No Article 17 for Entertainers and Sportspersons in Proposed New Tax Treaty (Belgium – The Netherlands)

Exploring the impact of removing Article 17 from proposed new tax treaty

Content:

1. Introduction
2. Article 17 OECD Model (+ UN and US Model)
3. Elimination of double taxation (Article 23) 
4. Problems with Article 17 for entertainers and sportspersons
5. Available solutions in tax treaties
6. Belgium and the Netherlands: No Article 17 anymore
7. Revenue consequences
8. Final words
9. Citations

Summary

There is no Article 17 for entertainers and sportspersons in the 2023 new tax treaty between Belgium and the Netherlands. They decided not to follow the OECD recommendation, because the article creates too much administrative expenses. Use of the normal allocation articles for companies, self-employed and employees are well equipped for these two special types of taxpayers when they perform in the other state. The authors compare this to the OECD, UN and US Model Tax Conventions.

They conclude that the risk of double or excessive taxation is much lower without an Article 17 in a bilateral tax treaty between states with a normal tax system.

1. Introduction 

Belgium and the Netherlands have signed a new tax treaty on 21 June 2023. The content is interesting, but mainly because what has been left out: there is no special clause for entertainers and sportspersons in the new treaty, no Article 17, different from what the OECD Model Tax Convention recommends. That is not a mistake, but has been done on purpose. Belgium and the Netherlands want to bring down the administrative burden following from an Article 17 provision and apply the normal rules of Article 7 (self-employed) and Article 15 (employees). At the same time they take away the risk of double or excessive taxation.

The existing tax treaty between Belgium and the Netherlands is from the year 2001. Not that old, but still both states have been discussing a new tax treaty for 10 years, because they are working together closely and the cross-border workers and pensioners and businesses in both states feel that there is hardly any border, also because of the language. The new treaty should be as modern as possible, not only following the OECD Model but also the latest (inter)national developments. 

The reasons for the historic step of leaving out Article 17 can be found in the problems following from Article 17 OECD Model.

2. Article 17 OECD Model (+ UN and US Model)

In most tax treaties, Article 17 for entertainers and sportspersons is taken over from the OECD Model without discussion. The financial relevance is small and other income items have much more meaning, such as pensions, royalties, employees and business income. In treaty negotiations, Article 17 is an easy fix, most often the exemption for subsidized performances is added in Article 17(3)2, but then states go further with discussing the other treaty articles.

Article 17 has two main paragraphs, the first for payments to entertainers and sportspersons themselves for their work in the other state and the second for…

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Author

Dick Molenaar

Tax Adviser, All Arts Tax Advisers & Researcher, the Erasmus University, Rotterdam, the Netherlands  

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