Svensk skatteavtalstolkning - Är ett ambulatoriskt förhållningssätt till OECD:s kommentarer möjligt?

Sammanfattning: The commentaries to the OECD Model Convention are a significant tool in several countries’ courts when interpreting tax treaty provisions. The commentaries are continuously revised by the CFA and the question that therefore arises is which version of the commentaries can be consulted by courts. Either a static or an ambulatory approach can be used. The static approach means the commentaries existing at the time of the conclusion of the treaty apply. In contrast, an ambulatory approach means that the commentaries existing at the time of the interpretation of the treaty is to be applied. The static approach is, unlike an ambulatory approach, consistent with the principle pacta sunt servanda and it is not a controversial question whether this interpretation can be used or not. The overall purpose of this thesis is to analyze which approach the Swedish Supreme Administrative Court (SAC) has favored during the last 20 years. Other relevant issues are if and how an ambulatory approach can be legally justified, which advantages and disadvantages there are connected with a static or ambulatory approach and which approach the SAC, in my opinion, should have in the future based on state and private interests. To gain a uniform understanding of the terms used in tax treaties it is of great importance that the interpretation is in accordance with the principles of international law. The Vienna Convention is technically applicable to tax treaties and the important task is to establish the common intention of the parties. It is uncertain whether the commentaries can be considered to be means of interpretation in accordance with the Vienna Convention. The SAC has not ruled on the question, but has supported the view that the commentaries can be taken into account if the treaty articles are based on the OECD Model Convention, alternatively when treaty provisions are in conformity with the OECD Model Convention. The statements seem to apply to both commentaries that existed at the time the treaty was concluded and subsequent versions of the commentaries. The practice of the SAC has gone from using both a static and an ambulatory approach to exclusively using an ambulatory approach. An argument in favor of the SAC applying an ambulatory approach is increased tax revenue for the state, because the SAC can be mindful to technological developments. If subsequent commentaries are not used it also can result in a different interpretation of identical wording in treaties entered into at different times. The disadvantage of an ambulatory approach is that the parties to a tax treaty could not, at the time the treaty was concluded, foresee and approve every later development of the commentaries, which could lead to constitutional problems. Furthermore there is a risk that individuals cannot obtain certainty about their future tax obligations. In my opinion the SAC should use a static approach as a starting point since it is difficult to reconcile the common intention of the parties and the use of subsequent commentaries. If the result of the interpretation remains unclear or is unreasonable, an ambulatory approach may be used if that is within the common intention of the parties. An assessment of whether an ambulatory approach is possible should be made on a case-by-case basis.