NORMATIVE REGULATION OF BASIC PERMANENT ESTABLISHMENT IN TAX LEGISLATION OF UKRAINE

Abstract

The basic permanent establishment has been used in the texts of bilateral double taxation treaties since the conclusion of the first ones in the second half of the XIX century. The article is aimed at the characterization of normative regulation of basic permanent establishment in the tax legislation of Ukraine in comparison with their conformity to the provisions of the OECD Model Tax Convention and its Commentaries. Reference to the OECD Model Tax Convention and its Commentaries as a basis for comparison is determined by the fact that it is a recognized and widely used source of interpretation of the provisions of double taxation treaties including the treaties concluded by Ukraine. The comparison of the provisions of the Tax Code of Ukraine and the OECD Model Tax Convention points out the existence of inconsistencies that might have a negative influence on the efficiency of the concept of a permanent establishment in Ukraine and good faith realization of conventional norms on tax matters in Ukraine. There are a few proposals of changes that might help to avoid the undesirable consequences of the abovementioned differences: 1) to replace the words “permanent place of activity” on “fixed place of activity” (Art. 14(1)(143) of the Tax Code of Ukraine); 2) to add the words “but not limited to” after the word “include” at the second part of Art. 14(1)(193) of the Tax Code of Ukraine; 3) to add the words “notwithstanding the provisions of the provisions of the first part of this Article” after the words “except to services of secondment of employees” and “civil rights and duties” at the second part of Art. 14(1)(193) of Tax Code of Ukraine; 4) to provide the mechanism of realization of provisions of Art. 10 of the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS concluded in November 2016. Keywords: permanent establishment; OECD Model Tax Convention; tax legislation; double taxation treaties; interpretation.