- 47 - applies an entirely new yield to all of the branch's assets not just to the additional imputed assets. Prior sections 819(a) and 813, on the other hand, imputed additional income for just those deemed assets. We recognize that a convention, like a constitution, is a dynamic instrument, drafted to take account of changing conditions and expectations. See Day v. Trans World Airlines, Inc., 528 F.2d at 35; Maximov v. United States, 299 F.2d at 568. If we were to accept respondent's argument, however, the United States could, through various amendments to the Internal Revenue Code, always eliminate unilaterally the separate-entity principles in Article VII, paragraph (2) without ever violating the Canadian Convention. Nor are we are persuaded that the circumstances herein are exceptional. While paragraph 23 does not prescribe when circumstances are considered exceptional, we do have other guidance as to when such circumstances may exist. Paragraph 11 of the Model Commentaries states that: 11. In the great majority of cases, trading accounts of the permanent establishment * * * will be used by the taxation authorities concerned to ascertain the profit properly attributable to that establishment. Exceptionally there may be no separate accounts (cf. paragraphs 23 to 27 below). * * * [Emphasis added.] The above language suggests that other methods may only be adopted when a permanent establishment does not have anyPage: Previous 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 Next
Last modified: May 25, 2011