The North West Life Assurance Company of Canada - Page 40

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                  Respondent asserts that Article VII, paragraph (2) permits                           
            the use of formulas in determining the taxable profits under                               
            limited circumstances.  In support, respondent relies upon                                 
            paragraph 23 of the Model Commentaries to Article 7, paragraph                             
            (3) of the Model Treaty, which states in pertinent part:                                   
                        23.  It is usually found that there are, or there                              
                  can be constructed, adequate accounts for each part or                               
                  section of an enterprise so that profits and expenses,                               
                  adjusted as may be necessary, can be allocated to a                                  
                  particular part of the enterprise with a considerable                                
                  degree of precision.  This method of allocation is, it                               
                  is thought, to be preferred in general wherever it is                                
                  reasonably practicable to adopt it.  There are,                                      
                  however, circumstances in which this may not be the                                  
                  case and paragraphs 2 and 3 are in no way intended to                                
                  imply that other methods cannot properly be adopted                                  
                  where appropriate in order to arrive at the profits of                               
                  a permanent establishment on a "separate enterprise"                                 
                  footing.  It may well be, for example, that profits of                               
                  insurance enterprises can most conveniently be                                       
                  ascertained by special methods of computation, e.g. by                               
                  applying appropriate co-efficients to gross premiums                                 
                  received from policy holders in the country concerned.                               
                  Again, in the case of a relatively small enterprise                                  
                  operating on both sides of the border between two                                    
                  countries, there may be no proper accounts for the                                   
                  permanent establishment nor means of constructing them.                              
                  There may, too, be other cases where the affairs of the                              
                  permanent establishment are so closely bound up with                                 
                  those of the head office that it would be impossible to                              
                  disentangle them on any strict basis of branch                                       
                  accounts.  Where it has been customary in such cases to                              
                  estimate the arm's length profit of a permanent                                      
                  establishment by reference to suitable criteria, it may                              
                  well be reasonable that that method should continue to                               
                  be followed, notwithstanding that the estimate thus                                  
                  made may not achieve as high a degree of accurate                                    
                  measurement of the profit as adequate accounts.  Even                                
                  where such a course has not been customary, it may,                                  
                  exceptionally, be necessary for practical reasons to                                 
                  estimate the arm's length profits.                                                   






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