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The Effect of E-Commerce on Permanent Establishment Definition

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The Effect of E-Commerce on Permanent Establishment Definition THE EFFECT OF E-COMMERCE ON PERMANENT ESTABLISHMENT DEFINITION Dissertation submitted in partial fulfilment for the requirement of the Degree of the LL.M. Submitted by Supervised by SHIVANGI SINGH DR. JASPER VIKAS NATIONAL LAW UNIVERSITY DELHI (INDIA) 2019 1 DECLARATION BY THE CANDIDATE I hereby declare that the dissertation entitled “THE EFFECT OF E-COMMERCE ON PERMANENT ESTABLISHMENT DEFINITION” submitted at is the outcome of my own work carried under the supervision of DR. JASPER VIKAS, PROFESSOR, NATIONAL LAW UNIVERSITY, DELHI. I further declare that to the best of my knowledge the dissertation does not contain any part of work, which has not been submitted for the award of any degree either inn this University or any other institutions without proper citation. Shivangi Singh 62 LL.M.18 Place: Delhi National Law University, Delhi Date: 2 CERTIFICATE OF SUPERVISOR This is to certify that the work reported in the LL.M. dissertation entitled “THE EFFECT OF E-COMMERCE ON PERMANENT ESTABLISHMENT DEFINITION”, submitted by SHIVANGI SINGH at NATIONAL LAW UNIVERSITY, DELHI is a bona fide record of her original work carried out under my supervision. Dr. Jasper Vikas National Law University, Delhi Place: Delhi Date: 3 ACKNOWLDEGEMTS I feel proud to acknowledge the able guidance of our esteemed Prof. Dr. Jasper Vikas. I acknowledge with pleasure unparallel infrastructural support that I have received from National Law University, Delhi. In fact, this work is the outcome of outstanding support that I have received from the faculty members of the college, in particular Prof. Dr. Jasper Vikas. I find this opportunity to thank the library staff of National Law University, Delhi. This research bears testimony to the active encouragement and guidance of a host of friends and well-wishers. I am greatly indebted to the various writers, jurists and all other from whose writings and work I have taken help to complete this dissertation. Date: Place: Delhi (Shivangi Singh) 4 LIST OF ACRONYMS & ABBREVIATIONS BEPS Base Erosion and Profit Shifting CDs Compact Disc DVDs Digital Versatile Disk DTAAs Double Tax Avoidance Agreements E-COMMERCE Electronic Commerce L. REV. Law Review NO. Number OECD Organisation for Economic Co- operation and Development PE Permanent Establishment TAG Technical Advisory Group VOL. Volume V. Versus 5 LIST OF CASES 1. SIR v. Downing, 1975 (4) SA 518 (A), 37 SATC 249. 2. Estate G v. COT, 1964, SR, 26 SATC 168. 3. Scally v. Southern Health and Social Services Board, [1992] 1 AC 294 4. Carborandum Ltd. v. CIT and Tekniskil Sendirian Berhard v. CIT, 1996 222 ITR 551 AAR 5. General Motors Overseas Corporation v. CIT, 2013 6. Morgan Stanley Ruling on PE 7. The Spanish Case 8. The Columbian Case 9. CIT v. Vikshakhapatnam Port Trust 6 TABLE OF CONTENTS TITLE PAGE NO. DECLARATION BY THE CANDIDATE 1 CERTIFICATE OF SUPERVISOR 2 ACKNOWLEGEMENTS 3 LIST OF ACRONYMS AND ABBREVIATIONS 4 LIST OF CASES 5 CHAPTER 1 INTRODUCTION 9-17 1.1 HISTORICAL DEVELOPMENT OF PERMANENT 12-14 ESTABLISHMENT 1.2 ISSUES AND CHALLENGES OF E-COMMERCE 14 1.3 MODELS AND WORLWIDE PRACTICE 15-17 CHAPTER 2 PERMANENT ESTABLISHMENT 18-39 2.1 WHAT IS PERMANENT ESTABLISHMENT 18-19 2.2 IMPORTANCE OF PERMANENT ESTABLISHMENT 20-27 2.3. WHEN IS A PERMANENT ESTABLISHMENT 28-34 DEEMED TO EXIST? 2.3.1 INDIAN APPROACH TOWARDS PE 28-34 2.4 CASE LAWS 34-39 CHAPTER 3 THE OECD MODEL ON E-COMMERCE 40 -46 AND THE CONCEPT OF PERMANENT ESTABLISHMENT 3.1THE OECD MODEL TAX CONVENTION: 40-46 COMMENTARY ON ARTICLE 5 ESPECIALLY FOR E- COMMERCE CHAPTER 4 WHAT IS E-COMMERCE? 47-57 7 4.1 GOVERNMENTAL REGULATION 51-53 4.2 FORMS 53 4.3 GLOBAL TRENDS 54-57 CHAPTER 5 THE IMPACT OF E-COMMERCE ON 58 -60 PERMANENT ESTABLISHMENT DEFINITION 5.1 PHYSICAL PRESENCE VERSUS E-COMMERCE 58-59 5.2 IS THE LOCATION OF SERVER RELEVANT TO 59 - 60 THE BUSINESS ACTIVITY WHEN IT COMES TO E- COMMERCE? CHAPTER 6 CONCLUSION AND RECOMMENDATIONS 61-64 BIBLIOGRAPHY 65-67 BOOKS 65 REPORTS 65 STATUTES 66 WEBSITE 66 ARTICLES 66-67 8 CHAPTER 1 INTRODUCTION Electronic Commerce is characterized as "business exchanges, led through the handling and transmission of digitized information, as content, sound just as visual pictures, over the open systems, or close systems that have a passage into an open- arrange". Electronic business (web based business) was an upheaval in directing business exchanges. Internet business enables clients to execute business in various ways, for example, requesting of products on the web and making installments electronically. This type of exchanging has turned into each well known internationally because of the simple access to PCs and Internet. Purchasers of products and ventures think that its more helpful to shop online instead of confronting bothers in regular shopping. As per Lubbock and Krosch (2000), online business has extensive financial and social ramifications. One key region of economy where online business has expansive ramifications is the field of tax collection where it has caused the errand of exhausting organizations to turn out to be all the more overwhelming.1 The genuine test in saddling web based business is the means by which to apply the current duty laws and standards to online business exchanges. One other center issue in online business tax assessment is the means by which to decide the standards administering lasting foundation. This is on the grounds that the customary assumption of business tasks, which requires a physical area as the idea of duty ward that has up to this point been connected to a physical/land nexus, is hard to be recognized in an internet business condition. The utilization of area names and electronic middle person in web based business make it hard to learn the physical area of a business. All things considered, there is a view that web based business exchanges ought not be outside the current duty framework. For instance, Organization for Economic Cooperation and Development (OECD) states that the present assessment framework is appropriate for 1 Lubbock and Krosch, E-commerce: Doing Business Electronically, 2000 9 both vehicle of business exchanges, on the web or physical (Kasipillai and Razak, 2000). 2 Expense specialists additionally perceive that assessment rules were structured in a time where web based business was absent, subsequently the present duty rules are lacking to manage internet business exchanges (Smith, 2002). There are assumptions that the utilization of present duty standards to web based business will cause charge misfortune to the administration (Davis and Chan, 2000). Unavoidably, this is a noteworthy worry by numerous administrations since expense is fundamental income which adds to in any event 80% of the important wellspring of income for most governments (Jones and Basu, 2002)3. Expense misfortune because of web based business is a noteworthy worry for some assessment specialists. The goal of this paper is to think about the impression of the duty specialists and expense officers in Malaysia on the effect of online business on assessment accumulations to the assessment routines. This examination adds to the assortment of information on web based business tax collection. For instance, this examination adds to the current writing on expense issues identified with web based business condition as almost no exploration focuses on this significant territory. Furthermore, the discoveries of this investigation will be valuable to the Inland Revenue Board (IRB) to plan rules on tax assessment of web based business in Malaysia. Saddling web based business has turned into a worldwide test for governments and organizations alike in the course of recent years. As all around right on time as 1994 the Katz Commission was accused of the undertaking of evaluating the duty framework in South Africa to consider the effect of web based business on the expense framework. “The Commission announced that web based business was a worldwide issue and that South Africa would react to it when the world economies started formalizing strategies on tending to universal exchange over the Internet.”4 2 Kasipillai, J. and Razak Saleh, “Tax Considerations Involving Electronic Commerce”, Akauntan Nasional, Journal of Malaysian Institute of Accounts, Vol.13 No. 5. 3 Subhajit Basu and Richard Jones, E-commerce and the law: a review of India’s Information Technology Act, 2000, Contemporary South Asia Journal, Volume 12, Issue 1, 2003 4 Katz Commission Report into Tax. 10 From that point forward online business has mushroomed worldwide and South Africa is no special case. As indicated by the overseeing executive of think-tank World Wide Worx, Arthur Goldstuck, “the neighborhood web based business deals are set to top R9bn in 2016. This is relied upon to be 1.03% of all out retail deals in the nation in that year, an achievement for South Africa's online business space.”5 It was appropriately expressed that experts need to reinforce charge laws and guarantee level playing field among nearby and universal organizations managing computerized merchandise and enterprises. Income lost through advanced economy is a developing worry of governments globally. Personal assessment standards have customarily been founded on the presence of some type of physical nearness (either residency, wellspring of pay or a perpetual foundation) in a zone of locale before expense might be demanded. The principle challenge presented by exchanges led over the web is that they rise above global limits and have no fixed area, a focal mainstay of any duty framework. Assessment bargain rules apply to the idea of a perpetual foundation to decide if a nation has exhausting rights over the business benefits of a non-inhabitant citizen. South Africa's expense framework has been habitation based since long periods of evaluation beginning on or after 1 January 2001.
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