Tax Treaty Case Law around the Globe 2016

S. 353Part Six Relief for Double Taxation and LOB

S. 355Chapter 29 Denmark: Classification of Foreign Income; Double Non-Taxation? Article 26(2) of the Nordic Tax Treaty

Søren Friis Hansen

29.1. Introduction

The most important Danish tax treaty case, which was reported in 2015, was the case decided by the Højesteret (Supreme Court) on 9 December 2014. The case, reported as SKM2015.24.HR, deals with the classification of income and the need to avoid double non-taxation.

29.2. Facts of the case

The case began with a decision of the National Tax Tribunal (Landsskatteretten) of 14 December 2011 (unreported). The facts of the case are relatively simple and were undisputed.

A medical doctor was a resident taxpayer of Denmark. In the fiscal years 2007-2009, the taxpayer had worked as a doctor in a temporary position at a Norwegian hospital. He received an income of DKK 1,470,545 (approximately EUR 197,634) from the Norwegian hospital.

Norway, being the source state, classified the taxpayer’s income as income from an independent personal service, subject to article 14 of the Nordic Tax Treaty of 1996.

Denmark (the residence state), on the other hand, classified the taxpayer’s income as income from government s...