Tax Treaties and Jurisdiction to Tax

Testing Schoueri's Thesis against Foreign Jurisdictions and Lessons for Brazilian Law

Abstract

This article addresses Luís Eduardo Schoueri’s thesis on double taxation treaties (DTTs), according to which such treaties delimit the State’s taxing jurisdiction, rather than operating as special norms in antinomy with domestic law. The thesis is submitted to a comparative analysis, drawing on the experience of the Netherlands, Germany, the United States, Spain and Portugal. The article then gathers, from Brazilian legal scholarship and case law, the relevant elements to test the reasons why the thesis would allegedly find no room for application in Brazil. It concludes that these objections can be rebutted and, on the basis of the comparative inquiry, offers six elements intended to contribute to the Brazilian debate on the relationship between DTTs and taxing jurisdiction.