Lowering the Permanent Establishment Threshold via the Anti-BEPS Convention: Much Ado about Nothing?

The author examines the lowering of the threshold at which commissionaire, auxiliary, and building site and construction activities qualify as a permanent establishment under the Multilateral anti-BEPS Convention (MLI). With a view to countries planning to implement the provisions in this convention on permanent establishments within their tax treaty networks, the author argues for exercising a degree of caution. Some caution may be worthwhile to be exercised specifically with regard to the MLI provisions on commissionaire and auxiliary activities, as these provisions seem unlikely to have any substantial effect in terms of effectively shifting substantial tax base towards market jurisdictions. Attributing tax base to the market jurisdiction requires a fundamental restructuring of the way in which business profits are divided geographically in international taxation. In the absence of any moves in this direction, it would not seem sensible to alter the reference points for determining tax jurisdiction. Implementing these MLI provisions could meanwhile also prompt countries to seek to claim more of the ‘tax pie’ for themselves than they are entitled to under the existing international profit attribution rules. In that event, it would not seem inconceivable that such action could result in double taxation or double non-taxation, legal uncertainty and problems of an administrative nature – red tape.

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