INTERNATIONAL PRACTICE

• Australian case De Beers consolidated Gold Mines (AC 455). I
  • The company is registered in South Africa the shareholders‟ meetings were all in South Africa and Board meetings held in South Africa and the UK
  • The directors meetings held in the UK were found to be those where the real control was exercised and accordingly the company was held tax resident of the UK

• The Canadian Courts– general criteria to determine POEM
  • Place of incorporation
  • Place of residence of the directors
  • Place of conduct of business
  • Place where financial dealing has occurred

Here are some observations by various countries on the OECD report on the Principle of effective management

• France – It holds the view that the place where the most important functions are performed is also the place where the central management and control is done from.
• Japan & Korea – The view is in the traditional sense, using the term “Head Office or Main Office”.
• United Kingdom – It holds the view and goes by incorporation, and substance on the term centrally managed and controlled.
• Professor Klaus Vogel – what is decisive is not the place where the management directions takes effect but rather the place where they are given.

• Factors in determining Place of Effective Management (POEM)would be:
  • Where the top management is situated.
  • Where the business operations are actually conducted.
  • Legal factors such as incorporation, registered office, and the minutes book, are maintained.
  • Where the controlling shareholders reside.
  • Where the directors reside.