September 15, 2017

BEPS Modifications to Determine Permanent Establishment

By Miriam Name and Fernando Juárez

On June 7, 2017, Mexican tax representatives participated in the execution of the “Multilateral Convention for the Implementation of Measures Related to Tax Treaties to Prevent the Erosion of Taxable Amounts and the Transfer of Benefits” (also known as “Multilateral Instrument” or “MLI”) of the Economic Cooperation and Development Organization (OECD).

After such execution, Mexico and more than 70 countries (excluding the United States) have joined forces with the objective of implementing the anti-erosion measures established by the BEPS (Base Erosion and Profit Shifting) report. Among the most important changes is the concept of “permanent establishment” on income and estate taxes as established in the OECD Model Tax Convention.

In this sense, through the proposed modifications, it is determined whether structures such as commission contracts or similar strategies constitute a permanent establishment. Also, structures such as the “fragmentation of activities” of a particular company are now considered as a permanent establishment. Another strategy that is equally analyzed is the division of contracts between related parties.

Structures such as those described above are analyzed in the comment modifications to the OECD Model Convention under the BEPS plan. Considering that the tendency of the tax authorities will be to implement the measures of the BEPS report, it advisable for every company to carry out an analysis of their current structure. This will enable them to verify if their current structure could be deemed to constitute a permanent establishment in accordance with the new regulations.