- 41 - 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 thanPage: Previous 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 Next
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