Nuolatinės buveinės instituto reikšmė išvengiant dvigubo apmokestinimo elektroninėje komercijoje

Abstract

In late 20th c. the rapidly developing information technologies and internet communications fostered the growth of electronic commerce. It became not only possible to place orders for goods and services by internet – orders and services could be delivered or provided within cyberspace. To promote electronic commerce, it is necessary to have a server linked up to internet, and a web site.
Such services may be rendered by internet service providers from whom legal entities rent a server; on the other hand, the company itself may run a server securing its functioning on the grounds of property right.
The institution of permanent establishment and the related concept of determination of legal jurisdiction represent one of many bases for the setting up of corresponding relations between the enterprise and the foreign state in which the former has started its economic and commercial operations in order to avoid double taxation. On such grounds bilateral or even multilateral agreements giving the right to collect taxes to one or other party are signed. Compared to electronic commerce, the said institution was set up much earlier, so the greater part of international agreements for the avoidance of double taxation do not provide that the concept of permanent establishment should cover also a server by means of which the enterprise carries out its economic and commercial operations. The only linkage relating the company with the foreign state may represent a server linked up to internet, and a corresponding web site located within it. Companies wishing to sell their goods abroad do not need to have separate office accommodation located in that state. However such corporate representation in another country raises problems related to the definition of permanent establishment. Consequently, it is necessary to establish the legal status of server located in the foreign country to which the company seeking to pursue its economic and commercial operations is about to move it. It is also necessary to define the criteria on the grounds of which the server might be treated as a permanent establishment.
The above-mentioned problems are investigated on the basis of agreements for the avoidance of double taxation, law, the Model Tax Convention on Income and on Capital promoted by the Organisation for Economic Co-operation and Development, as well as on opinions given by experts from the said organisation. The article specifies the criteria to be met by the server, so that it could be recognised as a permanent establishment; it also outlines the treatment of server-web site relation framed on the grounds of recommendations coming from the above-mentioned organisation. The article also defines the status of internet service provider as an independent agent whose services are used by a foreign state company pursuing its electronic commerce operations.