Belgium: Tax treaty classification of income from photo shooting derived in United Kingdom by a Belgian resident model

In a recently published decision of 16 March 2009 the Lower Court of Liege (in Dutch Luik) had to decide on the classification of the foreign activities of a model. The model had participated in a series of photo shootings in the United Kingdom for the purposes of publishing in catalogues and magazines. The Court decided as follows:
– the Court held that for Article 17 of the tax treaty to apply the income needs to be directly related to a public performance. For a model this would be the case in case of participation in a fashion show, but not in case of participation in photo sessions for publication in catalogues and magazines+
– therefore the Court held that the activities constituted independent activities, and since the model did not maintain a fixed base in the United Kingdom only the residence country Belgium was held to be entitled to tax the pertinent income.

It is interesting that the refusal of the Court to apply Article 7 to these activities coincides with the proposed amendment to Commentary to Article 17 of the OECD Model according which activities of a model performing ?as such? would be excluded from the application of Article 17. On the other hand this exclusion seems to be inconsistent with the treatment of motion picture artistes which do also not necessarily participate in a public performance but are still explicitly mentioned in Article 17(1) of the OECD Model.