Alinea 188 Parket bij de Hoge Raad 1 december 2006

"The objectives and purpose of subparagraphs 2b) and c) of paragraph 2 (van art. 15; PJW) are to avoid the source taxation of short-term employment to the extent that the employment income is not allowed as a deductible expense in the State of source because the employer is not taxable in that State as he neither is a resident nor has a permanent establishment therein. These subparagraphs can also be justified by the fact that imposing source deduction requirements with respect to short-term employment in a given State may be considered to be constitute an excessive administrative burden whether the employer neither resides nor has a permanent establishment in that State. In order to achieve a meaningful interpretation of subparagraph 2b) that would accord with its context and its object, it should therefore be considered that, in the case fiscally transparent partnerships, that subparagraph applies at the level of the partners. Thus, the concepts of 'employer' and 'resident', as found in subparagraph 2b), are applied at the level of the partners rather than at the level of a fiscally transparent partnership. This approach is consistent with that under which other provisions of tax Conventions must be applied at the partners' rather than at the partnership's level. While this interpretation could create difficulties where the partners reside in different States, such difficulties could be addressed through the mutual agreement procedure by determining, for example, the State in which the partners who own the majority of the interests in the partnership reside (i.e. the State in which the greatest part of the deduction will be claimed)."

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