Comments on the Proposed Article 7 of the OECD Model Convention

Abstract: This article discusses the ‘Discussion draft on a new Article 7 (Business Profits) of the OECD Model Convention’, dated 7 July 2008. The focus is on the first three paragraphs of Article 7 of the Model Convention (MC). Based upon this Draft, the term ‘profits of an enterprise’ of the first paragraph should be interpreted based upon the functional separate entity approach. Moreover, under the second paragraph the separate and independent enterprise fiction should be strictly applied. In line with this fiction, the Transfer Pricing Guidelines are now embedded in Article 7 of the MC. The current text of the third paragraph is completely deleted. The new text regards the attribution of ‘free’ capital to a permanent establishment.