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Permanent Establishment: Erosion of a Tax Treaty Principle, Second Edition by SKAAR

Permanent Establishment: Erosion of a Tax Treaty Principle, Second Edition

By Arvid A. Skaar
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Overview

Permanent Establishment is the second edition of a book that was originally published in 1991. The aim is to bring the book up to date with the current internationally accepted interpretation of permanent establishment (PE). This edition of the preeminent work on PE is a major event in tax law scholarship. Taking into account changes in judicial and administrative practice as well as the Organisation for Economic Co-operation and Development’s (OECD’s) and the United Nation’s (UN’s) work in the three decades since the first edition, the present study has added a lot to the understanding of the concept of PE since then. The analysis is based on more than 720 cases from 20+ countries, in addition to the OECD and UN model treaties and approximately 630 books, articles, and official documents.

What’s in this book:
The increased significance of the digital economy has rendered the traditional concept of PE inadequate for the allocation of taxing jurisdiction over the modern, mobile or digital international business. The author’s in-depth analysis explains the legal elements of the PE principle with attention to their continuing benefit and their shortcomings:

  • criteria defining a PE—place of business, location, right of use, duration, business connection, business activity, ordinary course of business;
  • evidence of a right of use to a place of business;
  • business activities included in the PE concept of the tax treaties;
  • identification of projects offshore and onshore;
  • UN model treaty deviations from the OECD agency clause;
  • distinction between jurisdictions with significant natural resources and countries possessing the capital, technology and know-how necessary to explore and exploit these resources; and
  • how policies in each country may erode the PE concept.

The book provides many synopses of court decisions and administrative rulings upon which the analysis is based. In addition to cases previously published in law reports and other publications, a number of unpublished decisions are included. A keyword index makes it easy to find what is needed in any particular matter.

How this will help you:
The PE principle, in one version or another, is used in several thousand tax treaties in force today. This updated comprehensive study reveals the obligations imposed through the use of PE in tax treaties and will continue to be of immeasurable value to tax practitioners and scholars worldwide. In addition, the discussion of whether the notion of PE is an appropriate criterion for taxing jurisdiction in international fiscal law today provides authoritative and insightful food for thought. The authoritative analysis including many references to major case law and commentaries will help the reader to support an argument in tax disputes.

Publish Date 03/05/2020
Product Line Kluwer Law International
ISBN 9789403520612
SKU 10059473-0002
Table of Contents

Preface to the Second Edition

Preface to the First Edition

Acknowledgments to the Second Edition

Acknowledgments to the First Edition

List of Abbreviations

PART I
Introduction

CHAPTER 1
Preliminary Issues

CHAPTER 2
Some Constitutive Political and Economic Elements of International Society

CHAPTER 3
Theories on Allocation of International Taxing Jurisdiction

CHAPTER 4
Main Elements in a Tax-Treaty Policy on PE: Basic Contradictions

CHAPTER 5
Methodology: Sources of International Fiscal Law

CHAPTER 6
General Historical Background: An Overview

CHAPTER 7
The History of the Concept of PE

CHAPTER 8
Classification of PE Conditions

PART II
The Basic Rule

CHAPTER 9
The Taxpayer’s Physical Presence: The “Place of Business Test”

CHAPTER 10
Physical Presence at a Specific Place: The “Location Test”

CHAPTER 11
The Right to Use the Place of Business: The “Right of Use Test”: General Remarks

CHAPTER 12
The “Right of Use Test” for Profit-Sharing Arrangements

CHAPTER 13
The “Right of Use Test” and Arm’s-Length Business Connections

CHAPTER 14
Indirect Evidence of a Right of Use to a Place of Business

CHAPTER 15
The Duration of the Right to Use the Place of Business: The “Duration Test”

CHAPTER 16
Introduction

CHAPTER 17
Business Activities Excluded in the Treaties

CHAPTER 18
The Domestic-Law Aspect: Income-Generating Activities Distinguished from “Business” in the Treaties

CHAPTER 19
Core Business Activity or Auxiliary or Preparatory Activities? The Tax-Treaty Aspect of the Concept of “Business”

CHAPTER 20
The Connection Between the Business and the Place of Business: The “Business Connection Test”

PART III
Construction Work

CHAPTER 21
Introduction: The Construction Clause and Its Relationship to the Basic Rule

CHAPTER 22
The Objective Aspects of the Construction PE: Identification

CHAPTER 23
The Subjective Aspect of the Construction PE: The “Duration Test”

CHAPTER 24
The Functional Aspect of the Construction PE: The “Business Activity Test”

PART IV
Offshore Business Activities

CHAPTER 25
Introduction

CHAPTER 26
Outline of Offshore PE Fictions

CHAPTER 27
Offshore Identification Provisions in the Tax Treaties Between Norway and the US, the UK, France, and the Nordic States

CHAPTER 28
The “Business Activity Test” of the Offshore Clause

PART V
Agencies

CHAPTER 29
Introduction

CHAPTER 30
Main Trends in the Development of the Agency Clause

CHAPTER 31
The Agent and the Authorization to Act on Behalf of Somebody Else: The Objectivity of the Agency PE

CHAPTER 32
“Legal” or “Commercial” Dependence: The Subjectivity of the Agency PE

CHAPTER 33
Deemed Dependency: The “Ordinary Course of Business Test”

CHAPTER 34
The Functionality of the Agency PE

CHAPTER 35
UN Model Treaty Deviations from the OECD Agency Clause

PART VI
Subsidiary as PE

CHAPTER 36
PE Through Related Corporations

PART VII
Summary and Conclusions

CHAPTER 37
Summary and Conclusions

Bibliography

Table of Cases

Index

Volumes