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Languages: English
Types: Doctoral thesis
Subjects: LAW
The terms “enterprise” “business” and “business profits” are used extensively in the OECD Model, which is the basis for the majority of the UK’s double tax conventions, and are central to the accepted rationale for attributing the right to exercise jurisdiction to tax on a source basis. However, none of these concepts is exhaustively defined. This paper focuses on the difficulties faced by the UK Courts and tax authorities in interpreting these terms in the context of permanent establishment provisions contained in UK tax treaties, and pays particular attention to the interaction between treaty law and the UK’s domestic law, including comparative law and public international law. It also highlights the problems which may arise where a differing interpretation of these terms are applied by reference to different countries’ domestic tax systems.
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    • 1. 2. Art.7 OECD MC, which is the basis for the majority of the UK's tax treaties, is headed “Business
    • Profits” although the term “profits” is referred to in Art.7. 3. Although the term “business” is mainly used in connection with the PE concept, the terms “enterprise”
    • and “profits” appear frequently in other articles of the Model. 4. Organisation for Economic Co-operation and Development, Model Tax Convention on Income and on
    • Capital: Condensed Version (Paris: OECD, July 2008). The OECD MC referred to will be the 2008 draft,
    • although a subsequent draft Model was published on 22 July 2010, reworking Art.7.
    • 3. 18. In Ostime v. Australian Mutual Provident Society 38TC492, 517 the Court held that “Enterprise … [has]
    • no exact counterpart in the taxing code of the United Kingdom”. 19. The meaning of the term “enterprise” is not clear in any common law jurisdiction. See Avery Jones, J.et
    • al., “The origins of concepts and expressions used in the OECD Model and their adoption by states” [2006]
    • British Tax Review at 223. 20. Including Enterprise Management Incentives Part 1, Sch.5 ITEPA, Enterprise Investment Scheme Pt.5
    • ITA, so-called enterprise zones for capital allowances purposes Sec.298(2) Capital Allowances Act 2001
    • (repealed by Finance Act 2008) and transfer pricing provisions in Part 4 TIOPA. 21. Sec.129(1), 130 Enterprise Act 2002 define the term “enterprise” as “activities, or part of the activities,
    • of a business.” 22. For income tax purposes these are charged under Pt.2 ITTOIA and for corporation tax purposes
    • computed under Pt.3 CTA 2009. 23. See Pt.3 ITTOIA for income tax purposes and Pt.4 Ch.2 CTA 2009 corporation tax purposes. In
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