Fixed Establishment vs Permanent Establishment: Same or different?

Size: px

Start display at page:

Download "Fixed Establishment vs Permanent Establishment: Same or different?"

Randolf Harmon
6 years ago
Views:

1 Fixed Establishment vs Permanent Establishment: Same or different? CFE Annual Forum March 2017 Dr. Karoline Spies Institute for Austrian and International Tax Law 1

2 Agenda I. Purpose II. Definition 1. Technical and Human resources 2. Possession 3. Permanence and Fixation III. Passive FE/PE Institute for Austrian and International Tax Law 2

3 VAT and direct taxes: different character and purpose Direct taxes Taxing income/profits Collection method collection/payment by taxpayer itself and evaluation by taxpayer itself Residence vs source principle: two states may have taxing jurisdiction VAT Taxing final consumption Collection method businesses act as tax collectors (person who bears the tax who collects the tax) evaluation in B2B context by two persons (supplier and customer) Proportionality: need for simplification measures to limit administrative burden Destination principle: one state has taxing jurisdiction only Institute for Austrian and International Tax Law 3

4 Fixed Establishment in EU VAT fixed establishment (FE), added to place-of-supply rules by Sixth Directive also used in other provisions: reverse charge, input VAT refund Berkholz formula (1985): FE requires that a certain minimum size and both the human and technical resources necessary for the provision of the services are permanently present to providing FE and place-of-supply-rules in Art 9(1) Sixth Directive since Directive 2006/112: purchasing FE in Art 44 (more) relevant adjustment? Welmory: applies mutatis mutandis to purchasing FE in Art 44 Art 11 Implementing Regulation (IR, since 2011): FE is characterised by a sufficient degree of permanence and a suitable structure in terms of human and technical resources providing FE (Art 45): enable to provide the services which it supplies purchasing FE (Art 44): enable to receive and use the services for its own needs Institute for Austrian and International Tax Law 4

5 Permanent Establishment in OECD MC Art 5 (1) OECD MC: fixed place of business through which the business of an enterprise is wholly or partly carried on Examples and clarifications: Art 5(2)+(5) positive list (covered activities) Art 5(3): construction site only if 12 months permanence Art 5(4)+(6)+(7) negative list (not covered activities) Extension in UN Model and OECD Commentary: Service PE BEPS Action 7 and multilateral instrument 2016: lowering the threshold Extension of (5): commissionaire structures (Art 12 MLI) Limiting exemptions in (4): preparatory/auxiliary activities, e.g. storage (Art 13 MLI) Aggregating connected activities for the permanence criterion (Art 14 MLI) Institute for Austrian and International Tax Law 5

6 Purpose of a FE/PE VAT Allocation of taxing rights on services: proxy for place of consumption of services However: important additional criterion: allocation of services to FE Threshold for territorial link and administrative obligations reverse charge rules Neutrality: equal treatment of residents and non-residents Direct tax Allocation of taxing rights on profits: sufficient link to territory of source state However: important additional criterion: allocation of profits to PE Threshold for territorial link and administrative obligations OECD Comm para 42.2 Neutrality: equal treatment of residents and non-residents Institute for Austrian and International Tax Law 6

7 Technical and Human Resources Dependent on specific transactions Humans VAT Yes Art 11 IR: structure enables to provide or to receive the services core functions (ARO Lease) Necessary from Berkholz to Welmory: both, and Art 11 IR Technical resources Necessary Necessary Tangible Yes Yes Intangible Not sufficient ( but Welmory!) Not sufficient Direct tax Yes through which the business is wholly or partly carried on core functions (OECD Comm paras ) Not necessary OECD Comm para case law Institute for Austrian and International Tax Law 7

8 Technical and Human Resources Examples VAT Direct tax office, factory, workshop, mine Yes (if humans are present) Yes (Art 5(2)) gaming machines No (Berkholz) Yes fixed machinery: windmill, pumps, server website, software, data No... but domestic case law (German courts: Yes) No but Welmory: structure that is appropriate in terms especially of human and technical resources, such as appropriate computer equipment, servers and software Yes OECD Comm para 42.6 Yes OECD Comm para 42.2 No OECD Comm para 42.2 Institute for Austrian and International Tax Law 8

9 Possession Legal ownership/ employer subsidiary/ agent as FE/PE? VAT No requirement DFDS comparable control as the owner/employer (Kokott) no termination at short notice (Kokott) In general: No As an exception possible if (DFDS): 100% owned?and? exclusive activity?and? contractual obligations Direct tax No requirement rental, leasing at disposal permanent/constant (OECD Comm paras. 4, 4.3) In general: No (Art 5(7)) As an exception possible if dependent agent (Art 5(5)): acting on behalf + authority to conclude contracts + habitually exercised threshold might be lowered by Art 12 MLI Institute for Austrian and International Tax Law 9

10 Permanence and Fixation Permanence requirement Start End Fixed to one place VAT Yes, but no definition Berkholz: permanently present Art 11 IR: sufficient degree of permanence No legal basis or case law But: need for legal certainty at the time of supply! Not necessary? (Berkholz) Direct tax Yes, partly defined construction site: 12 months (UN: 6) others: no general criterion intention, retrospective (OECD Comm para. 6.3) disposal/cessation of activities (OECD Comm para. 11) geographical + commercial coherence (OECD Comm para. 5) Institute for Austrian and International Tax Law 10

11 Possession, Permanence, Fixation Examples Painter example: three days per week for two years, different rooms in one building (OECD Comm paras. 4.5 and 5.3) Mobile consultant (OECD Comm para. 5.4) Processing at a rented workshop, access prior notice (VAT Expert Group) VAT FE, also if different clients (?) FE only, if in same branch location (?) Direct tax PE, if one single client PE only, if in same branch location half a year, continous Yes Yes two days per week?? once in two months No (?) No Institute for Austrian and International Tax Law 11

12 Passive PE/FE VAT Old case law: structure needs to enable to supply output services (BUT: on old place-of-supply rules!) Direct tax Productive character is not a requirement (OECD Comm paras. 3, 7) Planzer: No FE, if structure used for preparatory or auxiliary activities, such as recruitment of staff or purchase of the technical means needed (BUT: on input VAT refund!) Art 53 IR: Where resources of FE are only used for administrative support tasks such as accounting, invoicing and collection of debt-claims, they shall not be regarded as being used for the supply (BUT: on reverse charge!) Similar relevant for Art 44 VAT Directive? OECD Art 5(4): No PE, if facilities used solely for the purpose of storage, display or delivery of goods purchasing goods or merchandise or of collecting information any other activity of a preparatory or auxiliary character Art 12 MLI: lowering PE threshold: overall activity needs to be of preparatory or auxiliary character Institute for Austrian and International Tax Law 12 =

Passive FE in VAT: a special issue A B C goods A services FE B Art 44 B2B services, defined in Art 11(2) IR: enable to receive and use the services supplied to it for its own needs No need to provide

13 Passive FE in VAT: a special issue A B C goods A services FE B Art 44 B2B services, defined in Art 11(2) IR: enable to receive and use the services supplied to it for its own needs No need to provide supplies, pure passive FE? in-house services, R&D, purchase, call-center, representation offices Consequences of accepting pure passive FE in Art 44 taxing right for State B (instead of C) reverse charge obligation to register, although no output supplies input VAT refund procedure (instead of assessment) Institute for Austrian and International Tax Law 13

14 Passive FE in VAT: a special issue Contra passive FE in VAT place of consumption in B2B costs need to part of prices of output supplies of FE? registration obligations due to reversecharge rules (although no output supplies) burden of input VAT refund procedure Pro passive FE in VAT place of consumption, sufficient if costs contribute to whole economic activity? wording of Art 11 IR supports lower threshold Art 43(2) + Art 13a IR: non-taxable legal persons may have passive FE Art 11 IR: enable mere ability to provide output supplies sufficient? any FE able to receive services and to fulfil in-house tasks is in theory also able to provide taxable supplies? Institute for Austrian and International Tax Law 14

15 Conclusion FE and PE serve a similar purpose (allocation of taxing rights), but: different underlying principles: tax collection, profits vs consumption What does taxing consumption in a B2B context (Art 44) actually mean? FE in VAT used for various different provisions and goals More positive/negative examples listed in direct tax law (legal basis in OECD MC as well as OECD Commentary) However: legal hierarchy: VAT Directive vs Implementing Regulation Most prominent differences in the definitions: still need for humans in VAT (?) permanence need for legal certainty in VAT: ex post evaluation not suitable fixation no strict requirement in VAT (?) agent/commissionaire structures? very little case law in VAT Institute for Austrian and International Tax Law 15

Libero Istituto Universitario Carlo Cattaneo International Tax Law a.a.2017/2018

Libero Istituto Universitario Carlo Cattaneo International Tax Law a.a.2017/2018 Permanent establishments Prof. Marco Cerrato Permanent establishment International legal framework The 1923 Report of the