OECD Report on PEs 2010

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ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT

2010 REPORT ON THE ATTRIBUTION OF PROFITS

TO PERMANENT ESTABLISHMENTS

22 July 2010

CENTRE FOR TAX POLICY AND ADMINISTRATION


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FOREWORD

This Report was approved by the Committee on Fiscal Affairs on 22 June 2010 and by the OECD

Council for publication on 22 July 2010. The Recommendation adopted by the Council isincluded as an Addendum to the Report.


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TABLE OF CONTENTS

PREFACE ....................................................................................................................................................... 8

2010 REPORT ON THE ATTRIBUTION OF PROFITS TO PERMANENT ESTABLISHMENTS ........ 10

PART I: GENERAL CONSIDERATIONS ................................................................................................. 11

A. Introduction ..................................................................................................................................... 11

B.

Statement of principles used to attribute profits to a PE ................................................................. 12B-1. The functionally separate entity approach............................................................................. 12

B-2. Basic premise of the authorised OECD approach ..................................................................... 13B-3. Step one: hypothesising the PE as a separate and independent enterprise ................................ 14

(i) Functional and factual analysis .................................................................................................. 14(ii) Attribution of assets ................................................................................................................... 16

(iii) Attribution of risks .................................................................................................................... 16(iv) Attribution of free capital .......................................................................................................... 18

(a) Funding costs ............................................................................................................................. 19

(v) Recognition of dealings ............................................................................................................. 19B-4. Step two: determining the profits of the hypothesised separate and independent enterprise

based upon a comparability analysis ......................................................................................... 20

B-5.

Summary of the two-step analysis ............................................................................................. 21

B-6. Dependent agent PEs ................................................................................................................. 22

C. Interpretation of paragraph 1 of Article 7: determining the profits of an enterprise ....................... 22D. Interpretation of paragraph 2 of Article 7: determining the profits attributable to the permanent

establishment .................................................................................................................................. 23D-1. IntroductionArticle 7 and the arms length principle............................................................. 23D-2. First step: determining the activities and conditions of the hypothesised separate and

independent enterprise .............................................................................................................. 24(i) Functions: what are the activities of the PE? ............................................................................. 25

(ii) Risks attributed to the PE .......................................................................................................... 26(iii) Assets: drawing up a tax balance sheet for the PE under the authorised OECD approach.... 28

(a) Introduction ............................................................................................................................... 28

(b)

Tangible assets ........................................................................................................................... 28

(c) Intangibles ................................................................................................................................. 29

(1) Introduction ........................................................................................................................... 29(2) Guidance on applying the authorised OECD approach to intangible property ..................... 29

(3) Which part(s) of the enterprise is the economic owner of the intangible property ................ 30(iv) Attributing rights and obligations to the PE .............................................................................. 33(v) Capital: drawing up a tax balance sheet for the PE under the authorised OECD approach... 33

(a) Attributing creditworthiness to the PE ...................................................................................... 33(b) Capital attribution and funding the operations of the PE .......................................................... 34

(1) Introductionthe importance of free capital..................................................................... 34(2) Principles of the authorised OECD approach ........................................................................ 35

(3)

Determining the funding costs of the PE ............................................................................... 42


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(4) Determining the arms length price of treasury dealings....................................................... 44(5) The authorised OECD approach for adjusting interest expense ............................................ 45(6) Conclusion on capital attribution and funding costs.............................................................. 46

(vi) Recognition of dealings......................................................................................................... 46

(a) Introduction ............................................................................................................................... 46

(b) Recognition of dealings ............................................................................................................. 47D-3. Second step: determining the profits of the hypothesised separate and independent enterprise

based upon a comparability analysis ......................................................................................... 49(i) Introduction ............................................................................................................................... 49(ii) Applying transfer pricing methods to attribute profit ................................................................ 50

(iii) Comparability analysis .............................................................................................................. 51(iv) Application of second step of authorised OECD approach to commonly occurring dealings .. 52

(a) Change in the use of a tangible asset ......................................................................................... 52(b) Intangible property .................................................................................................................... 53

(1) Impact of intangible property on the profits to be attributed to the PE ................................. 53

(2)

Internal dealings relating to use of an intangible ................................................................... 54(c) Cost contribution arrangements ............................................................................................. 55

(d) Internal services ......................................................................................................................... 56(v) Treatment of expenses incurred before and after the period of the PEs existence................... 57

D-4. Documentation .......................................................................................................................... 58D-5. Dependent agent PEs ................................................................................................................. 58

(i) Introduction ............................................................................................................................... 58

(ii) The authorised OECD approach for dependent agent PEs ........................................................ 59(a) Practical illustration of the application of the authorised OECD approach - dependent sales

agents ........................................................................................................................................ 61(b) Administrative matters and documentation ............................................................................... 63

PART II: SPECIAL CONSIDERATIONS FOR APPLYING THE AUTHORISED OECD APPROACHTO PERMANENT ESTABLISHMENTS (PEs) OF BANKS ...................................................................... 64

A. Introduction ..................................................................................................................................... 64B. Functional and factual analysis of a traditional banking business .................................................. 65

B-1 Functions performed .................................................................................................................. 65i) Functions involved in creating a new financial asset - a loan ................................................... 65ii) Functions involved in managing an existing financial asset - a loan ......................................... 65iii) Key entrepreneurial risk-taking functions involved in creating and subsequently managing a

loan ............................................................................................................................................ 66iv) Support, middle or back office functions .................................................................................. 67

B-2 Assets used ................................................................................................................................ 67

B-3 Risks assumed ........................................................................................................................... 68

B-4 Capital and funding ................................................................................................................... 69

i) Introduction ............................................................................................................................... 69ii) Creditworthiness ........................................................................................................................ 70iii) Capital adequacy requirements .................................................................................................. 71

iv) Other regulatory requirements ................................................................................................... 72v) Significance of free capital.................................................................................................... 73

C. Banks operating through subsidiaries ............................................................................................. 73D. Applying the authorised OECD approach to banks operating through a PE .................................. 74D-1 First step: determining the activities and conditions of the hypothesised separate and

independent enterprise .............................................................................................................. 78i) Attributing functions, assets and risks to the PE ....................................................................... 79

ii)

Attributing creditworthiness to the PE ...................................................................................... 82


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iii) Attributing capital to the PE ...................................................................................................... 83a) Attributing free capital to the PE....................................................................................... 83b) Attributing capital other than free capital to aPEthe determination of funding costs. .. 90

c)

Conclusion on attributing capital to the PE ........................................................................... 91

iv) The authorised OECD approach for adjusting interest expense ................................................ 92

(v) Recognition of dealings ............................................................................................................. 93D-2 Second step: determining the profits of the hypothesised separate and independent enterprise

based on a comparability analysis ............................................................................................. 95i) Applying transfer pricing methods to attribute profit ................................................................ 95ii) Traditional banking business ..................................................................................................... 97

a) Sales and support ................................................................................................................... 98b) Treasury functions and internal movement of funds/interest dealings.............................. 98

c) Internal guarantees ............................................................................................................... 100d) Sales/trading functions ........................................................................................................ 100e) Risk management functions and transfers of risk ................................................................ 100

f)

Transfers of existing financial assets ................................................................................... 102g) Support, middle or back office ............................................................................................ 103

iii) Agency or conduit functions.................................................................................................... 104

ANNEX - BIS RATIO APPROACHES ..................................................................................................... 107

PART III: SPECIAL CONSIDERATIONS FOR APPLYING THE AUTHORISED OECD APPROACHTO PERMANENT ESTABLISHMENTS (PES) OF ENTERPRISES CARRYING ON GLOBALTRADING OF FINANCIAL INSTRUMENTS.......................................................................................... 108

A. Introduction ................................................................................................................................... 108B. Definition, functional and factual analysis of an enterprise carrying on global trading ............... 109

B-1 Definition of global trading of financial instruments .............................................................. 110

B-2 Factual situation ....................................................................................................................... 110i)

Commercial environment ........................................................................................................ 110

a) Institutions ........................................................................................................................... 111b) Products ............................................................................................................................... 111c) Technology available ........................................................................................................... 112

ii) Business strategy ..................................................................................................................... 112iii) Business organisation .............................................................................................................. 113

a) Integrated Trading ............................................................................................................... 113b) Centralised Product Management ........................................................................................ 114

c) Separate Enterprise Trading ................................................................................................ 115d) Dynamic and flexible nature of global trading .................................................................... 115

B-3 Functional analysis .................................................................................................................. 116

i)

Functions performed ................................................................................................................ 116a) Sales and marketing functions ............................................................................................. 116

b) Trading and day-to-day risk management function ............................................................. 118c) Treasury ............................................................................................................................... 120d) Support, back office, middle office ..................................................................................... 120

ii) Assets used .............................................................................................................................. 125iii) Risks assumed ......................................................................................................................... 125

a) Credit risk ............................................................................................................................ 126b) Market risk ........................................................................................................................... 127c) Operational risks .................................................................................................................. 128d) Other risks ........................................................................................................................... 129

iv) Capital and funding ................................................................................................................. 129

a)

Introduction ......................................................................................................................... 129


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b) Creditworthiness .................................................................................................................. 129c) Capital adequacy requirements ............................................................................................ 130d) Other regulatory requirements ............................................................................................. 130

e)

Significance of free capital.............................................................................................. 130

C. The application of the arms length principle to global trading conducted between associatedenterprises .................................................................................................................................... 130

C - 1 General application and methods ............................................................................................ 131

i) Applying the arms length principle........................................................................................ 131ii) Transfer pricing methods ......................................................................................................... 131

C - 2 Analysis of global trading transactions.................................................................................... 133

i) Sales and marketing ................................................................................................................. 133ii) Trading and risk management ................................................................................................. 135

iii) Support, middle or back office ................................................................................................ 137iv) Role of capital .......................................................................................................................... 138

C - 3 Transactional profit methods ................................................................................................... 142

i)

Types of transactional profit methods to be used .................................................................... 142ii) Application of profit split methods to global trading .............................................................. 144

a) Identification of the functions to be rewarded by a profit share .......................................... 144b) Measuring the relative contribution of functions - weighting of the factors ....................... 145c) Determining the relative contribution of each location - measurement of factors .............. 146d) Assets used and risks assumed ............................................................................................ 148

D. Applying the authorised OECD approach to global trading enterprises operating through a PE . 149

D-1 First step: determining the activities and conditions of the hypothesised separate andindependent enterprise ............................................................................................................ 149

i) Attributing functions, assets and risks to the PE ..................................................................... 150a) Assets used and conditions of use ....................................................................................... 151b) Risks assumed ..................................................................................................................... 151

c)

Consequences of attributing assets and risks to a PE .......................................................... 153

ii) Attributing creditworthiness to the PE .................................................................................... 155iii) Attributing capital to the PE .................................................................................................... 156

a) Attributing free capital to the PE..................................................................................... 156Stage 1 - Measuring the risks attributed to the PE ........................................................................ 156

Stage 2Determining the free capital needed to support the risks attributed to the PE........... 157b) Attributing capital other than free capital to the PE - determining the funding costs of thePE 157

iv) Adjusting the funding costs claimed by a PE .......................................................................... 158v) Recognition of dealings ........................................................................................................... 158

D-2 Second step: determining the profits of the hypothesised separate and independent enterprisebased on a comparability analysis ........................................................................................... 159

i)

Applying transfer pricing methods to dealings within a single enterprise .............................. 160

ii) Global trading functions ......................................................................................................... 161a) Analysis of trading/risk management models...................................................................... 161

b) Attributing assets and risks to more than one part of the enterprise .................................... 162c) Risk management functions and internal transfers of risk ................................................... 162

d) Treasury functions and internal movement of funds ........................................................... 164e) Support services ................................................................................................................... 164

D-3 Dependent agent PEs ............................................................................................................... 165

PART IV: SPECIAL CONSIDERATIONS FOR APPLYING THE AUTHORISED OECD APPROACHTO PERMANENT ESTABLISHMENTS OF INSURANCE COMPANIES ............................................ 169

A.

Introduction ................................................................................................................................... 169


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B. Functional and factual analysis of an insurance business ............................................................. 169B-1. General overview ..................................................................................................................... 169

i) Income and capital (surplus) in the insurance business ........................................................... 171

ii)

Role of reinsurance .................................................................................................................. 172

B-2. Functions performed ................................................................................................................ 173

i) Functions of an insurance business ......................................................................................... 174a) Product management/product development ........................................................................ 174

b) Sales and marketing ............................................................................................................. 174c) Underwriting insured risk .................................................................................................... 176d) Risk management and reinsurance ...................................................................................... 177

e) Contract and claims management ........................................................................................ 178f) Asset management ............................................................................................................... 179

g) Support processes ................................................................................................................ 179ii) Analysis of the functions performed ....................................................................................... 180

B-3. Assets used .............................................................................................................................. 180

B-4.

Risks assumed ......................................................................................................................... 181i) Types of risk ............................................................................................................................ 181

ii) Surplus requirements/solvency margins .................................................................................. 183iii) Other regulatory requirements ................................................................................................. 184

B-5. Dependent agent PEs ............................................................................................................... 184C. Applying the authorised OECD approach to insurance companies operating through PEs .......... 185C-1. First step: determining the activities and conditions of the hypothesised separate and

independent enterprise ............................................................................................................ 192i) Attributing functions, assets and risks to the PE ..................................................................... 192

a) General ................................................................................................................................ 192b) Split functions ...................................................................................................................... 195c) Indirect benefits provided by sales PEs ............................................................................... 195

d)

Dependent agent PEs ........................................................................................................... 196

ii) Attributing creditworthiness/solvency margin to the PE ......................................................... 198iii) Attributing investment income/assets to the PE ...................................................................... 198

a) General overview ................................................................................................................. 198b) Capital allocation approach ................................................................................................. 200

c) Thin capitalisation/adjusted regulatory minimum approach ............................................... 205d) Safe harbourquasi thin capitalisation/regulatory minimum approach ............................. 205

e) Conclusion on attributing investment assets to the PE ........................................................ 206f) Determining the investment yield from investment assets attributed to a PE ..................... 207

iv) External reinsurance ................................................................................................................ 209

v) Recognition of dealings ........................................................................................................... 209vi) Internal reinsurance ................................................................................................................. 210

C-2.

Second step: determining the profits of the hypothetical separate and independent enterprise(based on a comparability analysis) ........................................................................................ 210

i) Applying transfer pricing methods to attribute profit .............................................................. 211

ii) Rewarding specific insurance functions .................................................................................. 212a) Underwriting insured risk .................................................................................................... 212

b) Risk management and reinsurance ...................................................................................... 213c) Asset management ............................................................................................................... 214d) Product management/product development ........................................................................ 214

e) Sales and marketing ............................................................................................................. 214f) Support functions ................................................................................................................. 215

D. Article 7(4)coordination with Article 10(4), etc. ...................................................................... 217


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APPENDIX ................................................................................................................................................. 219

ADDENDUM: ............................................................................................................................................. 238


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PREFACE

1. The permanent establishment (PE) concept has a history as long as the history of double taxationconventions. Currently, the international tax principles for attributing profits to a PE are provided inArticle 7 of the OECD Model Tax Convention on Income and on Capital.

2. The principles underlying Article 7, and in particular paragraph 2 of the Article, have a long

history. When the OECD first examined what criteria should be used in attributing profits to a permanentestablishment, this question had previously been addressed in a large number of tax conventions and in

various models developed by the League of Nations. The separate entity and arms length principles, onwhich paragraph 2 is based, had already been incorporated in these conventions and models and the OECDconsidered that it was sufficient to restate these principles with some slight amendments and modificationsfor the main purpose of clarification.

3. Practical experience has shown, however, that there was considerable variation in theinterpretation of these general principles and of other provisions of earlier versions of Article 7. This lackof a common interpretation created problems of double taxation and non-taxation. Over the years, theCommittee on Fiscal Affairs spent considerable time and effort trying to ensure a more consistentinterpretation and application of the rules of the Article. Minor changes to the wording of the Article and anumber of changes to the Commentary were made when the 1977 Model Tax Convention was adopted. Areport that addressed that question in the specific case of banks was published in 1984. In 1987, noting

that the determination of profits attributable to a permanent establishment could give rise to someuncertainty, the Committee undertook a review of the question which led to the adoption, in 1993, of thereport entitled Attribution of Income to Permanent Establishments

1 and to subsequent changes to the

Commentary.

4. Despite that work, the practices of OECD and non-OECD countries regarding the attribution ofprofits to permanent establishments and these countries interpretation of Article 7 continued to varyconsiderably. The Committee acknowledged the need to provide more certainty to taxpayers: in its reportTransfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (the Guidelines),adopted in 1995, it indicated that further work would address the application of the arms length principleto permanent establishments. That work resulted, in 2008, in a report entitled Attribution of Profits toPermanent Establishments (the 2008 Report). The approach developed in the 2008 Report was notconstrained by either the original intent or by the historical practice and interpretation of Article 7. Instead,the focus was on formulating the most preferable approach to attributing profits to a permanentestablishment under Article 7 given modern-day multinational operations and trade.

5. When it approved the 2008 Report, the Committee considered that the guidance included thereinrepresented a better approach to attributing profits to permanent establishments than had previously beenavailable. It also recognised, however, that there were differences between some of the conclusions of the

Report and the interpretation of Article 7 previously given in the Commentary. For that reason, in 2008 theCommittee decided to amend the Commentary on Article 7 to incorporate a number of conclusions of the

1

Reproduced in Volume II of the loose-leaf version of the OECD Model Tax Convention at page R(13)-1.


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2008 Report that did not conflict with the previous version of that Commentary, which prescribed specificapproaches in some areas and left considerable leeway in others.

6.

At the same time, the Committee decided that a new version of Article 7 should be included inthe next update to the Model Tax Convention to allow the full incorporation of these principles. The newArticle 7 was included in the 2010 update to the OECD Model Tax Convention.

7. The 2008 Report will serve as background guidance to the 2008 revised Commentarysinterpretation of the pre-2010 Article 7 for as long as bilateral tax treaties that are based on the text of that

version of Article 7 are in force. However, because the 2008 Report included a number of references to thetext of the pre-2010 Article 7, and because the Committee revised the text of Article 7 in the 2010 updateto the Model Tax Convention, the Committee believed it would be advisable to prepare a modified version

of the 2008 Report which would delete obsolete references to the text of the pre-2010 Article 7 and whichwould align the Reports wording with the wording of the new Article 7, thus making the modified Report

available as a future reference for guidance on the interpretation of future treaties based on the new

Article 7. The Committee decided to prepare this modified version of the 2008 Report for publicationsimultaneously with the 2010 update to the Model Tax Convention.

8. This Report does not change the conclusions of the 2008 Report and has been prepared simply toavoid difficulties that might arise in trying to use the 2008 Report for the interpretation of the new

Article 7.

9. Several commentators on draft versions of the 2008 Report expressed concerns about whether theReport could be interpreted to affect the legal threshold for determining the existence of a PE under Article5. Whilst the draft Report stated several times that it was not addressing the Article 5 PE threshold, thisfinal version reiterates that point and stresses that this Report is not intended to affect in any way the

currently existing standards under Article 5 for determining the existence of a PE.

10. Finally, this Report has been based upon the principle of applying by analogy the guidance foundin the Guidelines for purposes of determining the profits attributable to a PE. To the extent the Guidelinesare modified in the future, this Report should be applied by taking into account the guidance in theGuidelines as so modified from time to time.


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2010 REPORT ON THE ATTRIBUTION OF PROFITS TO PERMANENT ESTABLISHMENTS


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PART I: GENERAL CONSIDERATIONS

A. Introduction

1. The permanent establishment (PE) concept has a history as long as the history of double taxationconventions. At the multilateral level, the wording of the various draft conventions has evolved from theLeague of Nations drafts of 1927, 1933, 1943 and 1946 through to the Draft Double Taxation Conventionon Income and on Capital in 1963 and its successor in 1977, the OECD Model Double TaxationConvention on Income and on Capital. Currently, the international tax principles for attributing profits to aPE are provided in Article 7 of the OECD Model Tax Convention on Income and on Capital (OECDModel Tax Convention), which forms the basis of the extensive network of bilateral income tax treatiesbetween OECD member countries and between many OECD member and non-member countries. Theseprinciples are, to a certain extent, also incorporated in the Model United Nations Double TaxationConvention between Developed and Developing Nations.

2. Practical experience has shown, however, that there was considerable variation in the

interpretation of these general principles and of the provisions of earlier versions of Article 7. This lack ofa common interpretation created problems of double taxation and non-taxation. Over the years, theCommittee on Fiscal Affairs spent considerable time and effort trying to ensure a more consistentinterpretation and application of the rules of the Article. Minor changes to the wording of the Article and anumber of changes to the Commentary were made when the 1977 Model Tax Convention was adopted. A

report that addressed that question in the specific case of banks was published in 1984. In 1987, notingthat the determination of profits attributable to a permanent establishment could give rise to someuncertainty, the Committee undertook a review of the question which led to the adoption, in 1993, of thereport entitled Attribution of Income to Permanent Establishments

1 and to subsequent changes to the

Commentary.

3. Despite that work, the practices of OECD and non-OECD countries regarding the attribution ofprofits to permanent establishments and these countries interpretation of Article 7 continued to vary

considerably. The Committee acknowledged the need to provide more certainty to taxpayers: in its reportTransfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (the Guidelines),adopted in 1995, it indicated that further work would address the application of the arms length principleto permanent establishments. That work resulted, in 2008, in a report entitled Attribution of Profits toPermanent Establishments (the 2008 Report).2 The approach developed in the 2008 Report (i.e. the

authorised OECD approach or AOA) was not constrained by either the original intent or by thehistorical practice and interpretation of Article 7. Instead, the focus was on formulating the most preferable

approach to attributing profits to a permanent establishment under Article 7 given modern-daymultinational operations and trade. The basis for the development of the AOA was to examine how far the

approach of treating a PE as a hypothetical separate and independent enterprise could be taken. The testingand development of the AOA examined how the guidance in the Guidelines could be applied to attributeprofits to a PE of a banking, global trading or insurance enterprise in accordance with the arms length

principle of Article 7. In particular, the examination focussed on the extent to which modifications, if any,would be needed in order to take into account differences between a PE and a legally distinct and separateenterprise. It should be noted that under the authorised OECD approach, the same principles should beapplied to attribute losses as to attribute profits. References to attributing profits should therefore betaken as applying equally to attributing losses.

1 Reproduced in Volume II of the loose-leaf version of the OECD Model Tax Convention at page R(13)-1.

2

Available athttp://www.oecd.org/dataoecd/20/36/41031455.pdf.
http://www.oecd.org/dataoecd/20/36/41031455.pdfhttp://www.oecd.org/dataoecd/20/36/41031455.pdfhttp://www.oecd.org/dataoecd/20/36/41031455.pdfhttp://www.oecd.org/dataoecd/20/36/41031455.pdf


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4. When it approved the 2008 Report, the Committee considered that the guidance included thereinrepresented a better approach to attributing profits to permanent establishments than had previously been

available. It also recognised, however, that there were differences between some of the conclusions of the

Report and the interpretation of Article 7 previously given in the Commentary. For that reason, in 2008 theCommittee decided to amend the Commentary on Article 7 to incorporate a number of conclusions of the2008 Report that did not conflict with the previous version of that Commentary, which prescribed specificapproaches in some areas and left considerable leeway in others.

5. At the same time, the Committee decided that a new version of Article 7 should be included inthe 2010 update to the Model Tax Convention to allow the full incorporation of these principles. TheCommittee also considered that it would be necessary to revise the 2008 Report in order to align itswording with the wording of the new Article 7 and to delete obsolete references to the pre-2010 version ofArticle 7. This revised Report, which has been prepared for publication in conjunction with the release ofthe 2010 update to the Model Tax Convention, does not change the conclusions of the 2008 Report and hasbeen prepared simply to avoid difficulties that might arise in trying to use the 2008 Report for the

interpretation of the new Article 7.

6. This Report focuses on the interpretation and application of Article 7 as included in the 2010OECD Model Tax Convention. The question of whether the current interpretation of other relevant Articlesof the OECD Model Tax Convention (such as Articles 5, 13 and 23) produces a desirable result is beyondthe scope of this Report. In particular, the Report does not address the question of whether a PE exists in

respect of any particular business activity, nor is it intended to affect in any way the currently existingstandards under Article 5 for determining the existence of a PE. The definition of a PE is described by

Article 5 of the OECD Model Tax Convention and readers are referred to its Commentary for furtherinformation (including the changes made in the January 2003 and July 2005 updates).

7. The rest of Part I of this Report provides general background and further information about the

authorised OECD approach in relation to Article 7. Section B provides a summary of the basic principlesof the authorised OECD approach. Section C analyses Article 7, paragraph 1, which provides the central

rule concerning the allocation of taxing rights over the business profits of an enterprise3 between the

country in which the PE is situated (the host country) and the country of residence of the enterprise (thehome country). Section D analyses Article 7, paragraph 2, which provides the central rule concerning theattribution of the business profits of an enterprise to a PE and the statement of the arms length principle inthe context of PEs. The authorised OECD approach is applicable to all types of PEs, but there is a separate

Section examining the special considerations applicable to PEs existing under Article 5(5) of the OECDModel Tax Convention (i.e.so-called dependent agent PEs; seeSection D-5).

B. Statement of principles used to attribute profits to a PE

B-1. The functionally separate entity approach

8. The authorised OECD approach is that the profits to be attributed to a PE are the profits that the

PE would have earned at arms length, in particular in its dealings with other parts of the enterprise, if itwere a separate and independent enterprise engaged in the same or similar activities under the same or

similar conditions, taking into account the functions performed, assets used and risks assumed by theenterprise through the permanent establishment and through the other parts of the enterprise. The phraseprofits of an enterprise in Article 7(1) should not be interpreted as affecting the determination of thequantum of the profits that are to be attributed to the PE, other than providing specific confirmation that

3 For the purposes of this Report, references to the enterprise or to the enterprise as a whole should be

interpreted as describing the juridical entity.


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the right to tax does not extend to profits that the enterprise may derive from that State otherwise thanthrough the permanent establishment (i.e.there should be no force of attraction principle). Profits may

therefore be attributed to a permanent establishment even though the enterprise as a whole has never made

profits. Conversely, Article 7 may result in no profits being attributed to a permanent establishment eventhough the enterprise as a whole has made profits.

B-2. Basic premise of the authorised OECD approach

9. The authorised OECD approach does not dictate the specifics or mechanics of domestic law, butonly sets a limit on the amount of attributable profit that may be taxed in the host country of the PE.Accordingly, the profits to be attributed to a PE are the profits that the PE would have earned at armslength, in particular in its dealings with other parts of the enterprise, if it were a separate and independententerprise engaged in the same or similar activities under the same or similar conditions, taking intoaccount the functions performed, assets used and risks assumed by the enterprise through the permanentestablishment and through the other parts of the enterprise, determined by applying the Guidelines by

analogy. This is in line with one of the fundamental rationales behind the PE concept, which is to allow,within certain limits, the taxation of non-resident enterprises in respect of their activities (having regards toassets used and risks assumed) in the source jurisdiction. In addition, the authorised OECD approach is notdesigned to prevent the application of any domestic legislation aimed at preventing abuse of tax losses ortax credits by shifting the location of assets or risks. Finally, where their domestic law does not recogniseloss transactions in certain circumstances between associated enterprises, countries may consider that the

authorised OECD approach would not require the recognition of a loss on an analogous dealing indetermining the profits of a PE.

10. The interpretation of Article 7(2) under the authorised OECD approach is that a two-step analysisis required. First, a functional and factual analysis, conducted in accordance with the guidance found in theGuidelines, must be performed in order to hypothesise appropriately the PE and the remainder of the

enterprise (or a segment or segments thereof) as if they were associated enterprises, each undertakingfunctions, owning and/or using assets, assuming risks, and entering into dealings with each other and

transactions with other related and unrelated enterprises. Under the first step, the functional and factualanalysis must identify the economically significant activities and responsibilities undertaken by the PE.This analysis should, to the extent relevant, consider the PEs activities and responsibilities in the contextof the activities and responsibilities undertaken by the enterprise as a whole, particularly those parts of theenterprise that engage in dealings with the PE. Under the second step, the remuneration of any dealings

between the hypothesised enterprises is determined by applying by analogy the Article 9 transfer pricingtools (as articulated in the Guidelines for separate enterprises) by reference to the functions performed,

assets used and risk assumed by the hypothesised enterprises. The result of these two steps will be to allowthe calculation of the profits (or losses) of the PE from all its activities, including transactions with otherunrelated enterprises, transactions with related enterprises (with direct application of the Guidelines) and

dealings with other parts of the enterprise (under step 2 of the authorised OECD approach).

11. The hypothesis by which a PE is treated as a functionally separate and independent enterprise is a

mere fiction necessary for purposes of determining the business profits of this part of the enterprise underArticle 7. The authorised OECD approach should not be viewed as implying that the PE must be treated asa separate enterprise entering into dealings with the rest of the enterprise of which it is a part for purposesof any other provisions of the Convention.

12. These general principles are further discussed under Section D.


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B-3. Step one: hypothesising the PE as a separate and independent enterprise

See Section D-2 for a more detailed discussion of step one of the authorised OECD approach.

(i) Functional and factual analysis

13. The functional and factual analysis under step two of the authorised OECD approach performsthe same role in the comparability analysis in a PE context under Article 7 as it does in situations involvingassociated enterprises under Article 9. Notwithstanding this similarity, the functional and factual analysishas further applications under step one of the authorised OECD approach for purposes of hypothesising thePE as a separate and independent enterprise engaged in the same or similar activities under the same orsimilar conditions, taking into account the functions performed, assets used and risks assumed by theenterprise through the permanent establishment and through the other parts of the enterprise.. Thesefurther applications are necessary because a PE is not in fact legally separate from the rest of the enterpriseof which it is a part in the way that an associated enterprise is legally separate from other enterprises within

the same MNE group. This factual, legal difference gives rise to issues in a PE context that are not presentin an associated enterprises context.

14. As between unrelated enterprises, the determination of which enterprise owns assets and whichbears risk is determined by legally binding contracts or other ascertainable legal arrangements. Similarconsiderations apply to associated enterprises providing those contracts or legal arrangements reflect theunderlying reality and meet the criteria in Chapter I of the Guidelines. Similarly, in a separate enterprisecontext no issues generally arise over determining which enterprise possesses the capital. The factual, legal

position in a PE context, on the other hand, is that there is no single part of an enterprise which legallyowns the assets, assumes the risks, possesses the capital or contracts with separate enterprises. The legalposition is thus unhelpful in a PE context, since Article 7(2) requires the PE to be treated as if it were aseparate and independent enterprise, performing its own functions, assuming its own risk and owning or

using assets on its own. It is therefore necessary under the arms length principle of Article 7 to develop amechanism for attributing risks, economic ownership of assets

4and capital to the hypothetically separate

and independent PE, for associating with the hypothetically separate and independent PE the rights and

obligations arising out of transactions between separate enterprises and the enterprise of which the PE is apart and for recognising and determining the nature of the dealings (i.e.the intra-enterprise equivalentsof separate enterprise transactions) between the hypothetically separate PE and other parts of the enterpriseof which the PE is a part.

15. As it is not possible to use a legal analysis as the required mechanism, another solution must be

sought. After careful consideration, the OECD decided that a functional analysis should be used, as thisconcept underpins the application of the arms length principle under Article 9 and there is alreadyconsiderable guidance on how to conduct this analysis in the Guidelines. However, in order to address the

issues created by the fact that legally the assets, risks, capital, and rights and obligations arising out oftransactions with separate enterprises belong to the enterprise as a whole rather than to any one part of the

enterprise and that there is no legal transaction between different parts of a single entity, it provednecessary to supplement the functional analysis of Article 9. Accordingly, the authorised OECD approach

attributes to the PE those risks for which the significant functions relevant to the assumption and/ormanagement (subsequent to the transfer) of risks are performed by people in the PE and also attributes to

4 As used in this Report, the economic ownership of assets in the Article 7 context means the equivalent of

ownership for income tax purposes by a separate enterprise, with the attendant benefits and burdens (e.g.

the right to the income attributable to the ownership of the asset, such as royalties; the right to depreciate adepreciable asset; and the potential exposure to gains or losses from the appreciation or depreciation of the

asset).


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the PE economic ownership of assets for which the significant functions relevant to the economicownership of assets5 are performed by people in the PE. The authorised OECD approach also sets forth

approaches to attribute capital, including free capital (i.e. funding that does not give rise to a tax

deductible return in the nature of interest), to the PE to support the functions it has performed, the risksassumed and assets attributed to it, as well as criteria for the recognition and characterisation of dealingsbetween the PE and other parts of the enterprise to which it belongs.

16. The significant people functions relevant to the assumption of risk and the significant peoplefunctions relevant to the economic ownership of assets will vary from business sector to business sector(e.g. such functions are unlikely to be the same for an oil extraction company and a bank) and fromenterprise to enterprise within sectors (e.g.not all oil extraction companies or all banks are the same). Itshould be stressed that a particular enterprise may have one or more significant people functions relevantto the assumption of risk and to the economic ownership of assets, each of which has to be taken intoaccount in the above analysis. The extent of the overlap between the significant people functions relevantto the assumption of risk and the significant people functions relevant to the economic ownership of assets

will also vary from business sector to business sector and from enterprise to enterprise within sectors. Forexample, in the case of financial assets of financial enterprises, the same significant people functions will

generally be relevant both to the assumption of risk and to the economic ownership of those assets. Thisspecial category of asset is discussed in Part II (bank loans), Part III (financial products of enterprisesengaged in global trading), and Part IV (the assets representing the investment of reserves and surpluses

derived from insurance business). Because of the special relationship between risks and financial assets inthose specific sectors, the authorised OECD approach uses the key entrepreneurial risk-taking function

(KERT function) terminology in describing the functions relevant to the attribution of both risks andassets, but that terminology is not used for other sectors. Outside the financial enterprise sector, risks maybe less intimately linked with assets, so that there may be less overlap between the significant peoplefunctions relevant to the assumption of risk and those relevant to the economic ownership of the assets.

17. Whilst it is important under the first step of the authorised OECD approach to identify thesignificant people functions relevant to the assumption of risk and those relevant to the economicownership of assets, it is also important under the first step to analyse other functions performed by the PE.This is because the profits (or losses) of the PE will be based upon all its activities, including transactionswith other unrelated enterprises, transactions with related enterprises (with direct application of theGuidelines) and dealings with other parts of the enterprise (under step 2 of the authorised OECDapproach). Under the second step of the authorised OECD approach the Guidelines are applied by analogyto the PEs dealings with other parts of the enterprise to ensure that the performance of all of its functions

in relation to these dealings is rewarded on an arms length basis. The dealings of the hypothesisedseparate and independent enterprise will be compared to transactions of independent enterprisesperforming the same or similar functions, using the same or similar assets, assuming the same or similarrisks and possessing the same or similar economically relevant characteristics. The transfer pricing

methods set out in the Guidelines are applied to determine an arms length price for the dealings. It shouldbe noted that there is no presumption that functions other than significant people functions relevant to theassumption of risk and significant people functions relevant to the economic ownership of assets are bynature of low value. This will be determined by the functional and comparability analyses based on theparticular facts and circumstances.

5 Note that the exercise of identifying significant people functions relevant to the assumption of risks and

significant people functions relevant to the economic ownership of assets is relevant for purposes of

attributing initial assumption of risks and economic ownership of assets to particular parts of an enterprise

under step one. However, it does not limit the need under step two of the authorised OECD approach toensure that all functions performed by the PE are remunerated at arms length, nor does it in any way affect

the threshold for determining the existence of a PE under Article 5.


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(ii ) Attr ibuti on of assets

18. Under the authorised OECD approach it is necessary to hypothesise the PE as if it were a

separate and independent enterprise. This exercise entails, inter alia, the determination of which assets areeconomically owned and/or used by the PE and in what capacity. The factual position is that no one partof an enterprise owns assets; they belong to the enterprise as a whole. It is therefore necessary under thefirst step of the authorised OECD approach to find a means of attributing economic ownership. Onepossible approach would be to allow taxpayers to simply nominate which part of the enterpriseeconomically owns the assets. This approach, though simple and administrable, would potentially providean incentive for taxpayers to attribute economic ownership of assets in ways that would lead toinappropriate allocations of profit and thus has been rejected as not in accordance with sound tax policy.Instead there is a broad consensus that assets generally are to be attributed to the part of the enterprisewhich performs the significant people functions relevant to the determination of economic ownership ofassets. The functional and factual analysis will examine all the facts and circumstances to determine theextent to which the assets of the enterprise are used in the functions performed by the PE and the

conditions under which the assets are used, including the factors to be taken into account to determinewhich part of the enterprise is regarded as the economic owner of the assets actually owned by the

enterprise. The attribution of economic ownership of assets will have consequences for both the attributionof capital and interest-bearing debt and the attribution of profit to the PE.

19. The consequences of attributing economic ownership of assets under the first step for

determining profits under the second step may depend upon the type of asset and the type of business inwhich the asset is used. For example, economically owning a tangible asset used in a manufacturing

process does not necessarily, of itself, attribute to the economic owner of the asset the income from sellinggoods produced by using the asset. Attributing economic ownership of financial assets, on the other hand,attributes the income and expenses associated with holding those assets or lending them out or selling them

to third parties.

20. In the case of financial assets of financial enterprises, the creation and management of such assets

(and their attendant risks) is itself the significant people function relevant to determining the initialeconomic ownership of the assets, so the initial attribution of economic ownership of those assets to thepart of the enterprise performing that function has primary importance not only for determiningcharacterisation of the separate and independent enterprise under step one, but also to the attribution ofprofits under step two, since the attribution of income-generating assets also effectively determines which

part of the enterprise receives the income and expenses associated with those assets. This special categoryof asset is discussed in Part II (bank loans), Part III (financial products of enterprises engaged in global

trading) and Part IV (the assets representing the investment of reserves and surpluses derived frominsurance business).

(ii i) Attr ibution of ri sks

21. The functional and factual analysis will initially attribute to the PE any risks inherent in, orcreated by, the PEs own significant people functions relevant to the assumption of risks and take into

account any subsequent dealings or transactions related to the subsequent transfer of risks or to the transferof the management of those risks to different parts of the enterprise or to other enterprises. The term riskassumption refers to the initial assumption of risk but it is not necessary that the same part of theenterprise subsequently be treated as having retained the risk assumed. Being attributed risks in theArticle 7 context means the equivalent of bearing risks for income tax purposes by a separate enterprise,with the attendant benefits and burdens, in particular the potential exposure to gains or losses from therealisation or non-realisation of said risks. This raises the question of whether, and if so, in whatcircumstances, dealings resulting in the transfers of risks should be recognised within a single entity so that


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risks initially assumed by one part of the enterprise will be treated as subsequently borne by another part ofthe enterprise. The circumstances in which it is possible to recognise such a transfer are discussed in

Section D-2(vi).

22. Depending on the nature of the enterprises business, some risks will be related to the potentialloss in value of assets attributed to the PE while some other risks will be created by activities and notnecessarily linked to the simple existence of the assets (e.g.liability risks). The significant people functionsrelevant to the assumption of risks are those which require active decision-making with regard to theacceptance and/or management (subsequent to the transfer) of those risks. The extent of thedecision-making will depend on the nature of the risk involved.

23. By way of illustration, take the example of an enterprise which consists of a head office in onejurisdiction and one PE in another jurisdiction. Assume products are manufactured at the head officelocation and delivered to the PE premises for sale to customers in the PE jurisdiction. Assume themanufacturing functions are performed by employees of the head office and the sales are concluded by

employees of the PE. A functional and factual analysis is performed and concludes that in this particularinstance this particular PE is acting as a distributor of the head office products. In this example it might benecessary to attribute, among others, excess inventory risk and credit risk.

24. Under the authorised OECD approach, the attribution of these risks within the single enterprisewill follow from the identification of the significant people functions relevant to the initial acceptance andsubsequent management of those risks:

The excess inventory risk is likely to be regarded as initially assumed by that part of the enterprisewhich makes the active decisions related to inventory levels. Depending on the circumstances of thecase, this may be either the head office or the PE.

The credit risk is likely to be regarded as initially assumed by that part of the enterprise which decidesto conclude a sale to a particular customer after having reviewed the creditworthiness of this customer.A question may arise however where a review of the creditworthiness of each customer is performedby one part of the enterprise before a sale is concluded by another part of the enterprise. In such a case,the functional and factual analysis would have to examine whether the people in charge of reviewingthe customers creditworthiness are in effect the ones making a decision that leads to the assumption ofcredit risk, or if they act as a support function for the PE which ultimately makes the decision ofwhether or not to sell to a particular customer.

25. Note that the fact that general parameters for inventory levels or credit risks might potentially beset by another part of the enterprise would not change the assumption of the risk, as the significant peoplefunctions relevant to the assumption of risks are those which involve active decision-making.

26. The attribution and measurement of risk is an important part of the functional and factual analysissince the presence of risk affects both the attribution of capital under step one of the authorised OECDapproach and the attribution of profits to the PE under the second step. Under step one of the authorisedOECD approach, since capital follows risks, the part of the enterprise that performs the significant people

functions relevant to the assumption of risks (or that performs the significant people functions relevant totaking over and managing a risk initially assumed by another part of the enterprise) would be attributed thecapital necessary to support these risks. Under the second step of the authorised OECD approach, theselection and application of a transfer pricing method will take into account risks assumed by the PE andby other parts of the enterprise it has dealings with.


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27. The attribution of risk is particularly important in the financial sector where it has a substantialimpact on the attribution of both capital and income and expenses to the PE, but it can also be important in

other businesses. The financial sector, because of the nature of its business, has very sophisticated risk

measurement tools. Outside the financial sector it will still be necessaryalthough often more difficult

to measure risk.

(iv) Attr ibution of fr ee capital

28. The functional and factual analysis will attribute free capita l (i.e. funding that does not giverise to a tax deductible return in the nature of interest) to the PE for tax purposes, to ensure an arms lengthattribution of profits to the PE. The starting point for the attribution of capital is that under the arms lengthprinciple a PE should have sufficient capital to support the functions it undertakes, the assets iteconomically owns and the risks it assumes. In the financial sector regulations stipulate minimum levels ofregulatory capital to provide a cushion in the event that some of the risks inherent in the businesscrystallise into financial loss. Capital provides a similar cushion against crystallisation of risk in

non-financial sectors.

29. A key distinction between a separate legal enterprise and a PE is that one legal enterprise canenter into a legally binding agreement to guarantee all the risks assumed as a result of the functionsperformed by another legal enterprise. For such a guarantee to have substance, the free capital needed tosupport the risks assumed would reside in a different legal enterprise from that in which the transactionsgiving rise to the risks are booked. In contrast one of the key factual conditions of an enterprise tradingthrough a PE is that the free capital and risks are not segregated from each other within a single legalenterprise. To attempt to do so for tax purposes (i.e.to treat one part of an enterprise as able to guarantee arisk assumed by another part of the enterprise) would contradict the factual situation and would not beconsistent with the authorised OECD approach. Capital needed to support risks must be regarded asfollowing the risks. In other words, capital needed to support risks is to be attributed to a PE by reference

to the risks attributed to it and not the other way round.

30. The attribution of free capital should be carried out in accordance with the arms lengthprinciple to ensure that a fair and appropriate amount of profits is allocated to the PE. The purpose of theattribution is to inform the attribution of profits to the PE under Article 7(2). The Report describes anumber of different possible approaches for applying that principle in practice, recognising that theattribution of free capital to a PE is not an exact science, and that any particular facts and circumstances

are likely to give rise to a range of arms length results for the free capital attributable to a PE, not asingle figure. There is a common premise to the authorised approaches to attributing free capital, that an

internal condition of the PE is that the creditworthiness of the PE is generally the same as the enterprise ofwhich it is a part.

31. The authorised OECD approach recognises a range of acceptable approaches for attributingfree capital that are capable of giving an arms length result, each with its own strengths and weaknesses,which become more or less material depending on the facts and circumstances of particular cases.

Different methods adopt different starting points for determining the amount of free capital attributableto a PE, which either put more emphasis on the actual structure of the enterprise of which the PE is a part

or alternatively, on the capital structures of comparable independent enterprises. The key to attributingfree capital is to recognise:

o The existence of strengths and weaknesses in any approach and when these are likely to be

present (discussed in more detail in Section D-2(v)(b)(2)).


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o That there is no single arms length amount of free capital, but a range of potential capitalattributions within which it is possible to find an amount of free capital that can meet the

basic principle set out above.

(a) Funding costs

32. The PE requires a certain amount of funding, made up of free capital and interest -bearing debt.The objective is to attribute an arms length amount of interest to the PE, using one of the aut horisedapproaches to attributing free capital in order to support the functions, assets and risks attributed to thePE. These issues are discussed in more detail in Section D-2(v)(b)(3).

(v) Recognit ion of deali ngs

33. There are a number of aspects to the recognition (or not) of dealings between a PE and the rest ofthe enterprise of which it is a part. First, a PE is not the same as a subsidiary, and is not in fact legally or

economically separate from the rest of the enterprise of which it is a part. It follows that:

o Save in exceptional circumstances, all parts of the enterprise have the same creditworthiness.This means that dealings between a PE and the rest of the enterprise of which it is a partshould be priced on the basis that both share the same creditworthiness; and

o There is no scope for the rest of the enterprise to guarantee the PEs creditworthiness, or forthe PE to guarantee the creditworthiness of the rest of the enterprise.

34. Second, dealings between a PE and the rest of the enterprise of which it is a part have no legalconsequences for the enterprise as a whole. This implies a need for greater scrutiny of dealings between aPE and the rest of the enterprise of which it is a part than of transactions between two associated

enterprises. This also implies a greater scrutiny of documentation (in the inevitable absence, for example,of legally binding contracts) that might otherwise exist and considering the uniqueness of this issue,countries would wish to require taxpayers to demonstrate clearly that it would be appropriate to recognisethe dealing.

35. This greater scrutiny means a threshold needs to be passed before a dealing is accepted asequivalent to a transaction that would have taken place between independent enterprises acting at armslength. Only once that threshold is passed can a dealing be reflected in the attribution of profits underArticle 7(2). The functional and factual analysis must determine whether a real and identifiable event hasoccurred and should be taken into account as a dealing of economic significance between the PE and

another part of the enterprise.

36. Thus, for example, an accounting record and contemporaneous documentation showing a dealingthat transfers economically significant risks, responsibilities and benefits would be a useful starting pointfor the purposes of attributing profits. Taxpayers are encouraged to prepare such documentation, as it mayreduce substantially the potential for controversies regarding application of the authorised OECDapproach. Tax administrations would give effect to such documentation, notwithstanding its lack of legaleffect, to the extent that:

the documentation is consistent with the economic substance of the activities taking place within theenterprise as revealed by the functional and factual analysis;

the arrangements documented in relation to the dealing, viewed in their entirety, do not differ fromthose which would have been adopted by comparable independent enterprises behaving in a

commercially rational manner or, if they do so differ, the structure as presented in the taxpayers


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documentation does not practically impede the tax administration from determining an appropriatetransfer price; and

the dealing presented in the taxpayers documentation does not violate the principles of the

authorised OECD approach by, for example, purporting to transfer risks in a way that segregatesthem from functions.

See paragraphs 1.48-1.54 and 1.64-1.69 of the Guidelines by analogy.

37. It is important to note, however, that the authorised OECD approach is generally not intended toimpose more burdensome documentation requirements in connection with intra-enterprise dealings thanapply to transactions between associated enterprises. Moreover, as in the case of transfer pricingdocumentation under the Guidelines, the requirements should not be applied in such a way as to impose ontaxpayers costs and burdens disproportionate to the circumstances.

38. Third, where dealings are capable of being recognised, they may lead to a transfer of assets

and/or risks between the PE and other parts of the enterprise to which it belongs. As a consequence thecharacterisation and recognition of dealings will affect the attribution of risks, assets and therefore capitalto the PE.

B-4. Step two: determining the profits of the hypothesised separate and independent enterprise

based upon a comparability analysis

See Section D-3 for a more detailed discussion of step two of the authorised OECD approach.

39. Where dealings are capable of being recognised, they should be priced on an arms length basis,assuming the PE and the rest of the enterprise of which it is a part to be independent of one another. Thisshould be done using by analogy the guidance on transfer pricing methods contained in the Guidelines.

40. The authorised OECD approach is to undertake a comparison of dealingsbetween the PE and theenterprise of which it is a part, with transactionsbetween independent enterprises. This comparison is tobe made by following, by analogy, the comparability analysis described in the Guidelines. By analogy withthe Guidelines, comparability in the PE context means either that none of the differences (if any) betweenthe dealing and the transaction between independent enterprises materially affects the measure used toattribute profit to the PE, or that reasonably accurate adjustments can be made to eliminate the materialeffects of such differences. Principles similar to the aggregation rules of Chapter III of the Guidelinesshould also apply to permit the PEs dealings to be aggregated, where appropriate, in determining the PEsattributable profit.

41. Under the authorised OECD approach, for purposes of determining the arms length

remuneration of dealings, the most appropriate method to the circumstances of the case should be selectedand applied by analogy to the guidance in the Guidelines.

42. In an arms length transaction an independent enterprise normally would seek to charge formaking a provision in such a way as to generate profit, rather than providing it merely at cost, althoughthere can be circumstances in which a provision made at an arms length price wi ll not result in a profit(e.g.see paragraph 7.33 of the Guidelines in connection with the provision of services).

43. Section D-3(iv) contains a discussion of some commonly occurring dealings which requirespecial mention dealings involving changes in the use of tangible assets, intangible assets, costcontribution arrangements and internal service dealings.


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B-5. Summary of the two-step analysis

44. The attribution of profits to a PE of an enterprise on an arms length basis will follow from the

calculation of the profits (or losses) from all its activities, including transactions with other unrelatedenterprises, transactions with related enterprises (with direct application of the Guidelines) and dealingswith other parts of the enterprise (under step 2 of the authorised OECD approach). This analysis involvesthe following two steps:

Step One

A functional and factual analysis, leading to:

o The attribution to the PE as appropriate of the rights and obligations arising out of transactionsbetween the enterprise of which the PE is a part and separate enterprises;

o

The identification of significant people functions relevant to the attribution of economic ownership ofassets, and the attribution of economic ownership of assets to the PE;

o The identification of significant people functions relevant to the assumption of risks, and theattribution of risks to the PE;

o The identification of other functions of the PE;

o The recognition and determination of the nature of those dealings between the PE and other parts ofthe same enterprise that can appropriately be recognised, having passed the threshold test; and

o The attribution of capital based on the assets and risks attributed to the PE.

Step Two

The pricing on an arms length basis of recognised dealings through:

o The determination of comparability between the dealings and uncontrolled transactions, established byapplying the Guidelines comparability factors directly (characteristics of property or services,economic circumstances and business strategies) or by analogy (functional analysis, contractual terms)in light of the particular factual circumstances of the PE; and

o Selecting and applying by analogy to the guidance in the Guidelines the most appropriate method tothe circumstances of the case to arrive at an arms length compensation for the dealings between thePE and the rest of the enterprise, taking into account the functions performed by and the assets and

risks attributed to the PE.

The pricing on an arms length basis of any transactions with associated enterprises attributed to the PEshould follow the guidance in the Guidelines and is not discussed in this Report. The order of the listing ofitems within each of the steps above is not meant to be prescriptive, as the various items may beinterrelated (e.g.risk is initially attributed to a PE as it performs the significant people functions relevant tothe assumption of that risk but the recognition and characterisation of a subsequent dealing between the PEand another part of the enterprise that manages the risk may lead to a transfer of the risk and supportingcapital to the other part of the enterprise).

45. It can be seen that the functional and factual analysis is primarily needed to hypothesise the PE asa functionally separate entity, to identify the significant people functions relevant to determining which

part of the enterprise assumes and/or subsequently manages particular risks and economically owns


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particular assets, and to attribute to the PE as a hypothetically separate entity an appropriate amount ofcapital. This step of the analysis is likewise necessary to identify which part of the enterprise should be

hypothesised to have undertaken the enterprises rights and obligations arising from transactions with other

enterprises and what dealings should be hypothesised to exist between the PE and other parts of theenterprise. Secondly, it is important to identify the respective functions performed by both the PE andother parts of the enterprise with which it is hypothesised to have dealings in order to price those dealingsunder the second step of the authorised OECD approach.

B-6. Dependent agent PEs

46. This Report does not examine the issue of whether a PE exists under Article 5(5) of the OECDModel Tax Convention (a so-called dependent agent PE) but discusses the consequences of finding that adependent agent PE exists in terms of the profits that should be attributed to the dependent agent PE.

47. Where a dependent agent PE is found to exist under Article 5(5), the question arises as to how to

attribute profits to the PE. The answer is to follow the same principles as used for other types of PEs, for todo otherwise would be inconsistent with Article 7 and the arms length principle. Under the first step of the

authorised OECD approach a functional and factual analysis determines the functions undertaken by thedependent agent enterprise both on its own account and on behalf of the non-resident enterprise. On theone hand the dependent agent enterprise will be rewarded for the service it provides to the non-residententerprise (taking into account its assets and its risks (if any)). On the other hand, the dependent agent PEwill be attributed the assets and risks of the non-resident enterprise relating to the functions performed by

the dependent agent enterprise on behalf of the non-resident, together with sufficient capital to supportthose assets and risks. The authorised OECD approach then attributes profits to the dependent agent PE onthe basis of those assets, risks and capital.

48. See Section D-5 for a more detailed discussion of the attribution of profits to dependent agent

PEs.

C. Interpretation of paragraph 1 of Article 7: determining the profits of an enterprise

49. Article 7(1) does not allow a host country to tax the profits of an enterprise of the otherContracting State unless the enterprise carries on business in the host country through a PE situated in thatcountry. Where the non-resident enterprise carries on business in the host country through a PE situated inthat country, Article 7(1) permits the host country to tax the profits that are attributable to a PE inaccordance with Article 7(2).

50. By its reference to Article 7(2), Article 7(1) embodies the so-called functionally separateentity approach. In other words, the profits to be attributed to the PE are the profits it might be expected

to make, in particular in its dealings with other parts of the enterprise, if it were a separate and independententerprise engaged in the same or similar activities under the same or similar conditions, taking intoaccount the functions performed, assets used and risks assumed by the enterprise through the permanentestablishment and through the other parts of the enterprise. This approach does not limit the profitattributed to the PE by reference to the profit of the enterprise as a whole or a particular business activity inwhich the PE has participated, and properly applied the approach should reduce the incidence of doubletaxation. Paragraph 1 of Article 7 does not affect the determination of the quantum of the profits that are tobe attributed to the PE, other than providing specific confirmation that, the right to tax of the host countrydoes not extend to profits that the enterprise may derive from that State otherwise than through thepermanent establishment, i.e.there is no force of attraction resulting from the existence of a PE.


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D. Interpretation of paragraph 2 of Article 7: determining th

OECD Report on PEs 2010

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