OECD Model Tax Convention on Income and on Capital For the purpose of eliminating double taxation, the Convention establishes two categories of rules:

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Presentation transcript:

OECD Model Tax Convention on Income and on Capital For the purpose of eliminating double taxation, the Convention establishes two categories of rules: 1. residence – based taxation 2. source – based taxation

Permanent establishment in the electronic commerce 1. Server (OECD, Germany, Poland, Sweden, Netherlands) 2. Web-site (Australia, Spain, Potugal) 3. No permanent establishment institute (Ireland, United Kingdom) 4. Virtual permanent establishment (India)

Concept of permanent establishment Permanent establishment Permanent establishment means a fixed place of business through which the business of an enterprise is wholly or partly carried on The term "permanent establishment" includes especially: a) a place of management; b) a branch; c) an office; d) a factory; e) a workshop, and f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources.

Tests for identification of permanent establishment Test of activities Test of representation Test of property: - the location test - the place of business test

the term “permanent establishment” shall be deemed not to include a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise; b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery; c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information, for the enterprise; e) the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character; f) the maintenance of a fixed place of business solely for any combination of activities mentioned in subparagraphs a) to e), provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character.

Examples of activities which would generally be regarded as preparatory or auxiliary include: Providing a communications link – much like a telephone line – between suppliers and customers Advertising of goods or services Relaying information through a mirror server for security and efficiency purposes Gathering market data for the enterprise Supplying information

The location test Permanent (circus, 6-12 month) Stationary (two cases; IceCube)

Test of representation Persons may be either individuals or companies. It would not have been in the interest of international economic relations Person has sufficient authority to bind the enterprise’s participation in the business activity in the State concerned Persons makes use of this authority repeatedly and not merely in isolated cases.