The Danish Supreme Court decision of 4 May 2023 ending the "beneficial ownership"-saga on interest is a good example of how the culture shift against tax avoidance and the BEPS response is affecting court decisions on tax treaties even without formal, binding OECD instruments. In this case, a Danish Co was paying interest on a loan (which pas purely created by a an intra-group share transfer) to newco's in Lux and Sweden. Finally the Supreme Court decided the newco's were conduits and not the beneficial owners of the interest. To note,: (1) there would have been no WHT if paid directly to the Co's behind the conduits, and (2) the interest was accrued, not paid. Both (1) and (2) irrelevant, Court held.

When you compare the reasoning of the courts on beneficial ownership, even within one and the same country, you see remarkable differences in approach. Take the "Danish Saga" i posted about earlier today. In the "Interest case", the Court just focuses on the "conduit co's" and wonders if they are just part of a "pre-organized" "abusive" tax arrangement. In the dividend NetApp case, the Court, for the second div distribution, also focuses on the individual transfer and control of funds. In NetApp, the Court held that for the second div, the payee was indeed the beneficial owner, not a conduit.