Double tax treaties and trust: an italian perspective in light of the new international scenario


Summary: 1. Introduction. - 2. Tax Treaty Entitlement of Trusts and Hybrid Entities in General: an Age-old Problem. - 2.1. The troubled relationship between trusts and civil law countries: an Italian perspective between liability to tax and fiscal transparency. - 3. From the Partnership Report to the BEPS Project: sacrificing the beliefs of the state of source in favour of fair global taxation. - 4. BEPS Project Action 2: an instrument of soft law directed to hybrid mismatch arrangements. - 5. Scope and effectiveness of the Transparent Entity clause in relation to trusts. - 5.1. Potentially unresolved hybrid mismatches: the transparent entity clause may be set for failure when trusts are disregarded for tax purposes under the domestic law of their state of residence, and the subjects to which the trust-level income is allocated are not also resident therein. - 5.2. The challenging misalignment of article 1(2) with other OECD attributive rules: is the verdict on beneficial ownership reserved for the source state? - 5.3. The delicate balance of interests: is the self-evident predominance of the view adopted by the state of residence really justified? - 6. The saving clause: article 1(3) stands up in defense of the source state (possibly determining unrelieved double taxation). - 7. Other topics of interest. - 7.1. Cross-border arrangements involving Italy: the rare references to trusts in existing double taxation agreements and the possible impact of the multilateral convention. - 8. Conclusion.