STEP 1: applicability of Article 17 OECD
First, assess which DTC applies in the given case (ie Arts. 1+2)
In order for Article 17 to apply, the following conditions must be met:
1) There is income
2) There is a ‘cross-border situation’
3) There is a ‘resident of a contracting state’ (Art. 4)
4) There income is derived by ‘entertainers and sport-persons as such’
5) Article 17 applies1
Paragraph 1
STEP 2: personal scope of application (ie who falls under the scope of the provision?)
Art. 17(1) deals with the income of entertainers and sportspersons
(i) Entertainers
- NOT defined -> domestic law relevant (Art. 3(2)).
- Art. 17(1) includes examples (theatre, motion picture, radio or television artiste, or a
musician) -> NOT exhaustive
- §3 -> stage performer, film actor or actor (including for instance a former sportsperson) in a
television commercial. Also included are activities which involve a political, social, religious
or charitable nature, if an entertainment character is present.
o It does NOT apply to -> a visiting conference speaker (e.g. a former politician who
receives a fee for a speaking engagement), to a model performing as such (e.g. a
model presenting clothes during a fashion show or photo session) rather than as an
entertainer or to administrative or support staff (e.g. cameramen for a film,
producers, film directors, choreographers, technical staff, road crew for a pop
group, etc.).
- Apportionment (§4) -> a person may be performing both activities falling under the scope
of Article 17 and others (such as employment activities (Art. 15)). In such cases, it is
necessary to determine the:
i. Predominant activities (the respective Article will then apply)
ii. If there are NO predominant activities, an apportionment is necessary2
(ii) Sportspersons
- NOT defined -> domestic law relevant (Art. 3(2)).
1
Remember: Article 17 prevails over both Arts. 7 (due to Art. 7(4) and Article 15).
2
Ie if the person performs 50% of the activities as an employee (es movie director) and 50% of the activities as an
entertainer (es the movie actor) -> the employment activities will be regulated (and taxed) according to Article 15 and
the entertainer activities will be regulated (and taxed) according to Article 17.
First, assess which DTC applies in the given case (ie Arts. 1+2)
In order for Article 17 to apply, the following conditions must be met:
1) There is income
2) There is a ‘cross-border situation’
3) There is a ‘resident of a contracting state’ (Art. 4)
4) There income is derived by ‘entertainers and sport-persons as such’
5) Article 17 applies1
Paragraph 1
STEP 2: personal scope of application (ie who falls under the scope of the provision?)
Art. 17(1) deals with the income of entertainers and sportspersons
(i) Entertainers
- NOT defined -> domestic law relevant (Art. 3(2)).
- Art. 17(1) includes examples (theatre, motion picture, radio or television artiste, or a
musician) -> NOT exhaustive
- §3 -> stage performer, film actor or actor (including for instance a former sportsperson) in a
television commercial. Also included are activities which involve a political, social, religious
or charitable nature, if an entertainment character is present.
o It does NOT apply to -> a visiting conference speaker (e.g. a former politician who
receives a fee for a speaking engagement), to a model performing as such (e.g. a
model presenting clothes during a fashion show or photo session) rather than as an
entertainer or to administrative or support staff (e.g. cameramen for a film,
producers, film directors, choreographers, technical staff, road crew for a pop
group, etc.).
- Apportionment (§4) -> a person may be performing both activities falling under the scope
of Article 17 and others (such as employment activities (Art. 15)). In such cases, it is
necessary to determine the:
i. Predominant activities (the respective Article will then apply)
ii. If there are NO predominant activities, an apportionment is necessary2
(ii) Sportspersons
- NOT defined -> domestic law relevant (Art. 3(2)).
1
Remember: Article 17 prevails over both Arts. 7 (due to Art. 7(4) and Article 15).
2
Ie if the person performs 50% of the activities as an employee (es movie director) and 50% of the activities as an
entertainer (es the movie actor) -> the employment activities will be regulated (and taxed) according to Article 15 and
the entertainer activities will be regulated (and taxed) according to Article 17.
