Guide

Language:

A Starter Guide to Force of Attraction (FoA)

By Lindsey Rudy

Published on 14 Mar 2023 11 min read

As a business owner, it’s important to understand the various tax laws and regulations that apply to your business. One of the key concepts in income tax law is the force of attraction (FoA), which can have a significant impact on how your business is taxed. 

You needn’t follow all tax news or sit at every expert corner to keep yourself in the know of vital tax topics. Several questions might be going through your mind. What is FoA in taxation? How does it work? How can it affect your business through PE? 

In this article, we will provide a starter guide to force of attraction and every surrounding piece of information you need to know. At the end of this starter guide, you will understand the rudiments of FoA even if you are not a tax lawyer. 

What Is the Force of Attraction in Taxation?

The “force of attraction” is a concept that refers to the power of a country’s tax laws to attract or compel non-resident taxpayers to pay taxes on income earned within its borders. This principle is fundamental in international tax law and is commonly used to determine which country has the right to tax a particular income.

The force of attraction principle says that a country can tax the income of a non-resident if that income comes from sources inside the country’s borders. This means that if a non-resident person or business earns money from a business, property, or other sources in the country, the country can tax that money, even if the non-resident has no other ties to the country.

For example, if a foreign company operates a subsidiary in a country and earns profits from the sale of goods or services in that country, the force of attraction principle allows the country to tax those profits. Similarly, if a non-resident individual owns rental property in a country, the country can tax the rental income earned from that property.

The force of attraction principle is often based on the idea that the country providing the source of income has provided the non-resident with a benefit or opportunity that has allowed them to earn the income. As a result, it is seen as fair for the country to tax that income.

This principle is also used in conjunction with other tax principles, such as the residency principle and the source principle, to determine which country has the right to tax a particular income. The residency principle generally allows a country to tax the worldwide income of its residents, while the source principle allows a country to tax income earned within its borders by non-residents.

The force of attraction principle can be particularly important in situations where a non-resident taxpayer has income from multiple countries. In such cases, the force of attraction principle may determine which country has the primary right to tax the income, while other principles may be used to determine how much tax is owed and whether the taxpayer is entitled to any credits or deductions.

How Does the Force of Attraction Work?

The force of attraction works by establishing a connection between a non-resident’s income and the country in which the income is earned. This connection is typically based on the source of the income, which can include things like the location of the property, the place of business, or the source of the services provided. Once the connection is established, the country in which the income is earned can tax that income at its own tax rates.

For example, let’s say you form an LLC in the United States but earn income from sales in Canada. If there is a tax treaty in place between the United States and Canada, the force of attraction principle would allow Canada to tax the income earned from those sales, even though your business is based in the United States. This would be done at the tax rates established by the Canadian tax authorities.

A slight deviation from tax law shows how the force of attraction works in the sciences. In a similar vein, the force of attraction is a fundamental concept in physics that describes how two objects are drawn toward each other. This force exists between any two objects that have mass or charge, and it is one of the most important forces in the universe. The force of attraction can be explained by several different theories, including Newton’s law of universal gravitation, Coulomb’s law, and electromagnetic force.

What Is Double Taxation?

Double taxation is a situation where the same income is taxed twice in two different jurisdictions. This can occur when two countries have the right to tax the same income or when the income is taxed in one jurisdiction but is also subject to withholding tax in another jurisdiction.

To prevent double taxation, many countries have entered into double taxation avoidance (DTA) agreements, also known as tax treaties. These treaties provide rules on which country has the right to tax specific types of income and also provide relief from double taxation by allowing for the tax paid in one country to be credited against the tax liability in the other country.

For example, suppose a US resident earns income from a business in the UK. Without a tax treaty in place, the United States could tax the income as foreign income, and the UK could tax the same income as UK source income. This would result in double taxation, which would be unfair and discourage cross-border investment. 

However, if a tax treaty is in place, the treaty will specify which country has the right to tax the income and the rate of tax that will apply. The treaty will also provide a mechanism to avoid double taxation by allowing the United States resident to credit the UK tax paid against their US tax liability.

Permanent Establishment (PE) is a critical concept in determining the right to tax under a tax treaty. It refers to a fixed place of business through which an enterprise carries out its business activities in a particular country. The concept of PE is important because, under most tax treaties, only the country in which a taxpayer has a PE can tax the business profits attributable to that PE.

For example, suppose a US corporation has a subsidiary in France that is engaged in selling goods to French customers. The subsidiary operates out of an office in France and has employees and assets in the country. In this case, the French office would constitute a PE of the US corporation, and the profits attributable to that PE would be subject to French tax. The US corporation would be able to claim a credit for the French tax paid against its US tax liability.

DTT or DTA

A Double Taxation Treaty (DTT), also known as a tax treaty or double taxation agreement, is an agreement between two countries to prevent double taxation of the same income. It is a bilateral agreement that clarifies the tax rules for cross-border transactions and ensures that taxpayers are not taxed twice on the same income.

The primary purpose of a DTT is to allocate taxing rights between two countries, to avoid tax discrimination against taxpayers from one of the countries, and to reduce tax evasion. These treaties also help promote international trade and investment by providing a stable tax environment for cross-border transactions.

In general, a DTT typically covers the following aspects:

• Residence: The treaty defines a tax resident of the country and establishes the rules for determining residency.
• Taxable Income: The treaty defines the types of income that are taxable in each country and specifies the rules for determining the source of income.
• Tax Rates: The treaty sets the maximum tax rates that each country can apply to different types of income.
• Elimination of Double Taxation: The treaty provides a mechanism for eliminating double taxation, either by allowing taxpayers to claim a tax credit or by exempting the income from tax in one of the countries.
• Mutual Agreement Procedure: The treaty establishes a mechanism for resolving disputes between the two countries over the interpretation or application of the treaty.

DTTs can vary widely in their terms, but they generally follow the above structure. For example, some treaties may cover only certain types of income, while others may be more comprehensive and cover all types of income. Some treaties may also include specific provisions for certain industries or activities, such as shipping or air transport.

Notably, DTTs play a critical role in promoting cross-border trade and investment by ensuring a stable tax environment and preventing double taxation. They also provide a mechanism for resolving disputes between countries and reducing tax evasion. It is essential for businesses operating in multiple countries to understand the DTTs in place between those countries to minimize their tax burden and comply with local tax laws.

Establishing an LLC affords business owners tax benefits.  An LLC allows for the pass-through of income, meaning that the company’s profits and losses are passed through to its members and are not subject to double taxation. 

They can be formed in multiple jurisdictions to take advantage of different tax rules and regulations. By understanding the applicable DTTs applicable between these jurisdictions, business owners can minimize their tax burden and ensure they are compliant with all local laws. 

What Is Permanent Establishment (PE)?

Permanent Establishment (PE) is a concept used in international tax law to determine the taxable presence of a foreign business in a host country. Having a branch of your business in another country provides huge benefits to your brand’s growth and expansion. In general, a PE is a fixed place of business through which a foreign company conducts its business activities within a host country.

The concept of PE is particularly relevant in determining a foreign company’s tax liability in a host country, as it determines whether the company is subject to income tax in that country. If a foreign company has a PE in a host country, it is typically subject to income tax on the profits that are attributable to that PE.

A PE can take many forms, including a branch office, a factory, a warehouse, or even a construction site. It can also be a “virtual” presence, such as an agent or representative who habitually exercises authority to conclude contracts on behalf of the foreign company in the host country.

The determination of whether a PE exists is often a complex and fact-specific analysis, as it depends on the specific business activities of the foreign company within the host country. However, a PE will exist if the foreign company has a fixed place of business in the host country, and the business activities conducted at that place of business go beyond mere preparatory or auxiliary activities.

For example, if a foreign company sets up a branch office in a host country to sell products, the branch office would likely be considered a PE. Similarly, if a foreign company sends employees to a host country to perform services for an extended period, those employees may create a PE for the company.

The concept of PE is closely related to the Force of Attraction (FoA) rule, which is used to prevent companies from avoiding tax in a host country by artificially separating their business activities to avoid creating a PE.

Under the FoA rule, if a foreign company’s activities in a host country create a PE, all profits attributable to those activities must be subject to income tax in the host country, even if the company attempts to allocate those profits to a different jurisdiction.

How Businesses Should Treat the Force of Attraction Rule

As a business owner, it’s important to understand how the force of attraction rule can impact your business. Here are some possible ways to take advantage of or possibly avoid this rule:

1. Use it to build a strong brand identity: A business can use the force of attraction rule to build a strong brand identity that resonates with its target audience. By identifying what their customers are attracted to, a business can create marketing campaigns that speak to their emotions and build brand loyalty.
2. Understand their target audience: To use the force of attraction rule effectively, businesses must understand their target audience. They should research their customers’ values, interests, and behaviors to identify what attracts them. This can help businesses tailor their products, services, and marketing efforts to better meet their customers’ needs and desires.
3. Be authentic: When using the force of attraction rule, businesses must be authentic in their messaging and branding. Customers can easily spot inauthenticity, which can erode trust and loyalty. Instead, businesses should focus on highlighting their unique strengths and values, and use them to attract their target audience.
4. Continuously adapt: The force of attraction rule is not static, and businesses must continuously adapt to changing customer preferences and trends. By regularly monitoring customer feedback and industry trends, businesses can stay ahead of the curve and ensure that their products, services, and marketing efforts remain attractive to their target audience.

Overall, businesses that understand and apply the force of attraction rule can build stronger relationships with their customers, drive brand loyalty, and achieve long-term success.

Expand Globally and Maintain Compliance With Tax Laws

Businesses should understand the significance of the force of attraction rule and its impact on their international operations. The rule has been implemented to prevent companies from taking advantage of tax havens and to ensure a fair distribution of taxes. Businesses should prioritize compliance with local tax laws and seek professional assistance when expanding globally.

If you need help with your bookkeeping, tax package, and tax compliance, consider using doola’s services. We offer efficient and accurate solutions to help you manage your finances and stay compliant.

FAQs