International Tax Review is part of the Delinian Group, Delinian Limited, 8 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2023

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Chilean IRS interpretation of Article 12 of Chilean double tax treaties

Sponsored by

bureaucracy-files-paperwork 600 x 375

Over the years, the Chilean IRS has issued a number of rulings on how to apply Article 12 (royalties) of double tax agreements (DTAs). These have been particularly in regard to the taxation over payments made from Chile to overseas countries for distribution rights, and their characterisation as intangible property.

Indeed, the Chilean tax authority, in Rulings No. 606 of 2015 and No. 2494 of 2016, referred to the application of Article 7 and Article 12 of the Chile–Spain DTA as a distribution agreement. Following the commentaries on Article 12 of the OECD Model Tax Convention, the taxpayer interpreted that payments for distribution rights should not fall within the scope of Article 12, but instead should fall under Article 7, since they would not be made for the use of, or the right to use, an element that was included in the definition of 'royalty' in Article 12.

However, the tax authority did not agree with this interpretation. Instead it declared that payments would consitute a royalty under Article 12 of the DTA, based on the fact that Spain made a special reservation, under which it stated that it did not concur with the interpretation that distribution rights for software should be deemed business profits.

Furthermore, the Chilean IRS ruled that, even if such a reservation did not exist, payments for the distribution of software should be deemed royalties, as Chilean DTAs do not follow the OECD Model Tax Convention, given that they include under the royalty definition the expression: "or other intangible property". The tax authority's understanding is that this phrase was expressly included in order to broaden the application of Article 12 to any kind of intangible asset. Based on this difference, the Chilean IRS, in this case, seems not to follow the commentaries issued by the OECD to the MTC.

These criteria were further confirmed through Rulings No. 124 and No. 125 of 2018, where the Chilean IRS insisted that payments for distribution rights on software and on a television channel, should fall within the scope of Article 12, because they would constitute "other intangible property".

Even though these criteria are highly debatable, it cannot be ignored that the Chilean IRS seems to have a formal position on the taxation that should be applicable to distribution rights at least for DTA purposes. However, from a domestic law perspective, and particularly as regards software, there are still some exemptions that could be explored.

Given the above, it is quite important that companies operating in Chile under any kind of distribution structures take into account the Chilean IRS's position on the application of Article 12, as this could potentially imply that withholding taxes could be applied in Chile. It is also crucial that a thorough review of the relevant agreements and licences is performed, to further confirm the tax treatment from a domestic law perspective, especially to determine whether some exemptions available on software could be applied.






Santiago Lopez ( and Nicolas Foppiano (

PwC Chile


more across site & bottom lb ros

More from across our site

Bartosz Doroszuk of MDDP offers insights on Poland’s new tax legislation on shifted profits, as the implementation deadline looms nearer.
Four tax specialists preview the UK’s transfer pricing requirements, which come into effect on April 1.
The rise of the QDMTT will likely change how countries compete on tax and transfer pricing policy, but it may not reverse decades of falling corporate tax rates.
ITR’s latest quarterly PDF is going live today, leading on the EU’s BEFIT initiative and wider tax reforms in the bloc.
COVID-19 and an overworked HMRC may have created the ‘perfect storm’ for reduced prosecutions, according to tax professionals.
Participants in the consultation on the UN secretary-general’s report into international tax cooperation are divided – some believe UN-led structures are the way forward, while others want to improve existing ones. Ralph Cunningham reports.
The German government unveils plans to implement pillar two, while EY is reportedly still divided over ‘Project Everest’.
With the M&A market booming, ITR has partnered with correspondents from firms around the globe to provide a guide to the deal structures being employed and tax authorities' responses.
Xing Hu, partner at Hui Ye Law Firm in Shanghai, looks at the implications of the US Uyghur Forced Labor Protection Act for TP comparability analysis of China.
Karl Berlin talks to Josh White about meeting the Fair Tax standard, the changing burden of country-by-country reporting, and how windfall taxes may hit renewable energy.