The North West Life Assurance Company of Canada - Page 41

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                  Respondent argues that paragraph 23 of the Model                                     
            Commentaries permits the adoption of formulas if any one of the                            
            following circumstances is satisfied: (1) Formulas are found to                            
            be more convenient or administratively necessary; (2) the                                  
            permanent establishment lacks adequate accounts by which to                                
            determine the attributable profits; (3) the other method is                                
            customary; (4) the permanent establishment is a foreign insurance                          
            enterprise; and (5) an exceptional need for the method is                                  
            demonstrated.  In respondent's view, each circumstance is                                  
            satisfied in the instant case, and section 842(b) is a                                     
            permissible method by which to determine attributable profits                              
            within the meaning of the Canadian Convention.  The amicus curiae                          
            brief submitted by the Government of Canada asserts that when                              
            contracting parties to a tax convention intend to permit the use                           
            of formulas to determine profits of a permanent establishment                              
            engaged in the insurance business, the convention will contain a                           
            specific provision to that effect.                                                         
                  We need not decide whether Article VII, paragraph (2)                                
            permits the use of formulas in determining the profits                                     
            attributable to a permanent establishment.  As a preliminary                               
            matter, we find respondent's reliance on paragraph 23 of the                               
            Model Commentaries to be misplaced.  We think respondent gives                             
            paragraph 23 too broad a reading.  Our reading leads us to the                             
            conclusion that, at a minimum, before other methods (other than                            





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