A permanent establishment (PE) is a fixed place of business that generally gives rise to
income
Income is the consumption and saving opportunity gained by an entity within a specified timeframe, which is generally expressed in monetary terms. Income is difficult to define conceptually and the definition may be different across fields. F ...
or
value-added tax
A value-added tax (VAT or goods and services tax (GST), general consumption tax (GCT)) is a consumption tax that is levied on the value added at each stage of a product's production and distribution. VAT is similar to, and is often compared wi ...
liability in a particular jurisdiction. The term is defined in many income
tax treaties and in most
European Union Value Added Tax
The European Union value-added tax (or EU VAT) is a value added tax on Good (economics), goods and services within the European Union (EU). The EU's institutions do not collect the tax, but member states of the European Union, EU member states ...
systems. The tax systems in some civil-law countries impose income taxes and value-added taxes only where an enterprise maintains a PE in the country concerned. Definitions of PEs under tax law or tax treaties may contain specific inclusions or exclusions.
History
The concept of PE emerged in the German Empire after 1845, culminating with the German Double Taxation Act of 1909.
Initially, the objective was to prevent double taxation between Prussian municipalities, and this was extended to the entire German federation.
In 1889, the first bilateral tax treaty, including the concept of PE, was concluded between the
Austro-Hungarian Empire and
Prussia
Prussia (; ; Old Prussian: ''Prūsija'') was a Germans, German state centred on the North European Plain that originated from the 1525 secularization of the Prussia (region), Prussian part of the State of the Teutonic Order. For centuries, ...
, marking the first time the concept was used in international tax law. After years of preparatory works, in 1928, the
League of Nations
The League of Nations (LN or LoN; , SdN) was the first worldwide intergovernmental organisation whose principal mission was to maintain world peace. It was founded on 10 January 1920 by the Paris Peace Conference (1919–1920), Paris Peace ...
developed a model to tackle cross-border double taxation and to counter tax evasion.
Since then, an extensive network of bilateral tax treaties was gradually established, particularly through the influence of the
OECD
The Organisation for Economic Co-operation and Development (OECD; , OCDE) is an international organization, intergovernmental organization with 38 member countries, founded in 1961 to stimulate economic progress and international trade, wor ...
Model Tax Convention,
where this concept persisted.
Types
In the
OECD
The Organisation for Economic Co-operation and Development (OECD; , OCDE) is an international organization, intergovernmental organization with 38 member countries, founded in 1961 to stimulate economic progress and international trade, wor ...
Model Tax Convention, essentially three types of PEs can be construed:
* A fixed place of business PE (article 5(1));
* A construction or project PE, which is a special subset of the fixed place of business PE, with different requirements (article 5(3)); and
* An agency PE, through the actions of a dependent agent (article 5(5-6)).
The
UN Model Tax Convention, which gives greater consideration to developing countries, adds what is known as a service PE in article 5(3)b. Some countries, such as Saudi Arabia, have been trying to extend the concept of service PE into a virtual service PE.
Under the
Base Erosion and Profit Shifting project being developed by the
OECD
The Organisation for Economic Co-operation and Development (OECD; , OCDE) is an international organization, intergovernmental organization with 38 member countries, founded in 1961 to stimulate economic progress and international trade, wor ...
and endorsed by the
G20, a new nexus based on significant digital presence is being considered under Action 1, aimed at ''Addressing the Tax Challenges of the Digital Economy.''
Fixed place of business
The starting point for determination if a PE exists is generally a fixed place of business. The definition of PE in article 5 of the
OECD
The Organisation for Economic Co-operation and Development (OECD; , OCDE) is an international organization, intergovernmental organization with 38 member countries, founded in 1961 to stimulate economic progress and international trade, wor ...
Model Income Tax Treaty is followed in most income tax treaties.
The commentary indicates that a fixed place of business has three components:
*Fixed refers to a link between the place of business and a specific geographic point, as well as a degree of permanence with respect to the taxpayer. An "office hotel" may constitute a fixed place for a business for an enterprise that regularly uses different offices within the space. By contrast, if there is no commercial coherence, the fact that activities may be conducted within a limited geographic area should not result in that area being considered a fixed place of business.
*A place of business. This refers to some facilities used by an enterprise for carrying out its business. The premises must be at the disposal of the enterprise. The mere presence of the enterprise at that place does not necessarily mean that it is a place of business of the enterprise. The facilities need not be the exclusive location, and they need not be used exclusively by that enterprise or for that business. However, the facilities must be those of the taxpayer, not another unrelated person. Thus, regular use of a customer's premises does not generally constitute a place of business.
*Business of the enterprise must be carried on wholly or partly at the fixed place.
The requirements of what constitutes a PE within the scope of a particular treaty depend on what interpretation a particular country places on that term, in context of the text of that treaty. As per Article 3 of the
Vienna Convention on the Law of Treaties
The Vienna Convention on the Law of Treaties (VCLT) is an international agreement that regulates treaties among sovereign states.
Known as the "treaty on treaties", the VCLT establishes comprehensive, operational guidelines, rules, and proced ...
, no one is entitled to claim rights under a particular treaty unless otherwise authorised by the contracting state. Therefore, if a particular contracting state places a different meaning on the term 'permanent establishment' than what the taxpayer seeks to place, the taxpayer would be left with virtually no remedy within that state, other than to seek a mutual agreement to that dispute with the other contracting state to that treaty.
Indicative list of permanent establishments
The OECD Model Tax Convention includes a short indicative list of ''prima facie'' PEs. These, however, are not automatically PEs as the requirements set out, namely, for a fixed place of business PE must be met. The list is as follows:
* A
branch
* A
warehouse
A warehouse is a building for storing goods. Warehouses are used by manufacturers, importers, exporters, wholesalers, transport businesses, customs, etc. They are usually large plain buildings in industrial parks on the rural–urban fringe, out ...
(but see excluded places below)
* A
factory
A factory, manufacturing plant or production plant is an industrial facility, often a complex consisting of several buildings filled with machinery, where workers manufacture items or operate machines which process each item into another. Th ...
* A
mine or place of extraction of natural resources
* A place of
management
Management (or managing) is the administration of organizations, whether businesses, nonprofit organizations, or a Government agency, government bodies through business administration, Nonprofit studies, nonprofit management, or the political s ...
Specifically excluded places
Many treaties explicitly exclude from the definition of PE places if certain activities are conducted. Generally, these exclusions do not apply if non-excluded activities are conducted at the fixed place of business. Among the excluded activities are:
*Ancillary or preparatory activities
*The use of a storage facility solely for delivery of goods to customers
*The maintenance of a stock of goods owned by the enterprise solely for purposes of processing by another enterprise (sometimes referred to as toll processing)
*Purchasing or information gathering activities
Other specific provisions
Construction or Project PE
Many treaties provide specific rules with respect to construction sites. Under those treaties, a building site or construction or installation project constitutes a PE only if it lasts more than a specified length of time. The amount of time varies by treaty.
Agency PE
In addition, the activities of a dependent agent may give rise to a PE for the principal. Dependent agents may include employees or others under the control of the principal. A company is generally not considered an agent solely by reason of ownership of the agent company by the principal. However, activities of an independent agent generally are not attributed to the principal.
Service PE
Some treaties deem a PE to exist for an enterprise of one country performing services in the other country for more than a specified length of time or for a related enterprise.
BEPS Action 7 and 15
In October 2015, the
OECD
The Organisation for Economic Co-operation and Development (OECD; , OCDE) is an international organization, intergovernmental organization with 38 member countries, founded in 1961 to stimulate economic progress and international trade, wor ...
released the final reports on the
Base Erosion and Profit Shifting (BEPS) project. Action 7 was targeted at ''Preventing the Artificial Avoidance of Permanent Establishment Status'' and proposes a large number of changes that are set to be included in the next version of the OECD Model Tax Convention. The OECD expects many of these changes to be applied to currently existing tax treaties through the work based on Action 15 on ''Developing a Multilateral Instrument to Modify Bilateral Tax Treaties''. A large number of countries are involved in the negotiations that are expected to be concluded by the end of 2016.
The final report on Action 7 proposes substantial changes to the definition of Agency PE and stricter requirements to the exclusions provision:
"These changes will ensure that where the activities that an intermediary exercises in a country are intended to result in the regular conclusion of contracts to be performed by a foreign enterprise, that enterprise will be considered to have a taxable presence in that country unless the intermediary is performing these activities in the course of an independent business.
The changes will also restrict the application of a number of exceptions to the definition of permanent establishment to activities that are preparatory or auxiliary nature and will ensure that it is not possible to take advantage of these exceptions by the fragmentation of a cohesive operating business into several small operations; they will also address situations where the exception applicable to construction sites is circumvented through the splitting-up contracts between closely related enterprises."
References
{{Authority control
International taxation
Corporate taxation
International law