Dependent agent PE – Das ist klar, nicht wahr?

Lee Sheppard has summarized some interesting discussions at a June 2013 conference in Vienna on the dependent agent branch of the permanent establishment definition (Art. 5(5) of the OECD model convention).  Among the debates were:

• whether the concept of "habitually" was satisfied when the taxpayer’s agent negotiated a single contract;
• whether "synthetic commissionaire" planning could work in a common law jurisdiction (a British government official differed with the tentative affirmative view of a British tax lawyer); and
• whether an "agent" who lacks the ability to bind its principal is exempted under the independent agent paragraph (which also was discussed).

Neal Armstrong.  Summary of Lee A. Sheppard , "The Brave New World of the Dependent Agent PE," Tax Notes International, Vol. 71, No. 1, 1 July 2013, p. 10 under Treaties - Art. 5.