In the recently released Announcement 2012-31, the IRS announced that the competent authorities of the U.S. and Canada entered into an agreement regarding the application of Article VII (Business Profits) of the Canada-U.S. Income Tax Treaty (the “Treaty”).
Paragraph 9 of Annex B of the Treaty refers to the applicability of the OECD Transfer Pricing Guidelines, by analogy, for the purposes of determining the business profits attributable to a permanent establishment.
The OECD Report on the Attribution of Profits to Permanent Establishments (the “Report”) was finalized in 2008 and revised in 2010 without change to the conclusions of the Report (the “authorized OECD approach” (“full AOA”)).
The competent authorities agreed that Article VII of the Treaty is to be interpreted in a manner entirely consistent with the full AOA. All other provisions of the Treaty that require a determination of whether an asset or amount is effectively connected or attributable to a permanent establishment are also to be interpreted in a manner entirely consistent with the full AOA.
The agreement generally applies to taxable years that begin on or after January 1, 2012. However, a taxpayer may choose to apply the agreement for all taxable years beginning after December 31, 2008.