US Tax Policy and Attribution of Profits to Permanent Establishments

Article 7 of the OECD Model concerns the attribution of profits to permanent establishments. The OECD Commentary on Article 7 has long observed that article 7 incorporates the arm’s length standard, yet how the arm’s length standard is taken into account for purposes of article 7 has historically generated a great deal of debate. To some extent, the adoption of the Authorised OECD Approach (AOA) in 2010 went a long way towards providing an analytic framework and settling that debate – but not all the way, and certainly not with respect to US treaties. This article examines in detail how the US Treasury, through the technical explanations of US treaties and in litigated cases, has articulated its understanding of how to attribute profits to permanent establishments in non-AOA treaties, and how those explanations can be reconciled with the view also expressed by the US Treasury in those same technical explanations that article 7 embodies the arm’s length standard.