Since access to a treaty is dependent on the taxpayer being resident in one of the Contracting States, the classification of a taxpayer as resident becomes of utmost importance. Article 5 of the OECD Model Convention, defines the term ‘resident’, and also provides a series of tests which should apply when a taxpayer is a dual resident.
None of the tests put forward in the tie-breaker rules for individuals are defined by the treaty, and the Organisation for Economic Cooperation and Development (OECD) commentaries fail to provide much guidance. For many years, an article by John Avery Jones et al., entitled ‘Dual Residence of Individuals: The Meaning of the Expressions in the OECD Model Convention’ (1981), has been adopted by practitioners in understanding the concepts portrayed in such tie-breaker rules.
This article will explore whether the principles put forward in the above-mentioned article are still relevant in todays developed world, and if not, what interpretation should be given to these concepts.Intertax