What Should Be the Scope of the Beneficial Owner Concept?

• Autores: Mónica Sada Garibay, Jeroen J.M. Janssen
• Localización: Intertax, ISSN 0165-2826, Vol. 48, Nº. 12, 2020, págs. 1087-1104
• Idioma: inglés
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• Resumen

  • In this article, the authors present their considerations regarding the differences between the OECD beneficial owner concept and the interpretation and use that the European Court of Justice has given to it in the so-called Danish Cases, including the recent European tendency to use it as an anti-abuse instrument. The authors analyse the implications of both approaches for recipients that are, for example, parties to (secured) financial transactions, limited recourse loans, or prescheduled repayment schemes in private equity structures. The authors conclude that a recipient can both be and not be the beneficial owner of an item of income depending on whether the OECD beneficial owner concept or the interpretation and use of the European Court of Justice are followed. In the view of the authors, the more ‘economic’ approach of the European Court of Justice in respect of the beneficial owner concept leads to legal uncertainty in bona fide transactions.