Professional Documents
Culture Documents
SOAL I
Manufacturer Ltd is resident of US has a branch in Indonesia. The branch pays a charge to the head office
following the items:
SOAL II
Manufacturer Inc is incorporated and managed in the Utopia. It wishes to sell its products in
Australis. Manufacturer appoints Boris as its agent in Australis. Previously he has worked as an agent
for various foreign companies but he intends in future to spend all his time on Manufacturer’s
business. Boris solicits orders from customers and forwards them by fax to the head office of
Manufacturer with a recommendation for action. The clerical assistant of the sales manager in head
office has instructions to follow all recommendations of Boris. Orders are filled by shipment direct
from head office to the person who makes the orders. Does Manufacturers have a permanent
establishment in Australis?
Jawab
SOAL I
SOAL II
Berdasarkan ketentuan di Commentary OECD atas Article 5 Paragraph 5 OECD Model, keberadaan
dependent agent di suatu Negara dapat dianggap sebagai BUT. Sebagaimana tercantum pada kasus di
atas, Boris berkeinginan untuk fokus menjual barang produk Manufacturer. Hal ini menunjukkan
ketergantungan secara ekonomis yang dapat menempatkan Boris sebagai dependent agent. Lebih lanjut,
kewenangan menandatangani kontrak atas nama Manufacturer dapat menimbulkan BUT (dependent
agent) sebagaimana dikutip dari Article 5 Paragraph 5 OECD Model berikut ini:
“Notwithstanding the provisions of paragraphs 1 and 2, where a person — other than an
agent of an independent status to whom paragraph 6 applies — is acting on behalf of an
enterprise and has, and habitually exercises, in a Contracting State an authority to
conclude contracts in the name of the enterprise, that enterprise shall be deemed to have a
permanent establishment in that 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 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”.