Tax Treaty Case Law around the Globe 2017

S. 399Russia: Thin Capitalization, Recharacterization of Interest as Dividends and the Non-Discrimination Article

Danil V. Vinnitskiy

1. S. 400Introduction

The 2011-2017 period was marked in Russia by the dynamic development of its case law on cross-border taxation with the attention of the Russian courts being specifically focused on cases connected with the application of thin capitalization rules. To a certain extent, in Russia this case law has come to symbolize a new approach by the state in the guise of the tax authorities to the interpretation of tax treaties which, in many cases, has turned out to be quite unfavourable for taxpayers. It should also be mentioned that the development of this case law (following the arguments of many relevant court decisions) is claimed to have been completely in accordance with the general global trends on the interpretation of tax treaties, i.e. principally, in accordance with and on the basis of the application of the provisions established in the Commentaries on the OECD Model. However, as will be seen further on in this chapter, de facto, in many cases identifying the legal positions of Russian courts as emanating the approaches taken in the Commentarie...