The Authorized OECD Approach for the attribution of profits to Permanent Establishments in a Post-BEPS World : An analysis of the Authorized OECD Approach for the attribution of profits to Permanent Establishments which arise from commissionaire arrangeme

Abstract: The BEPS Project has led to unprecedented changes in international taxation rules. In this respect, the recent changes made to the definition of permanent establishment (PE) under BEPS Action 7 target aggressive tax structures used by multinationals enterprises (MNEs). Due to the narrow scope of Article 5(5) and 5(6), taxpayers easily managed to escape the existing definition of PE with the use of tax avoidance strategies, such as commissionaire arrangements. Therefore, some revisions of Action 7 particularly concern the PE threshold provided by Article 5(5) with respect to commissionaire arrangements. The revisions have also arisen questions as to whether the profit attribution rules in connection with the newly proposed PEs will be affected by the BEPS suggestions. In this regard, the Report on BEPS Action 7 had noted the importance of additional guidance for the attribution of profits to the post-BEPS PEs resulting from the changes. Finally, the Additional Guidance on the Attribution of Profits to Permanent Establishments which deals with the attribution of profits to the newly proposed PEs under Action 7 has been released on 22 March 2018. The revised concept of PE ultimately has implications for the application of the Authorized OECD Approach (AOA) for the attribution of profits to PEs. This thesis will analyze the functional and factual analysis performed within the first step of the AOA for the attribution of profits to PEs which arise from commissionaire arrangements under Action 7. The analysis will be based on the general principles of the AOA and the high-level principles provided by the Additional Guidance, with the specific reference to the BEPS work on risk assumption under Actions 8-10. The thesis will also touch upon the PE threshold proposed by Action 7 that concerns commissionaire arrangements.