A critical analysis of the principle permanent establishment and related tax rules in establishing taxing right with reference to e-commerce

Abstract

E-commerce challenges traditional taxation rules and tax authorities find it difficult to effectively tax business profits derived from cross-border commercial transactions utilising the Internet. This study analyses the fundamental principles of the concept of permanent establishment and related international tax rules and assess the traditional requirements against the unconventional characteristics of e-commerce. Whilst the features of e-commerce ignore territorial borders and geographic locations, that is, the status of a virtual presence, the concept of permanent establishment (still) calls for a fixed location in a country, which relates to a physical presence. Gaps and mismatches in tax rules have allowed multi-national enterprises to adopt strategies to shift profits to low or no-tax jurisdictions and prompted the OECD to launch a Base Erosion and Profit Shifting (BEPS) initiative to counter tax avoidance. Today, more than100 countries are collaborating to implement the reform measures which include actions to address the tax challenges of the digital economy and to prevent the artificial avoidance of permanent establishment status. The research concludes that the OECD reform measures do not adequately address the issues relating to the concept of a permanent establishment in situations where enterprises conduct cross-border e-commerce based on a digital business model. Furthermore, the study submits that due to the traditional permanent establishment (nexus) approach, cases of e-commerce may challenge a country?s taxing rights by virtue of there being no physical presence to constitute a permanent establishment.