Since the application of the ‘183-day clause’ depends on proving that the employer is not resident of the State of employment, one could deny its application in any case, when the employer, ‘under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature”.It may occur, however, that according to the multiple criteria fixed by Article 4 (I), the employer would not only be resident of the State of employment, but also of the State of Residence of the taxpayer (employee). Paragraphs 2 and 3 of Article 4 MC solve the case of double residence, in order to grant that a person is always to be considered resident of only one state.
If one concludes that Paragraphs 2 and 3 of Article 4 MC are also to be applied in the case of double residence of the employer, then it will be possible to consider an employer as ‘not resident’ of the State of employment, although he may be liable to tax therein. In this case, the State of employment would not be allowed to tax the income of the employee, according to the ‘183-day clause’.
On the other hand, one could apply the ‘183-day clause’ from a ‘lex-fori’ point of view.
Such interpretation could be based in Article 3 (2) of the MC. This alternative might imply, that no double residence of the employer should be considered, since each State would apply its own criteria for determining the residence of the employer. This might result in different solutions for the same case, depending on the court which would examine it.
Finally, one could try an autonomous interpretation of the ‘183-day clause’. The criteria for such interpretation should also be discussed.
SCHOUERI, L. E.. The residence of employer in the ‘183-day clause’ Article 15 of the OECD’s Model Double Taxation Convention. Intertax, Amsterdam, v. 21, p. 20-29, 1993