Attribution of Profits to Permanent Establishments

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Author(s):
OECD
12 Feb 2001
Pages:
73
ISBN:
9789264184527 (PDF)
http://dx.doi.org/10.1787/9789264184527-en

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Currently, there is a lack of consensus amongst OECD Member countries as to how profits should be attributed to a permanent establishment (PE). As a first step in remedying this situation a working hypothesis has been developed as to the preferred approach for attributing profits to the PE. The basis for the working hypothesis is to examine how far the approach of treating the PE as a hypothetical distinct and separate enterprise can be taken and how the guidance in the OECD Transfer Pricing Guidelines could be applied, by analogy, to attribute profits to a PE. This discussion draft contains the results of testing the working hypothesis in general (Part I) and to PEs of banks (Part II). Public comments are invited in order to assist in the development of an OECD consensus on the attribution of profits to a PE.

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Table of Contents

PREFACE
PART I: GENERAL CONSIDERATIONS
-A. Introduction
-B. Interpretation of paragraph 1 of Article 7: Determining the profits of an enterprise
--(i) The "relevant business activity" approach
--(ii) The "functionally separate entity" approach
--(iii) Conclusion
-C. Interpretation of paragraph 2 of Article 7: Determining the profits attributable to the Permanent Establishment
--C-1 First step: Determining the activities and conditions of the hypothesised distinct and separate enterprise
---(i) Functions (activities).
---(ii) Assets used
---(iii) Risks assumed
---(iv) Conclusion
--C-2. Second step: Determining the profits of the hypothesised distinct and separate enterprise based upon a comparability analysis
---(i) Introduction
---(ii) Recognition of dealings
---(iii) Applying transfer pricing methods to attribute profit
---(iv) Comparability analysis
-D. Interpretation of paragraph 3 of Article 7
-E. Interpretation of paragraph 4 of Article 7
-F. Interpretation of Paragraph 5 of Article 7
PART II: SPECIAL CONSIDERATIONS FOR APPLYING THE WORKING HYPOTHESIS TO PERMANENT ESTABLISHMENTS (PEs) OF BANKS
-A. Introduction
-B. Factual and functional analysis of a traditional banking business
--B-1 Functions performed
---(i) Functions involved in creating a new financial asset - a loan
---(ii) Functions involved in managing an existing financial asset - a loan
---(iii) Other functions
--B-2 Assets used
--B-3 Risks assumed
---(i) Credit rating
---(ii) Capital adequacy requirements
---(iii) Other regulatory requirements
---(iv) Significance of "free" capital
-C. Banks operating through subsidiaries
-D. Applying the WH to banks operating through a PE
--D-1 First step: determining the activities and conditions of the hypothesised distinct and separate enterprise
---(i) Attributing functions to the PE
---(ii) Attributing a credit rating to the PE
--(iii) Attributing "free" capital to the PE
---(iv) Adjusting the interest expense claimed by a PE
--D-2 Second step: determining the profits of the hypothesised distinct and separate enterprise based on a comparability analysis
---(i) Recognition of dealings
---(ii) Applying transfer pricing methods to attribute profit
---(iii) Traditional banking business
---(iv) Agency or conduit functions

 
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