Capital Gains: The History of the Principle of Symmetry, the Internal Order of Article 13 and the Dynamic Interpretation of the Changes in the 2010 Commentary on “Forming Part” and “Effectively Connected”

This contribution discusses the symmetry in the attribution of taxing rights of income and capital gains/capital in a historic context. It describes the unsolved hierarchy problems that were introduced with the introduction of article 13(4) in 2003. Article 13(4) has also disturbed the previously balanced coordination of articles 7 and 13 in paragraph 4 of the Commentary on Article 13. The contribution criticizes the late (2010) introduction of the new Commentaries explaining “effectively connected with” and “forming part of the business property of” a PE.