A Eficácia do Conceito de “Beneficiário Efetivo” como Instrumento de Prevenção da Evasão Fiscal nas Convenções Internacionais para evitar a Bitributação

Abstract

This paper aims to deal with the evolution of the literature and jurisprudence on the “beneficial ownership” concept, adopted in the dividends, interests and royalties provisions of double taxation agreements, as a measure to avoid the foul use of those agreements for international tax avoidance. The origin of the expression “beneficial ownership”, its introduction in the Model Convention of the Organization for the Economic Cooperation and Development (OECD) and its widespread diffusion with different meanings in the domestic tax legislation of various countries, including Brazil, will be analyzed. The paper concludes that the “beneficial ownership” concept is useful in order to deal with some situations for the enforcement of the agreements, but not as a general measure to inhibiting tax avoidance practices. It is necessary, though, that the OECD clarify the relation between the beneficial ownership concept and the economic and substance-over-form interpretative approaches.