[Code of Federal Regulations]
[Title 26, Volume 18, Parts 500 to 599]
[Revised as of April 1, 2000]
From the U.S. Government Printing Office via GPO Access
[CITE: 26CFR509.105]
[Page 41-42]
TITLE 26--INTERNAL REVENUE
CHAPTER 1--INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
(Continued)
PART 509--SWITZERLAND--Table of Contents
Subpart--General Income Tax
Sec. 509.105 Industrial and commercial profits.
(a) General. (1) Article III of the convention adopts the principle
that an enterprise of one of the contracting States shall not be taxable
by the other contracting State upon its industrial and commercial
profits unless it is engaged in trade or business in the latter State
through a permanent establishment situated therein. Accordingly, a Swiss
enterprise is subject to United States tax upon its industrial and
commercial profits, to the extent of such profits from sources within
the United States, only if it is engaged in trade or business in the
United States at some time during the taxable year through a permanent
establishment situated therein.
(2) From the standpoint of the United States tax the article has
application only to a Swiss enterprise and its industrial and commercial
profits from sources within the United States. Thus, a nonresident alien
individual who is a citizen of Switzerland, or a Swiss corporation or
other entity, carrying on an enterprise which is not Swiss, is subject
to tax on such income of such enterprise pursuant to section
[[Page 42]]
871(c) or section 882(a), Internal Revenue Code of 1954, if such alien,
corporation, or other entity has engaged in trade or business in the
United States at any time during the taxable year, even though it has
not had a permanent establishment therein at any time within such year.
(b) No United States permanent establishment. A Swiss enterprise is
not subject to United States tax upon its industrial and commercial
profits from sources within the United States, nor shall such profits be
included in gross income, if it has not at any time during the taxable
year engaged in trade or business in the United States through a
permanent establishment situated therein. For example, if during the
taxable year an enterprise carried on in Switzerland by a nonresident
alien individual who is a resident of Switzerland, or by a Swiss
corporation, were to sell merchandise, such as watches, dairy products,
or liqueurs, in the United States through a commission agent or broker
in the United States acting in the ordinary course of his business as
such agent or broker, the profits arising from such sale would not be
included in gross income and would be exempt from United States tax
under Article III of the convention. Similarly, if during the taxable
year such enterprise were to secure orders in the United States for such
merchandise through its sales agents whose sole function in the United
States is sales promotion, the orders being transmitted to Switzerland
for acceptance, then the profits arising from such sales would not be
included in gross income and would be exempt from United States tax.
(c) United States permanent establishment--(1) General. A Swiss
enterprise is subject to United States tax upon its industrial and
commercial profits from sources within the United States to the same
extent as are nonresident aliens or foreign corporations which are
subject to tax pursuant to section 871(c) or section 882(a), Internal
Revenue Code of 1954, if such enterprise has at any time during the
taxable year engaged in trade or business in the United States through a
permanent establishment situated therein. If it is so engaged, it is
subject to United States tax upon its entire income from sources within
the United States except to the extent otherwise exempt from United
States tax.
(2) Allocation of profits. In the determination of the income
taxable to such enterprise for purposes of the United States tax, all
industrial and commercial profits from sources within the United States
shall be deemed to be allocable to the permanent establishment in the
United States. Hence, if a Swiss enterprise which has a permanent
establishment in the United States at some time during the taxable year
were to sell in the United States, through a commission agent therein
acting in the ordinary course of his business as such, merchandise which
has been produced in Switzerland, the profits arising from such sale
would be allocable to the permanent establishment to the extent they are
derived from sources within the United States, even though the sale is
made independently of the permanent establishment.
(3) Independent basis. The industrial and commercial profits of the
permanent establishment in the United States shall be determined as if
the establishment were an independent enterprise engaged in the same or
similar activities under the same or similar conditions and dealing at
arm's length, or on an independent basis, with the enterprise of which
it is a permanent establishment.