COMMENTARY


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Collapse <span style='font-weight:bold; color:#000;'>Article 5: Permanent Establishment</span>Article 5: Permanent Establishment
1 INTRODUCTION
2 FIXED PLACE PERMANENT ESTABLISHMENT
3 PERMANENT ESTABLISHMENT ILLUSTRATIONS [Art. 5(2)]
4 CONSTRUCTION PE AND SERVICE PE
5 PE EXCLUSIONS
6 DEPENDENT AGENCY PERMANENT ESTABLISHMENT
7 SUBSIDIARY AS A PERMANENT ESTABLISHMENT
8 BEPS ACTION ITEM 7 AND PERMANENT ESTABLISHMENT
Collapse <span style='font-weight:bold; color:#000;'>Article 7: Business Profits</span>Article 7: Business Profits
1 SOURCE RULE
2 THE BASIC RULE OF ART. 7
3 LIMITED FORCE OF ATTRACTION RULE
4 RESIDENCE COUNTRY TAXATION
6 INCOME CHARACTERIZATION
8 INDEPENDENT ENTERPRISE HYPOTHESIS
10 INCOME ATTRIBUTION
11 COMPUTATION METHODS
12 COMPOSITE CONTRACTS
13 PRESUMPTIVE TAXATION
15 EXPENSE DEDUCTION
17 RENVOI CLAUSE
18 RULE OF CONSISTENCY
19 SPECIAL VERSUS GENERAL RULE
Collapse <span style='font-weight:bold; color:#000;'>Monographs</span>Monographs
Meaning and Scope of "Alienation" in Capital Gains Articles in Tax Treaties
Collapse <span style='font-weight:bold; color:#000;'>Newsletter Articles</span>Newsletter Articles
Business Income Characterization In Absence of Fees For Technical Services Provisions In Tax Treaties
Dependent Agency Permanent Establishment: What Does 'Habitual' Conclusion Of Contracts Mean?
PE Concept: The Principle Of Spatial Delimitation
BEPS Action Item 7: Construction PE And Split-contracts
Income Attribution Concept: Renvoi Clause
Limited Force of Attraction Rule Misapplied In An Indian Decision
BEPS Action Item 7: Commissionaire Arrangement and Dependent Agency Permanent Establishment
Income Attribution Concept: Independent Enterprise Hypothesis
Formula One World Championship: The Delhi High Court's Landmark Decision On 'Disposal Test', 'Duration Test' and 'Functionality Test' For Permanent Establishment (PE)
BEPS Action Item 7 And Independent Agents
Income Attribution Concept: The Principle Of Territorial Nexus
Construction PE Provisions In Art. 5(2) Of Tax Treaties: Subject To Fixed Place PE Prerequisites Under Art. 5(1)?
Indian Equalisation Levy: Is It Withholding Tax On Foreign Enterprises' Business Profits?
BEPS Action Item 7, Permanent Establishment, And Preparatory Or Auxiliary Activities
Income Attribution concept: 'Mixed Method'
BEPS Action Item 7: Permanent Establishment And Anti-Fragmentation Provisions
PE Concept: Meaning of "Office"
Income Attributable To PE - Determination As Per The Tax Laws Of Source State Or Residence State?
Permanent Establishment In Digital Economy: Is Human Presence Relevant?
Could A Common Director In Parent Company And Subsidiary Give Rise To A Permanent Establishment?
Attribution Concept: Income Characterization
Could A Service Provider's Technical Expertise Cause Applicability of Art. 12 (Royalties and Fees For Technical Services) Instead of Art. 7 (Business Profits) of A Tax Treaty?
Dependent Agency PE Concept: Legal And Economic Independence
PE Exclusion Provisions And Fixed Place of Business For Serving Others
The Proposed Interest Deduction Restrictions In The Indian Finance Bill, 2017: Could It Flare Up Tax Litigation In Guise Of BEPS Action Item 4 Implementation?
Art. 7 (Business Profits) Of Tax Treaties: Can The Proposed Indian Interest Deduction Limitation Apply In Tax Treaty Situations?
PE Concept: "Permanent Establishment" Definition In The Proposed Indian Anti-Avoidance Provision - Is It Redundant?
Art. 7: Income Attribution To Permanent Establishment On Presumptive Basis
Could A Website Amount To A Fixed Place Permanent Establishment?
PE Concept: Substantial Equipment
BEPS Action Item 7 Implementation: New Zealand Expresses Apprehensions About The Australian Approach For Diverted Profits Tax
Could Mere Provision Of Support Services By A Service Provider Give Rise To A Foreign Client's Fixed Place PE In The Service Provider's Jurisdiction?
PE Concept: Commissionaire Arrangement
Can Mere Presence Of A Project Office In Source State Be Sufficient For Existence Of A PE?
Software Income Characterization (Business Profits Versus Royalty): Does It Make Difference If Software And Hardware Are Separately Invoiced?
Dependent Agency PE Concept: When Can An Agent Be Considered As Acting "Almost Wholly" On Behalf Of A Principal?
Could A Foreign Enterprise's Maintenance Activities Lead To An Installation PE?
Dependent Agency PE: Could An Agent Representing Multiple Principals Be A Dependent Agent?
Attribution Concept: Indirect Method - Applicability Upheld In India
Application Of Indirect PE-Attribution Method Combined with Inference From Presumptive Taxation Provisions
Art. 7 Of Tax Treaties: Limited Force Of Attraction Rule Versus The Basic Rule
Attribution Concept: 'No Unfair Advantage' Principle
BEPS Action Item 7: New Zealand Proposes Deemed PE Rules
PE Concept: Auxiliary Activities
Art. 7: 'Transactions' Between Permanent Establishment (PE) And Head Office, And Entitlement For Tax Incentives
Indian Income Tax Appellate Tribunal (ITAT) Upholds Denial of Expense Deduction For Interest Payment By A UK Bank's Indian PE To Head Office
Critique: Is The Indian ITAT's Decision In Standard Chartered Bank Consistent With Art. 7 Of The India-UK Tax Treaty?
Art. 7 Concept: 'Split Approach'
PE Concept: Disguised Permanent Establishment (PE)
Could A Home Office Amount To A Permanent Establishment?
Permanent Establishment (PE): Burden Of Proof On Tax Authorities Or Taxpayer?
The Danish Tax Board's Construction PE Ruling Dated 26 September 2017 – What could have been done to mitigate PE exposure?
Could a court disregard a mutual agreement procedure (MAP) resolution of the competent authorities of the Contracting States?
Important German Decision: Concept of ‘Unity of Execution’ Between Multiple Projects
Important German decision on ‘commercial and geographical coherence’
US Letter Ruling: Existence of construction permanent establishment due to commercially and geographically interconnected projects
UK Decision in The Irish Bank Resolution Corporation Ltd. v. HMRC: A Case Of Treaty Override?
French and Spanish Courts reject the tax authorities’ attempts to attribute notional capital to permanent establishments of foreign banks
Are cloud computing payments 'royalties' under tax treaties?
Royalties characterization under tax treaties: Which Contracting State's intellectual property law must be taken into account?
The French Supreme Administrative Court characterizes a foreign vendor’s interest income as ‘business profits’ not taxable in the Source State
Tax treaty characterization of partners' interest income: The German Federal Tax Court reaches divergent conclusions
A landmark German decision on relevance of human presence for existence of a fixed place permanent establishment
An important German Decision: Could computer server be a fixed place permanent establishment?
Italian E-commerce Ruling: Could a computer server give rise to a fixed place permanent establishment?
Is the Indian equalisation levy is a direct tax?
Important Brazilian Court Decisions fortify the view that the Indian version of equalization levy is a tax on income
Some dissimilarities between the OECD/ BEPS and the Indian versions of the equalisation levy
Does a tax cease to be tax on income merely because it is imposed on gross consideration?
Does Art. 7 of tax treaties preclude imposition of exit tax?
Important German Court Decision: Access to facilities at customer’s premises did not give rise to fixed place permanent establishment
Permanent Establishment: The Indian Supreme Court’s Formula One decision misapplied?
The Italian Supreme Court’s commissionaire decision: an interesting case study in the post-BEPS era
French Supreme Administrative Court: Agent acting as mere communication channel could not give rise to a dependent agency permanent establishment
The Indian ITAT’s recent decision rejecting applicability of the LOB article in a tax treaty: Could the MLI make a difference?
Canadian Landmark Decision: Application of GAAR denied in a tax treaty situation
Important Australian Decision: The situs of the meetings of the Board of Directors was not decisive for determination of a foreign company's place of effective management
Swiss court holds that a foreign company’s place of effective management was not in the jurisdiction where the Board meetings were held
Place of effective management (POEM) of a company: the situs of the meetings of the Board of Directors was not a sufficient factor
Two landmark US court decisions: the concept of ‘significant economic presence’ rejected
Two important US court decisions: The concept of ‘significant economic presence’ recognized
Select precedents, where the threshold for the ‘duration test’ was set at the opposite ends of the spectrum
Some interesting precedents: Existence of fixed place permanent establishment denied due to short activity-duration
‘Duration test’ for permanent establishment: Two interesting cases where 6-month time threshold was applied
Income characterization: ‘rights in respect of property’ versus ‘transfer of rights in property’
Restrictive conditions in technology transfer agreements: impact on income characterization
An interesting Australian decision: The ‘ambulatory approach’ for tax treaty interpretation upheld
Legal systems: Impact on tax-driven transaction structures
GAAR Series: Could GAAR apply if post-tax income from a foreign investment was higher than (hypothetical) post-tax income from domestic investment?
Analysis of the 'functionality test' and 'preparatory or auxiliary activities' issues in the Danish Tax Board's Christmas Tree Plantation PE ruling
BEPS Action Item 1: Digital economy, market jurisdictions and value creation -the underlying rationale for various jurisdictions’ divergent views
GAAR Series: The Canadian Supreme Court’s landmark decision on principles for interpretation of statutory GAAR and abusive avoidance transactions
GAAR Series: The New Zealand Supreme Court’s landmark decision – Non-applicability of SAAR did not preclude applicability of GAAR in a restructuring transaction
GAAR Series: A landmark case of the Canadian Supreme Court on ‘series of transactions’
Why the Indian ITAT’s decision in Godaddy.com is erroneous?
GAAR Series: The Canadian Supreme Court’s landmark GAAR case on interpretation principles, tax benefit, and burden of proof
Interplay between Art. 7 and Art. 9 of the tax treaties: Why the Indian ITAT’s decision in Fujifilm seems questionable?
An Interesting Australian GAAR decision on “arrangement” and “tax benefit”
GAAR Series: Should the ‘main purpose’ be determined subjectively or objectively?
GAAR Series: The General Anti Avoidance Rules (GAAR) From The Global Perspective
GAAR Series: An interesting South African judicial precedent on sale of shares, dividend stripping, and applicability of GAAR
GAAR Series: Could conversion of a partnership firm into a company trigger GAAR?
GAAR Series: The Timing Issue – the ‘main purpose’ behind an ‘avoidance scheme’ must be ascertained when the scheme was formulated, or when it was implemented?
The Nokia Case: An analysis of the minority view on whether a performance guarantee could give rise to a permanent establishment
GAAR Series: An interesting GAAR decision from New Zealand on ‘permissible tax advantage’
The Indian AAR’s Ruling in MasterCard – A Case Note
The Indian ITAT's permanent establishment case in ULO Systems (29 March 2019): was the Indian Supreme Court's decision in Formula One relevant?
Were the Formula One cases relevant for the Indian AAR's ruling in MasterCard?
Foreign tax credit: Some interesting Indian judicial precedents
Australian Federal Court’s decision holding that temporary accommodation did not negate taxpayer’s ‘permanent place of abode outside Australia’: Can it be applied in a tax treaty situation?
Opinion: Interplay between India-Netherlands tax treaty's Art. 10(2) read with MFN clause and implementation of MLI Art. 8(1) in the India-Slovenia tax treaty
Technical Discussion: If recipient of dividends is not the beneficial owner, can the tax treaty between the source state and the beneficial owner’s residence state apply?
Beneficial Ownership: Multi-jurisdictional Jurisprudence
Indian Budget 2021: Can the proposed domestic tax law definition of ‘liable to tax’ be read into Art. 4(1) of a tax treaty?
Brief Overview of the Indian judicial developments on the ‘liable to tax’ issue in context of Art. 4(1) of the tax treaties
Technical Note: PE and head office expense deduction - Does Art. 26 (Non-discrimination) of the India-UK tax treaty override Sec. 44C of the Indian Income Tax Act, 1961?

Please Note: Chapters 5, 7, 9, 14 and 16 have been intentionally left blank and are reserved for future use.