Alinea 40 Hoge Raad 7 mei 1997

"(blz. 67) (...) Paragraph 2 10. This paragraph (...) incorporates the view (...) that the profits to be attributed to a permanent establishment are those which that permanent establishment would have made if, instead of dealing with its head office, it had been dealing with an entirely separate enterprise under conditions and at prices prevailing in the ordinary market. (...) (blz. 69) 11. In the great majority of cases, trading accounts of the permanent establishment - which are commonly available if only because a well-run business organisation is normally concerned to know what is the profitability of its various branches - will be used by the taxation authorities concerned to ascertain the profit properly attributable to that establishment. (...) where there are such accounts they will naturally form the starting point for any processes of adjustment in case adjustment is required to produce the amount of properly attributable profits. (...) it is always necessary to start with the real facts of the situation as they appear from the business records of the permanent establishment and to adjust as may be shown to be necessary the profit figures which those facts produce. It should also be noted that the principle set out in paragraph 2 is subject to the provisions contained in paragraph 3, especially as regards the treatment of payments which, under the name of interest (...) are made by a permanent establishment to its head office in return for money loaned (cf. paragraphs 16 below and following). (...) 13. (...) the general rule should always be that the profits attributed to a permanent establishment should be based on that establishment's accounts insofar as accounts are available which represent the real facts of the situation. If available accounts do not represent the real facts then (...) the figures to be used will be those prevailing in the open market. (...) (blz. 71) (...) Paragraph 3 15. This paragraph clarifies, in relation to the expenses of a permanent establishment, the general directive laid down in paragraph 2. (...) Clearly in some cases it will be necessary to estimate or to calculate by conventional means the amount of expenses to be taken into account. (...) it is considered that the amount of expenses to be taken into account as incurred for the purposes of the permanent establishment should be the actual amount so incurred. The deduction allowable to the permanent establishment for any of the expenses of the enterprise attributed to it does not depend upon the actual reimbursement of such expenses by the permanent establishment. 16. Apart from what may be regarded as ordinary expenses, there are some classes of payments between permanent establishments and head offices which give rise to special problems, and it is convenient to deal with them at this point. (...) 17. The first of these cases relates to payments which under the name of interest (...) are made by a permanent establishment to its head office in return for money loaned (...) by the latter to the permanent establishment. In such a case, it is considered that the payments should not be allowed as deductions in computing the permanent establishment's taxable profits. Equally, such payments made to a permanent establishment by the head office should be excluded from the computation of the permanent establishment's taxable profits. (...) if an enterprise makes payments of interest (...) to a third party and these payments in part relate to the activities of the permanent establishment, then a proportionate part of them should naturally be taken into account in calculating the permanent establishment's profits insofar as they can properly be regarded as expenses incurred for purposes of the permanent establishment. (...)"

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