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缔约国双方如何依照独立企业核算和公平交易原则确定可归属于常设机构的利润,是国际税法历史上长期未决的难题。2010年版的经合组织《税收协定范本》对第7条规定及其注释内容作了重大修订,修订后的第7条第2款规定的虚拟独立分设实体方法,将针对关联企业适用的可比性分析和公平交易方法类推适用于常设机构环境。这种方法具有人为虚构性质和主观想象的色彩,在适用中存在着缺乏可比对象和可预期性、增加纳税人的奉行负担和税务机关的征管成本等问题,也无法完全消除因缔约国双方国内税制差异而导致的常设机构利润国际重复征税问题,难以获得国际共识并为各国税收协定实践采纳。
How both Contracting States determine the profits attributable to permanent establishments in accordance with the principle of independent enterprise accounting and fair trade is a long-standing problem in the history of international tax law. The 2010 edition of the OECD Model Tax Convention has made a significant revision to the provisions of Article 7 and the contents of its commentary. The revised method for the provision of virtual independent entities under Article 7, paragraph 2, will address the comparability applicable to affiliates Analytical and Fair Trade Methods Analogy applies to the PE environment. This method has the characteristics of artificial imaginary nature and subjective imagination. There is a lack of comparable objects and predictability in application, increasing the tax burden on taxpayers and the cost of tax collection by the tax authorities, etc. It also can not completely eliminate the problems caused by the domestic taxation system The double taxation of the profits of the permanent establishments caused by the differences makes it difficult to gain international consensus and to adopt them for the practice of tax treaties in various countries.