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Tax treaties: How to read them


The OECD commentaries are pivotal to understanding the web of double tax agreements. In particular, the Vienna Convention on the Law of Treaties, to which Australia is a party, is critical to understanding how treaties are interpreted. The place to start is Australian domestic law. For example, evidence of a later agreement about a treaty’s meaning may work in some countries without a written constitution, but runs up against Australia’s strict separation of government powers. The purpose of this article is to unpack the following questions: whether there is a particular approach to the language; whether there is an “international fiscal language”; whether it is legitimate to drive towards common approaches in the application of the DTA, at least between contracting states; whether in doing so, it is legitimate to look at practices and case law of other states; and whether this flows from the primary objective, of a DTA, to protect against double taxation.

Author profile

David Marks QC CTA
David is a commercial Silk at the Queensland Bar practising principally in tax. He has a broader practice in commercial litigation, trusts and estates, and administrative law. He contributes to the life of the profession through his committee work for The Tax Institute and other professional bodies. He is a Chartered Tax Adviser and a registered Trust and Estates Practitioner. He received The Tax Institute’s Meritorious Service Award in 2013. David serves on the disciplinary panel of an international practitioner association. - Current at 12 February 2021
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