New Taxing Right in the Unified Approach: Old Wine in a New Bottle

Abstract

The OECD’s ‘Unified Approach’ (UA) features new taxing rights allocated to market jurisdictions irrespective of the existence of physical presence. While this new taxing right is intended to address tax challenges of a new economic pattern, i.e. the digitalization of the economy, these authors note that similar challenges already existed even before the era of digitalization, particularly with respect to the attribution of profit to the dependent agent permanent establishment (DAPE). The authorized OECD approach (AOA), which hinges the profit attributable to a DAPE upon the significant people function performed by the dependent agent (DA), has been heavily criticized. In this regard, the UA provides a more reasonable and simplified solution: the source state is entitled to tax at least a portion of the residual profit made by the non-resident enterprise from the business undertaken in that state through the DAPE regardless of the extent of the functions performed by the DA enterprise. This approach has indeed already been implemented by certain countries in their domestic tax practice regarding the DAPE profit attribution, albeit couched in traditional transfer-pricing terms. At the same time, these domestic tax practice on the DAPE profit attribution may enlighten the improvement to the UA that has been criticized for its complexity and uncertainty. Tax challenges of the digitalization of the economy, unified approach, new taxing right, dependent agent permanent establishment, profit attribution to a dependent agent permanent establishment, authorized OECD approach, benefit principle, destination-based transfer pricing methods