The Resource Agents vs. commissionnaires : a comparison in light of the OECD Model Convention

Agents vs. commissionnaires : a comparison in light of the OECD Model Convention

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Agents vs. commissionnaires : a comparison in light of the OECD Model Convention
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Agents vs. commissionnaires : a comparison in light of the OECD Model Convention
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eng
Summary
This article discusses the differences between the common law concept of agency and the civil law concept of commissionnaire in light of the interpretation and application of articles 5(5) and (6) of the OECD model income tax treaty and its commentaries. Section I of this article provides a general explanation of the agency concept in common law, analyzing the authority of the agent, the different types of agencies, the responsibilities of the principal and agents with third parties, and the distinction between disclosed and undisclosed agencies. Section II analyzes the concept of agency under the U.S. income tax law, specifically, Part I of the U.S. Internal Revenue Code, subchapter N, sections 861-865, in connection with reg. section 1.864-7(d). Section II includes a brief description of the concept of dependent, independent, and exclusive agent under the code as well as explaining the authority of the agent to conclude a contract and to bind the principal. This section explains how the construction and interpretation of these concepts under common law legislation do not differ from the actual commentaries on articles 5(5) and (6) of the OECD model treaty. Section III looks at the commissionnaire concept under civil law and the interaction with article 5(5) and (6) of the OECD model treaty. Also, the author tries to answer the question whether the civil law concept of commissionnaire can be compared with the common law concept of undisclosed agency. Finally, Section IV summarizes the court opinions in two civil law countries regarding recent cases that involved the application of paragraph 32.1 of the OECD commentary on article 5 (the Zimmer and Dell cases) in order to demonstrate how troubling the application of articles 5(5) and (6) in civil law countries can be when the commissionnaire concept is not strictly equivalent to the common law concept of agency giving rise to confusing and differing legal interpretations in similar cases in the effort to literally apply the commentaries on article 5
Citation source
In: Tax notes international. - Falls Church. - Vol. 72 (2013),
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English
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Agents vs. commissionnaires : a comparison in light of the OECD Model Convention
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Agents vs. commissionnaires : a comparison in light of the OECD Model Convention
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