On 13 January 2015 the OECD published on its website the comments received from interested parties on the discussion draft in respect of Action 7 of the action plan on base erosion and profit shifting (BEPS). This concerns prevention of artificial avoidance of permanent establishment (PE) status. Comments were received from around 100 parties including trade and industry organizations, professional advisers and multinational enterprises.

Currently the OECD Model tax treaty provides for business profits of a party in the other contracting state to be taxed in the host country only when it has a permanent establishment (PE) in that state. The definition of a PE is therefore very important as it determines whether the PE will be subject to taxation. There has been some concern that multinational enterprises are engaging in aggressive tax avoidance by using artificial measures to avoid coming with the definition of a PE in countries where they operate. The prevention of artificial avoidance of PE status was therefore included as Action 7 in the OECD/ G20 action plan on base erosion and profit shifting (BEPS).

The action plan stressed that the definition of a PE in the Model Treaty needs to be updated to prevent the artificial avoidance of PE status. It was noted that the rules on a dependent agent PE need to be tightened. Multinational enterprises have increasingly used commissionaire arrangements instead of distribution subsidiaries to ensure that profits are shifted out of the host jurisdiction without becoming subject to taxation there. This arrangement is often put in place without any change in the functions performed in the host country. Multinationals are also seen to allocate their activities in a host jurisdiction between a number of entities with the objective of taking advantage of the exceptions to PE status relating to preparatory and auxiliary activities.

A discussion draft in respect of Action 7 of BEPS was issued on 31 October 2014. This discussed the above points and also included a section on the attribution of profits to permanent establishments and its interaction with the action points relating to transfer pricing issues. Further development of actions on this issue is likely to be included in some of the other actions taken in the BEPS project.

The discussion draft suggested that abuse of the PE exceptions could be avoided by including an amendment to ensure that all the activities listed under exceptions in paragraph 4 of Article 5 of the Model Treaty are subject to the activities being of a preparatory or auxiliary nature. Alternatively the discussion draft suggested that all references to delivery of goods could be removed from the exceptions.

Artificial arrangement to avoid falling within the definition of a dependent agent permanent establishment would be combated by adjustments to references to the conclusion of contracts by the agent. The wording would refer to contracts for the provision of property or services by the enterprise. The discussion draft suggested that the reference to “conclude contracts” could be replaced by references to an agent that “engages with specific persons in a way that results in the conclusion of contracts”. The requirement for independence of an agent would also be strengthened.

A second alternative would be to refer to contracts for the provision of property or services by the enterprise and a reference to an agent who “concludes contracts, or negotiates the material elements of contracts”, combined with strengthening the independence requirement.

Alternatively the reference to “contracts in the name of the enterprise” could be replaced by “contracts which, by virtue of the legal relationship between that person and the enterprise, are on the account and risk of the enterprise” and replace “conclude contracts” with “engages with specific persons in a way that results in the conclusion of contracts”. Also with this alternative the requirement for an independent agent would be strengthened.

A fourth alternative is to use the wording “contracts which, by virtue of the legal relationship between that person and the enterprise, are on the account and risk of the enterprise”. There would be a reference to an agent who “concludes contracts, or negotiates the material elements of contracts” and the independence requirement would again need to be strengthened.

The OECD has also noted in the course of its work on BEPS that the report addressing tax challenges arising from the digital economy has identified some tax issues that will need to be looked at in relation to the prevention of artificial avoidance of PE status. The actions taken to improve the definition of PE status must therefore ensure that core activities of a taxpayer in the host country cannot benefit from the exceptions from PE status which are intended to apply only to preparatory and auxiliary activities, and that artificial arrangements for provision of goods and services cannot be used as a way of sidestepping PE status.

The comments from interested parties showed some concern that the criteria in respect of a dependent agent PE could result in uncertainty for taxpayers and increased disputes with the tax authorities. The subjective nature of criteria for establishing a PE would lead to difficulties and increased compliance costs for taxpayers. There would also be increased administrative costs for tax administrations and it could often be the case that the increased compliance costs would be greater than the extra tax payable in the host country.

It was pointed out by some commentators that businesses often set up commissionaires for legitimate business reasons and it should not be automatically assumed that commissionaire arrangements are always set up for tax avoidance reasons. Legitimate business arrangements could be exposed to uncertainty by changes in the tax rules.

As regards the splitting of construction contracts to avoid falling within the PE definition, it was pointed out that the reality of business in practice would make this very difficult to do. The use of multiple entities to carry out a construction contract in one jurisdiction would run up against various legal and administrative problems of a non-tax nature. These would render such artificial arrangements almost impossible to achieve.

A public consultation on the above issues has been planned for 21 January 2015 and this will be broadcast live on the internet. Some of the interested parties who commented on the discussion draft are to speak at the public consultation.