Concept
Corporate tax residence answers one question: which state is entitled to tax a company's worldwide profit, not just the profit earned on its territory. Every other corporate tax test — permanent establishment, withholding at source, CFC attribution — divides up pieces of income; residence assigns the whole base and, with it, the company's filing obligations and its right to invoke tax treaties as "a resident of a Contracting State." One question comes before it. Residence presupposes an entity that is an opaque person in its own right: a partnership, or a US LLC left transparent, has no residence of its own to assign, because the income lands on its members wherever they happen to be resident — and under the check-the-box rules an eligible entity can move between those worlds by election (Treas. Reg. §301.7701-3). That prior question belongs to entity classification.
The capability residence creates is concrete. A company that is tax resident of, say, Ireland files Irish corporation tax returns on its worldwide profit, obtains an Irish certificate of tax residence, and on the strength of that certificate claims reduced withholding rates under Ireland's treaties. The same mechanism cuts the other way: a state that considers the company resident by its own test will assert tax on everything the company earns anywhere, whether or not another state does the same.
One example shows the whole machine. A trading company is incorporated in Delaware; its founder moves to London and runs it from there — negotiating, deciding acquisitions, approving budgets. Under US law the company is and remains domestic: IRC §7701(a)(4) defines a domestic corporation as one "created or organized in the United States or under the law of the United States or of any State," and neither the statute nor Treasury Regulation §301.7701-5 asks where management sits. Under UK law the same company has become UK resident, because the case-law test — central management and control — abides where its real strategic decisions are taken. Two full worldwide claims now overlap, and the 2001 US–UK treaty does not break the tie automatically: Article 4(5) sends a dual-resident company to the two competent authorities, and until they agree, the company "shall not be entitled to claim any benefit provided by this Convention" apart from a narrow core.
Three features of this test are routinely misread. First, it is not registration: a registered office, a legal address and a company number fix which company law governs the entity — they do not, in a management-test state, fix where it pays tax, and a certificate of incorporation proves nothing about residence there. Second, it is not permanent establishment: a PE gives another state the right to tax the profit attributable to a local presence — a slice, with its own rules — while residence claims the whole; having a PE somewhere does not make the company a resident there, and residence somewhere does not prevent a PE elsewhere. Third, it is not a document exercise: in every management-test dispute of the last century, from De Beers (1906) to Development Securities (2020), the tribunal read past the board minutes to the question of who actually decided.
What Residence Decides — and What It Does Not
Residence, registration and permanent establishment are three different legal objects that constantly get merged into one in practice. The table separates them before anything else, because half of all corporate residence errors are really category errors.
| Question | Incorporation / legal address | Tax residence | Permanent establishment |
|---|---|---|---|
| What it determines | Which company law governs the entity: organs, capital, insolvency, ability to migrate | Which state taxes worldwide profit; which treaty network the company can invoke | Whether a state where activity happens may tax the profit attributable to that activity |
| Established by | A registry act — one-time, documentary | The residence test of each interested state — factual in management regimes, documentary in incorporation regimes | Facts of presence: fixed place, dependent agent |
| Scope of the tax claim | None by itself | Worldwide profit, plus filing, withholding-agent and disclosure obligations | Attributable profit only, plus local registration and filing |
| Can it multiply? | One incorporation at a time | Yes — dual (or plural) residence when tests overlap | Yes — one PE per state of activity, in parallel with residence elsewhere |
The practical consequence of the middle column is the largest: the residence state taxes profits the company earns anywhere, requires returns and accounts under its own rules, typically makes the company a withholding agent for its outbound payments, defines it as "resident of a Contracting State" for treaty purposes — and, in many systems, charges a deemed disposal of assets when residence leaves. Irish law, for instance, treats a company that ceases to be resident as having disposed of its assets at market value, with capital gains tax on the result, subject to narrow exceptions (Revenue guidance). Residence is also the reference point for other people's tests: whether a shareholder's home state treats the company as a controlled foreign company is measured against where the company is resident and how it is taxed there.
Residence also has a ceiling. It settles which state may tax the whole base; it does not settle how large that base is. What a resident company may report on intra-group sales, licences and loans is governed by transfer pricing rules that apply wherever the parties are resident, and the slice another state may tax where activity actually happens is measured by permanent establishment rules on their own facts. Nor does domestic residence by itself open a treaty. Treaty residence has a separate definition: a "resident of a Contracting State" is a person who, under that state's laws, is "liable to tax therein by reason of his domicile, residence, citizenship, place of management, place of incorporation, or any other criterion of a similar nature," and the definition excludes a person liable to tax there only on income from sources in that state (US–UK treaty, Art 4(1)). A company incorporated where no corporate income tax exists can therefore be resident for domestic purposes and have no treaty residence to invoke at all.
Two Families of Domestic Tests
National definitions of corporate residence fall into two families, and most real regimes combine them.
Incorporation-based tests attach residence to the legal act of creation. The United States is the pure case: a corporation is domestic if "created or organized in the United States or under the law of the United States or of any State" (IRC §7701(a)(4)), foreign if it is not (§7701(a)(5)), and the regulation ties the classification solely to the jurisdiction of organization. Management can sit anywhere on earth without moving the needle — which is why a Delaware corporation cannot "move" its US tax residence by relocating its board, and why a foreign-incorporated company run from New York does not thereby become a US resident (its US exposure runs through effectively connected income and treaty PE rules instead — a different, narrower claim; see how this plays out for a non-resident's US LLC). The main carve-out runs the other way: US anti-inversion rules (IRC §7874) can deem a foreign-incorporated acquirer of a US business to be a domestic corporation — an incorporation regime defending itself against incorporation-shopping.
Management-and-control tests attach residence to where the company is actually run. The United Kingdom is the source of the doctrine: a company incorporated abroad is UK resident if its central management and control — the highest level of decision-making, not day-to-day operations — abides in the UK. The rule is case law, over a century old, and it is examined in the next section because everything turns on how tribunals apply it.
Most regimes are hybrids, and the direction of the hybrid matters:
| Regime | Incorporated locally | Incorporated abroad | Treaty override |
|---|---|---|---|
| United States | Always domestic — IRC §7701(a)(4) | Never resident, wherever managed | No override of domestic status; dual residence handled treaty-by-treaty (e.g. US–UK Art 4(5)) |
| United Kingdom | UK resident by CTA 2009 s.14 | UK resident if central management and control is in the UK (case law) | CTA 2009 s.18: a company treaty-resident elsewhere is non-UK resident for the Corporation Tax Acts |
| Ireland | Resident if incorporated on or after 1 January 2015 (pre-2015 companies transitioned by end-2020), unless treaty-resident elsewhere | Resident if centrally managed and controlled in Ireland | Built into the incorporation rule itself — treaty residence elsewhere switches it off |
| Germany | Resident if the registered office (Sitz) is in Germany — KStG §1(1) | Resident if the place of management (Geschäftsleitung) is in Germany — either connecting factor is sufficient on its own | No domestic switch-off of the UK s.18 type: a treaty tie-breaker limits what Germany may tax, but §1 unlimited liability is not itself removed by the statute |
The Irish row carries a lesson about how these regimes evolve. Until 2015 an Irish-incorporated company managed from a zero-tax jurisdiction could be resident nowhere useful — the architecture behind the "double Irish." Ireland closed it by adding an incorporation rule (TCA 1997 s.23A, as described by Revenue): incorporation now creates residence by default, and management-and-control continues to capture foreign companies run from Ireland. The global trend is exactly this — regimes add the test they lacked, so the space for a company resident nowhere keeps shrinking, while the space for a company resident twice keeps growing.
The German row is worth a second look, because it shows what a management test looks like outside the common law. Both connecting factors are statutory: a corporation is subject to unlimited German corporate income tax if it has either its registered office or its place of management in Germany, and that unlimited liability "extends to all income" (KStG §1(1)–(2)). The Fiscal Code then defines the terms — the registered office is the place fixed by law, articles or statutes (AO §11), and the place of management is "the centre of commercial executive management" (AO §10). That centre is not the same target the UK aims at. The British test looks for the highest level of strategic control, wherever the routine business is run; the German definition points at where the executive running of the business is concentrated. Two management-test states can therefore apply honest tests to identical facts and land on different countries — which is one of the ordinary ways a company becomes dual resident without anyone planning it.
Central Management and Control: Where Decisions Actually Abide
The UK line of authority is worth learning even outside the UK, because it is the most fully litigated version of the question every management-test state asks. The founding formulation is Lord Loreburn's in De Beers Consolidated Mines Ltd v Howe (1906): a company resides "where its real business is carried on … and the real business is carried on where the central management and control actually abides." De Beers mined diamonds in South Africa and was incorporated there; it was held UK resident because the board that actually directed it sat in London. From the first case, the test looked through the registry to the decision-makers.
HMRC's published approach (Statement of Practice 1/90) turns the doctrine into three questions asked in order: do the directors in fact exercise central management and control; if so, where do they exercise it; and if not, where and by whom is it exercised. The location of board meetings is "important in the normal case, but not necessarily conclusive" — directors who actually run a wholly-UK business from the UK do not export residence by flying out for formal meetings. And Unit Construction v Bullock (1960) supplies the mirror rule: African subsidiaries whose constitutions required boards to meet outside the UK were still UK resident, because the London parent in fact ran them — the constitution said one thing, the facts said another, and the facts won.
Three modern cases mark out where the line runs between a real board and a bypassed one:
- Wood v Holden [2006] EWCA Civ 26 — the taxpayer side of the line. A Netherlands company in a share-sale structure had a professional corporate director that did little more than consider and sign the key documents. HMRC argued the real decisions were made by the UK owners and their advisers. The Court of Appeal disagreed: the director had been "advised and influenced, but not bypassed nor stood aside." A board that makes few decisions, on advice, with strong shareholder influence, still makes them — influence is not usurpation.
- Laerstate BV v HMRC [2009] UKFTT 209 (TC) — the other side. A Netherlands company's sole active mind was its UK-resident shareholder; the nominal director signed what he was told to sign without discussion or deliberation. The tribunal located central management and control with the shareholder in the UK: a director who abdicates to a dominant outsider is not exercising control, he is recording it.
- Development Securities plc v HMRC [2020] EWCA Civ 1705 — the refinement. Jersey subsidiaries were set up with local professional directors specifically to be Jersey-resident during a short critical window of a tax scheme; the directors met in Jersey, took advice, and approved transactions that made no commercial sense for the companies themselves because the UK parent had decided they should happen. The Court of Appeal held the companies were UK resident in the window: the Jersey boards had examined whether the companies could enter the transactions — legality, authority, documentation — but the decision whether they should had been taken in London, and the boards simply acceded to it.
Two further propositions finish the doctrine, and both cut against tidy answers. Control can be divided: in the Union Corporation cases (34 TC 207) the Court of Appeal treated a company as resident wherever acts of controlling power and authority are exercised "to some substantial degree," rather than hunting for a single pinnacle, and Swedish Central Railway Co v Thompson (9 TC 352) had already observed that it is "rather easier to think of a company having two places of residence than it is of a natural person" (HMRC INTM120210). A genuinely split board is a route into dual residence, not a hedge against it. And dependence is not abdication: HMRC's own review guidance accepts that "it remains possible for central management and control to lie with a subsidiary's directors even where it seems improbable that they would act other than in accordance with the directors of the parent" (INTM120180). The question is whether the board considered the decision and could have refused it, not whether anyone expected it to.
Local substance sits beside this question rather than answering it. Payroll, premises and expenditure recorded under an economic substance regime show that people and costs are where the company says they are; they do not show where a decision was taken. Substance filings are useful evidence in a residence dispute and have never been a defence to one.
Board Minutes Against the Substance of Decision
Every residence-planning memo says "hold board meetings in the right place and minute them." The case law shows why that is necessary but nowhere near sufficient. A minute proves that a meeting occurred, who attended, and what was resolved. It does not prove that the decision was made there — and that is the fact in issue. Tribunals reconstruct the decision from the whole evidence trail, and the trail speaks louder than the minute book:
| Decision type | Evidence that supports local control | Evidence that destroys it |
|---|---|---|
| Strategy, budgets, business plan | Papers circulated in advance; directors' comments and questions; alternatives considered; a rejected proposal on record | Strategy documents authored at the shareholder level and adopted verbatim; no board-level record of alternatives |
| Acquisitions and disposals | Board sees the deal before terms are final; negotiates or amends; instructs its own advisers; can and sometimes does say no | Term sheet signed or price fixed before the board ever met; board resolution dated after the economic decision; could-not-should review of a done deal |
| Financing and security | Board weighs terms, considers the company's own interest, records why the terms are acceptable | Uncommercial terms accepted without recorded reasoning — the Development Securities fact pattern |
| Distributions | Reserves and solvency actually reviewed; timing decided by the board | Dividend "requested" by the shareholder and paid the same day; resolution drafted by the recipient |
| Appointments and key contracts | Board selects, negotiates fees, supervises | Appointees imposed from outside; board learns of contracts after signature |
| Day-to-day operations | Largely irrelevant either way — the test looks at the highest level of control, not administration | Also irrelevant: heavy local administration cannot compensate for strategic decisions made elsewhere |
Read as a whole, the matrix reduces to one discipline: the paper a company generates before a decision — drafts, questions, dissent, time to consider — is worth more than the paper generated at it. Emails are part of the trail whether anyone likes it or not: in the litigated cases, the sequence of correspondence (who proposed, who instructed, who was informed) did more work than any formal document.
Dual Residence and the Treaty Layer
When an incorporation state and a management state both claim the company — or two management states read the same facts differently — the company is dual resident, and each state applies its full worldwide claim. Domestic law rarely solves this alone; the treaty between the two states is the instrument that can, and its mechanics changed in 2017.
The old rule in treaties following the pre-2017 OECD Model broke the tie automatically: a dual-resident company was deemed resident only of the state of its place of effective management (POEM). One fact — where key management and commercial decisions are in substance made — decided the treaty outcome without anyone's discretion. Many in-force treaties still carry this rule.
The 2017 rule abandoned the automatic tie-breaker. Article 4(3) of the 2017 OECD Model — carried into existing treaties by Article 4 of the MLI where both sides' positions match — sends the case to the two competent authorities, who "shall endeavour to determine by mutual agreement" the company's treaty residence, "having regard to its place of effective management, the place where it is incorporated or otherwise constituted and any other relevant factors." The sting is in the default: "in the absence of such agreement, such person shall not be entitled to any relief or exemption from tax provided by the Covered Tax Agreement except to the extent and in such manner as may be agreed." No agreement — no treaty benefits. Whether a given treaty was actually modified is not guessable from the Model: it depends on both states' MLI notifications and reservations, checked pair by pair — the same matching exercise described in the tie-breaker guide.
Some treaties wrote the negotiated approach in directly. The 2001 US–UK treaty, Article 4(5): where a person other than an individual is resident of both states, the competent authorities "shall endeavour to determine by mutual agreement the mode of application of this Convention," and failing agreement the company cannot claim any treaty benefit except relief from double taxation, non-discrimination and the mutual agreement procedure itself. HMRC's guidance on such cases is candid about the interim position: while the authorities have not agreed, the company simply remains dual resident — and resident in the UK.
One thing the corporate tie-breaker is not: the individual ladder. There is no "permanent home," no "centre of vital interests," no habitual-abode step for companies — that sequence belongs to individuals under Article 4(2) and its own guide. Importing it into a corporate analysis produces confident answers to the wrong test.
For a company that finds itself dual resident, the next analysis is concrete and runs in order: identify the exact treaty in force between the two states and read its Article 4 text as modified (or not) by the MLI — the automatic POEM rule and the negotiated rule lead to different strategies; if POEM applies, assemble the evidence of where effective management sits, because the outcome follows the facts directly; if the negotiated rule applies, prepare the competent-authority file — chronology of decisions, board composition, incorporation history, economic ties — and initiate the mutual agreement procedure, while planning cash flows on the assumption that treaty relief is suspended until agreement; and in parallel, check what each domestic law does in the meantime — a UK example: under CTA 2009 s.18 a company that wins treaty residence elsewhere becomes non-UK resident for domestic purposes, which itself can trigger exit consequences.
Proving Residence to Someone Else
Residence is a question of fact in the abstract and a document in practice: a foreign payer withholding at its full domestic rate will not drop to a treaty rate on assurances. Each state runs its own certification channel, and the certificates say less than the people relying on them assume.
HMRC certifies that a company "is a resident of the UK within the meaning of the DTA" — not residence at large. The request has to identify the treaty and the Article and income source it relates to; HMRC checks the position and may refuse where it is clear the claimant would not qualify under that Article, and its guidance states plainly that a certificate "will not guarantee" a successful claim, because the overseas authority decides (INTM162010). The US channel is a form exercise with a price: an entity applies on Form 8802, whose use is mandatory and which carries a user fee, and receives Form 6166 — a letter on Treasury stationery certifying that the entity is a US resident for income tax purposes (IRS).
Two limits follow. A certificate records the issuing state's view under its own test; it does not bind the other state, and in a dual-residence case both states can certify the same company for the same year. And residence is necessary, not sufficient: under the principal purpose test written into modernised treaties, a benefit "shall not be granted" where it is reasonable to conclude that obtaining it "was one of the principal purposes of any arrangement or transaction," unless granting it would accord with the object and purpose of the relevant provisions (MLI Art 7(1)). The certificate answers who the company is; the anti-abuse rule asks why the structure exists, and a claim to reduced withholding needs both answers.
Leaving: The Exit Charge and What Stays Behind
Residence is expensive to acquire and expensive to give up. A state that can lose a company's worldwide base as a matter of fact — a management regime above all — settles up at the border, taxing gains that have accrued but not been realised.
The UK rule is the model. Where a company ceases to be UK resident, it "shall be deemed for all purposes of this Act to have disposed of all its assets … immediately before the relevant time" and immediately to have reacquired them "at their market value at that time" (TCGA 1992 s.185). The charge attaches to the moment of departure and to no transaction at all — which is what gives the date on which management moved a price. The carve-out is the instructive part: assets that remain in the UK and are used in, or held for the purposes of, a trade carried on through a UK permanent establishment are excepted from the deemed disposal (s.185(4)). The departing state gives up the worldwide claim and keeps the slice it can still reach — the two objects the opening table separated, now operating in sequence.
The EU generalised the design. Under the Anti-Tax Avoidance Directive a Member State taxes market value less value for tax purposes where, among other cases, "a taxpayer transfers its tax residence to another Member State or to a third country, except for those assets which remain effectively connected with a permanent establishment in the first Member State"; the taxpayer has a right to pay that exit tax in instalments over five years where the destination is an EU or qualifying EEA state (Directive (EU) 2016/1164, Art 5). Ireland's deemed disposal on ceasing to be resident is the same idea in national form.
Three Scenarios, One Evidence Trail
The scenarios below change one variable — who really decides — and follow both the residence outcome and the paper that proves it. Facts and figures are illustrative teaching constructions, not case reports.
Remote board, external decision-maker
A holding company is incorporated in a no-tax jurisdiction with three local professional directors. Board meetings happen quarterly by video, minuted impeccably. Every transaction, however, arrives pre-negotiated by the beneficial owner, who lives in London: he agrees terms with counterparties, instructs lawyers, and the board's packet contains final documents for approval. This is the Laerstate/Development Securities fact pattern: the directors verify that the company can sign; whether it should was decided in London before they ever met. On the UK test, central management and control abides with the owner; the company is UK resident, its worldwide profit within UK corporation tax, and its home-jurisdiction status is irrelevant to that claim. The evidence trail that decides the case is the one nobody curated: e-mail chronology showing decisions preceding meetings, term sheets dated before board packets, minutes recording no questions and no alternatives.
Local directors with real authority
Same shell, different practice. The board receives proposals as proposals: drafts circulate two weeks ahead; directors ask for valuation support; one financing is renegotiated because the board considered the security package too onerous; one acquisition is declined and the refusal minuted with reasons. The owner is consulted and his views carry weight — but the record shows deliberation happening at the board, on the company's own interest. This is Wood v Holden territory: advised and influenced, not bypassed. Central management and control sits where the board exercises it, and a UK-side challenge fails on the same chronology that convicted the first company — because here the chronology shows decisions being formed at the meetings, not merely recorded there.
Moving management without re-incorporating
A Delaware-incorporated company's founder relocates to London and continues running it. Nothing was filed anywhere, yet the tax geometry changed completely: the company remains US domestic forever under IRC §7701(a)(4) — an incorporation regime cannot be exited by moving people — and it has become UK resident by central management and control from the day decisions began abiding in London. Dual residence arises not from a plan but from a house move. Under US–UK Article 4(5) there is no automatic tie-break: the competent authorities may agree a mode of application, and until then treaty benefits are largely unavailable. The evidence question now runs in both directions — the company needs a defensible date on which management moved (lease of the London office, first UK board meeting, relocation of the decision-maker), because that date starts UK worldwide taxation, and, in the mirror case of management moving out of a management-test state, the same date typically triggers that state's exit charge on unrealised gains and, where a treaty override like CTA 2009 s.18 operates, the loss of domestic residence itself. Management migration is a taxable event in slow motion; undocumented, it is a taxable event with a date chosen later by the least sympathetic party.
Q/A
Our company's legal address is in a zero-tax jurisdiction — is it taxed only there?
The legal address answers the company-law question, not the tax question. It fixes residence only for incorporation-regime purposes in that jurisdiction itself. Any management-test state from which the company is actually run — where its strategic decisions are made — can claim the company as its own resident and tax worldwide profit, regardless of the registry. The registered office is one fact among many, and in the litigated cases it was the least important one.
We have a permanent establishment in Germany — has the company become a German tax resident?
No. A permanent establishment gives Germany the right to tax the profit attributable to the German presence — a defined slice, with registration and filing for that slice. Residence is a separate test on separate facts (for Germany, principally the place of management), and a PE does not create it. The two claims coexist: a company can be resident in one state and hold PEs in five others, each taxing only its attributable share.
The company turned out to be dual resident — what exactly do we do next?
Three steps in order. First, find the applicable treaty and establish which Article 4 text governs: the old automatic place-of-effective-management rule, or the post-2017 negotiated rule — checking both states' MLI positions, since the MLI rewrites Article 4 only where notifications match. Second, if POEM decides, assemble the management-location evidence and apply it; if the negotiated rule applies, prepare a competent-authority file (decision chronology, board composition, incorporation, economic ties) and initiate the mutual agreement procedure. Third, plan the interim: until agreement, treaty benefits may be suspended, and each state's domestic law — filing, withholding, exit rules — continues to apply in full.
If our board minutes are in perfect order, is residence safe?
No. Minutes prove a meeting happened and what was resolved — not that the decision was made there. Tribunals reconstruct decisions from the whole trail: papers circulated in advance, questions asked, alternatives weighed, timing of resolutions against the underlying transactions, e-mail sequences showing who proposed and who instructed. In Development Securities the Jersey minutes were in order; the companies were UK resident anyway, because the boards had reviewed legality while the commercial decision arrived from London.
Our directors follow the owner's recommendations — is that already fatal?
Not by itself. The case law distinguishes influence from usurpation: in Wood v Holden a board that decided little, on advice, under a dominant shareholder still controlled the company because it genuinely made the decisions it signed. The line is crossed when the board stops deliberating — signs without consideration, or examines only whether the company can do what has already been decided elsewhere. What convicts is not the owner's voice but the board's silence.
Can our US corporation become non-US by moving its management abroad?
No. US status follows incorporation alone: a corporation organized in a US state is domestic wherever it is managed, and stays so until it ceases to exist under US law (re-domestication is a corporate transaction, not a management move — and anti-inversion rules can even deem some foreign-incorporated companies domestic). Moving management abroad does not remove US taxation; it can add a second residence in a management-test state on top of it.
What happens in the old country when we move management to a new one?
Three things to check. Dual residence first: if the old state uses an incorporation test, its claim survives the move entirely. Exit charges second: management-test states commonly treat outbound migration as a deemed disposal of assets at market value — Ireland's rule is explicit — so the move has a tax cost even with no sale. Treaty mechanics third: where the new residence wins under a treaty, override rules like the UK's s.18 convert the company to domestic non-resident, which is itself the trigger for exit consequences. The date of the move should be documented deliberately, because every one of these consequences attaches to it.
Is the corporate tie-breaker the same as the one for individuals?
No, and borrowing it is a standard error. The individual ladder — permanent home, centre of vital interests, habitual abode, nationality — exists only for individuals under Article 4(2). For companies, older treaties used a single automatic criterion (place of effective management), and post-2017 treaties use no automatic criterion at all: competent authorities decide by mutual agreement, weighing effective management, incorporation and other factors, with treaty benefits suspended in the meantime.
Does appointing local directors create residence where they sit?
Only if they genuinely exercise central management and control there — real deliberation, real authority to refuse, decisions formed rather than recorded. Professional directors who sign pre-decided transactions anchor nothing: the residence follows the real decision-maker, as the bypassed-board cases show. And a genuinely active board split across two countries can produce the opposite problem — management and control exercised to a substantial degree in each, which is one recognised route into dual residence.
Our board meets by video from several countries — where is management and control?
Where the decisions actually abide, which a video meeting makes harder, not easier, to locate. The inquiry stays factual: where the participants who actually shape decisions sit, where papers are prepared, where the deliberation that matters happens over time. A company that wants a defensible answer concentrates the substance — the deciding directors, the preparatory work, the record of deliberation — in one place, rather than relying on the formal designation of a meeting's venue.
Our vehicle is a partnership, or an LLC we left transparent — where is it resident?
Usually nowhere, in the sense this page uses. A vehicle treated as transparent has no worldwide base of its own: the income is attributed to its members and taxed by reference to their residence, so the question moves up a level. Two complications follow. Classification is state-specific — the same LLC can be transparent at home and opaque abroad, which is how hybrid mismatches arise — and under the US check-the-box rules an eligible entity can elect the answer, subject to the default classifications for domestic and foreign entities. And a transparent vehicle is generally not itself "liable to tax," so it is generally not a resident of a Contracting State for treaty purposes; access then depends on the members and on whatever the particular treaty says about fiscally transparent entities. Start with entity classification, not with residence.
We hold a certificate of tax residence — does that guarantee the treaty rate?
No. A certificate records that the issuing authority regards the company as its resident under the treaty definition, for the Article and income source stated in the request. HMRC says in terms that a certificate will not guarantee that the claim succeeds: the other state decides, applying its own view of residence and beneficial ownership, any limitation-on-benefits article, and the principal purpose test, which denies the benefit where obtaining it was one of the principal purposes of the arrangement. In a dual-residence case the certificate is weaker still, because the other state can hold — and certify — the opposite view until the competent authorities agree.