DT2860.5 - DT: Azerbaijan: double taxation agreement, SI95 No 762, Article 5: Permanent establishment

1) For the purposes of this Convention, the term `permanent establishment` means a fixed place of business through which the business of an enterprise is wholly or partly carried on.

2) The term `permanent establishment` includes especially:

a) a place of management;
b) a branch;
c) an office;
d) a factory;
e) a workshop;
f) an installation or structure for the exploration of natural resources;
g) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
h) a building site or construction or installation project, but only if it lasts more than 12 months.

3) The furnishing of services, including consultancy services, in a Contracting State by an enterprise through its employees or other personnel engaged by the enterprise for such purpose, constitutes a permanent establishment, but only where the activities of that nature continue (for the same or a connected project) within that State for more than six months.

4) Notwithstanding the preceding provisions of this Article, the term `permanent establishment` shall be deemed not to include:

a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or of collecting information, for the enterprise;
e) the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character;
f) the maintenance of a fixed place of business solely for any combination of activities mentioned in sub-paragraphs (a) to (e) of this paragraph, provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character.

5) Notwithstanding the provisions of paragraphs (1) and (2) of this Article, where a person - other than an agent of an independent status to whom paragraph (6) of this Article applies - is acting on behalf of an enterprise and has, and habitually exercises, in a Contracting State an authority to conclude contracts on behalf of the enterprise, that enterprise shall be deemed to have a permanent establishment in that Contracting State in respect of any activities which that person undertakes for the enterprise, unless the activities of such person are limited to those mentioned in paragraph (4) of this Article which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph.

6) An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that State through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business. However, if the activities of the agent are carried out wholly or almost wholly for the enterprise he shall not be considered to be an agent of an independent status for the purposes of this paragraph.

7) The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.