The Attribution of Profits to Permanent Establishments Created by Cross-border Pipelines

Abstract

This study addresses the taxation issues arising from a cross-border pipeline. The first element that is addressed is the different possible classifications of a pipeline for tax purposes. The fact that the Organisation for Economic Co-operation and Development (“OECD”) does not provide a universal classification for a cross-border pipeline, leaves tax authorities in the various jurisdictions to interpret and classify the pipeline as they see fit. This lack of consistent classification may give rise to double taxation or even double non-taxation. The study explores the definition of a permanent establishment (“PE”) and analyses the elements of the definition in terms of the OECD Model Tax Convention (“MTC”) and the OECD Commentary on Article 5. In this study the assumption is made that the classification of a cross-border pipeline is that it falls within the ambit of Article 5 and should therefore be treated as a PE. If the cross-border pipeline is classified as a PE for taxation purposes the attribution of profits arising from the PE will be attributed in terms of Article 7 of the OECD MTC. In the study the attribution of profits relating to the PE created by the presence of a cross-border pipeline in various jurisdictions is analysed. The attribution of such profits can result in difficulties in determining the exact amount attributable to each of the jurisdictions which the pipeline spans. The author considers the OECD Reports (2008 and 2010 Reports) on the Attribution of Profits to Permanent Establishments to comment on whether the reports provide adequate guidance for attributing profits to such a unique situation as that of a cross-border pipeline. It is also addressed whether the attribution of profits to a cross-border pipeline can be dealt with under the general principles of attribution. Case law is also considered, in particular, the German Pipeline Decision which determined whether an underground pipeline can constitute a PE under German domestic law and under the DTA between the Netherlands and Germany. In the conclusion research indicates that there is room for development and further guidance from the OECD in its MTC and Commentary as this is a unique and potentially complex situation that cannot be placed under general provisions or left unaddressed. The current lack of guidance can result in different classifications of the cross-border pipeline which effectively results in adverse tax consequences in different jurisdictions and uncertainty to the taxpayer.