALYsIs Of ThE
sPANIsh APPROACh
ES P E R A N Z A BU I T R AG O DÍ A Z
1. O E C D Commentaries in Spanish
Administrative and Judicial
Practice
The overview of decisions adopted by
the tax administration and courts in inter-
national tax matters clearly shows that both
authorities tend to put a lot of weight on the
hermeneutical value of the Commentaries.
However, the legal basis for this reliance
on the Commentaries in the interpretation
of D T C s remains unclear. The reliance on
the Commentaries can be demonstrated by
several rulings and guidance from the tax
administration. In 1996, the Central Econo-
mic and Administrative Tribunal (Tribunal
Administrativo Central, hereinafter T E A C )
-an administrative tribunal- held that the
O E C D Code of Liberalisation of Current
Invisible Operations (“CL C I O ”) is a norm of
“supranational character”2. In another case
in 1993 the TE A C decided that the OE C D M T C
Commentaries have the value of Compara-
The tax treaty network of Spain relies
extensively on the models for Double
Taxation Conventions (D T C s) drafted by
both the O E C D and U N 1. Although Spain
has negotiated numerous treaties in the
last ten years, many of them follow earlier
versions of the OE C D Model Tax Convention
(M T C ), such as the 1963 or 1977 OE C D M T C .
Moreover, the tax administration, courts
and legal scholars frequently use the OE C D
Commentaries to support their decisions or
opinions. Nonetheless, the legal status of
the Commentaries in the interpretation of
D T C s is far from clear in Spanish practice.
Taking a closer look at the different Spanish
decisions, one has to acknowledge certain
confusion about the role and status of the
Commentaries. This confusion prompted
the necessity to further analyse the extent
to which the Commentaries are legally
binding. This article examines different
approaches to this subject and provides su-
ggestions for possible solutions to address
the confusion.
1. Spain is a member state of both the OE C D and the U N .
2. In order to define technical assistance, see the TE AC ´s ruling from 9-10-1996 (JT 1998\1966),
FN 4. The same Code is taken as an example, without attributing interpretative value, in the
TE A C ´s ruling from 1-07- 1992 (JT 1992\414), motive 4; Also, TE AC ruling from 10-06-1992 (JT
1992\180), motive 4. In addition, TEAC ruling 23-07-1997 (JT 1997\1188), FN 3.
318 tive law for the purpose of interpreting the
definition of royalties provided by a D T C 3.
The official guidance of the General Sub-
Direction for the Taxation of Non-Residents
(S G T N R )4 also refers to the O E C D M T C .
Commentaries and observations presented
by Spain5
The same trend is clear in some decisions
of the Spanish courts. In a case regarding the
German-Spanish DT C , the Spanish Supreme
Court (hereinafter SC) stated in 2000 that, in
the absence of reservations from any of the
contracting States, the OEC D Commentaries
are the authentic source of interpretation
agreed upon by the OE C D 6. Some years
earlier, the SC had also found the Com-
mentaries to be an authentic interpretative
source for the purpose of defining the term
“royalty” in the Spanish-French D T C 7. The
influence of the OE C D Commentaries can
also be found in another case before the SC
regarding royalties approximately issued at
the same time8. Here the hermeneutic value
of the Commentaries was implicitly accep-
ted when the SC found it relevant to point
out that the German-Spanish DT C is based
on the OE C D M T C 9.
Another reference to the methodical fra-
mework of the Commentaries was made in
a judgment in 2003. In this case, the SC held
that the Commentaries are an authentic and
necessary tool of interpretation based on the
(V C L T ). This decision also demonstrates the
uncertainty about the status of the Com-
mentaries, however, since it did not clarify
whether the decision was based on article 31
or article 32 of the V C L T . Notwithstanding
the above consistent support for the high
status of the Commentaries, the SC em-
phasized that the Commentaries cannot be
considered as ground for an appeal based on
the infringement of the law itself10. Hence,
the importance attributed by the Court to
the Commentaries seems to be lower than
the importance they attribute to the Spanish
Law itself.
1.1 D T C s and amendments to the O E C D
M T C and Commentaries.
At least fifteen of the Spanish D T C s were
signed and ratified between 1963 and 1977.
From 1977 to 1991, Spain entered into at
least fifteen more. A number of other Spa-
nish DT C s entered into force after 1992.
3. TEAC´s ruling from 29-09-1993 (JT 1993\1398), motive 8. Also T E A C ´s ruling from 30-
04-1996 (JT 1996\566), motive 8.
4. Part of the General Direction of Taxation of the Spanish Ministry of Economy and Finan-
ce.
5. E.g. SG T N R , Consultation 0725-02 from 16-05-2002, http://petete.minhac.es; S G T N R , Con-
sultation 0762-03 from 6-06-2003, http://petete.minhac.es.
6. S C , Sentence from 3-06-2000 (RJ 2000\4874), FN 3; SC, Sentence from 8-04-2000 (RJ
2000\3773), dissenting vote, see at.
7. SC , Sentence from 11-06-1997 (RJ 1997\4818), F N 1.
8. SC , Sentence from 13-11-1998 (RJ 1998\7953).
9. Ibid, FN 3.
10. S C , Sentence from 12-02-2003 (RJ 2003\2492), F N 3. In the original version:”elemento
interpretativo auténtico y necesario según los Convenios de Viena sobre Interpretación de los
Tratados”.
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