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Uneasy Application of Permanent Establishment

 
 
 Note: The largest impacts yet to be felt.Most of the world is still on the bottom of the S curve.
 The 2000 market correction (.com to .bomb) merely slowed the growth of e-commerce from unbelievably fast to exceptionally rapid.
 
 Concerns over the possible erosion of tax base by international electronic commerce have inspired numerous literatures and discuss papers since the first release of US Treasury Paper Selected Tax Policy Implications of Global Electronic Commerce. National governments, international organizations and tax experts reached a Consensus that it would not be easy to apply current PE rule in electronic commerce which it is not designed for. The difficulties are : the website is by itself combination of software and digital data stored in the server and does not amount to the place of business,the visibility of website will no lead to the existence of PE,the location of servers are too easy to be manipulated to be fixed, the automation of website and server normally does not constitute carrying business activities, websites are hosted by Internet Services Provider and the business does not have at its disposal the server and the location of the server, the telecoms company and ISP provides only internet access ,date storage, transit or other auxiliary services and could not be an agency PE of the foreign vendor.
 
 Some commentator describes the process of applying current treaty notions to electronic commerce as the story of Cinderella, trying various shoes on one foot. But what if the foot is what the shoe makers did not envisage? Current PE rule is designed in a traditional environment and attaches great importance to physical presence such as place of business and agents. The strong market penetration effects of electronic commerce are not what it has or ought to have contemplated.
 
 In view of the ineffectiveness of PE rule in the electronic commerce context, international communities have proposed a variety of policy options to address this issue. Depending on the extent to which these policy options deviate from the existing PE rule, they are classified as revolutionary or conservative. Revolutionary approaches include new taxes such as BIT tax advocated by Canadian tax expert A.Cordell, withholding tax proposal by R L Doernberg and the so called abandonment of PE. In contrast, some commentators are rather conservative in even proposing a possible solution to this problem. To them, good taxes are old taxes. A status quo or hands-off approach would be the best way to deal with the challenges by international electronic commerce which merely represents the natural evolution of conventional channels to conduct business. A compromise between these two extremes, namely virtual PE, is advocated by Professor L.Hinnekens, Unversity of Antwerp.


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