|
. As not CUP’s may be available, an arm’s length fee would be determined under the Transfer Pricing Guidelines according to the cost plus method applied to the direct and indirect costs incurred by the provider-PE.Based on this variation, the report also examines other variations which perform more functions or involve more servers (multi-server). The methodology prevails in this report is an analogical application of the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations.
IV . Comments
The changes to Commentary of Article 5 recognized the possibility of a PE in the context of e-commerce but it seems to be exception other than the norm. The report has been filled with restrictive wording such as ‘only in exceptional cases’, ‘in very unusual circumstances’ (is a PE likely to exist.) or it would be that in order to constitute a PE in e-commerce, a number of strict criteria need to be met.(in a typical e-commerce case, these tests are not likely to be met in the meantime)
Regarding the profit allocation issues, the role and profit of the server-PE has been reduced to that of a service provider entitled to the cost plus which a contract service provider would earn or an independent service provider, whose fee is ultimately not much better as it is to be reduced by an arm’s length charges for the use of the intangibles of which the head office is the economic owner. TAG thus denies the PE any mainstream trading function and related profit margin. This minimalistic approach to the function and corresponding arm’s length profit attribution to the PE may not properly reflect the activities of the PE and its effective penetration of the market via the new channels. The value created with the help of website has exceeded that of a simply communication tool, but contribute substantially to the company’s commercial and residual profits.
In summary, it could be seen that OECD takes an approach that seems to fall into the conservative category. Those Conservative firmly believe that good taxes are old taxes. Moreover, current PE rule has proved its effectiveness since its first appearance in international arena and has formed part of international consensus and should be clarified and adapted to characteristics of the new medium rather than be abandoned. The principle of neutrality is frequently cited as one of the arguments for such an approach. It seems, to them, e-commerce is mere acceleration of natural evolution of commercial channels. Similar conservative attitudes are also shared by national governments such the United States, the Netherlands and Canada.
|
