Permanent establishment (PE) is a term that describes an ongoing presence of a business in a country. If it is determined that a PE exists, the company becomes liable for corporate taxation in that country and subject to tax filing requirements. The practical meaning of a PE is that it creates a taxable presence for a company outside the company’s country of establishment. A PE must be duly registered with the local tax administration and separate accounting and tax filing must be arranged.
Generally, employees working from a home office can trigger a PE. Employees can also trigger a PE through the so-called “agency permanent establishment” (or “agency “PE”), which describes a situation in which employees habitually perform decision-making activities in another country (e.g., negotiating and concluding sales contracts). Employees can trigger a PE through ongoing service delivery in another country.
Another aspect which commonly arises in this context is dual residence which is not the same as PE. To determine tax residence for a company, some countries assess the place of effective management. So, if directors and executives are working from their home office in another country and for example move all or some board meetings online, this can give rise to questions about whether the company has residence, and thereby a corporate tax liability, in more than one country.
During the COVID-19-related restrictions on movement, the OECD recommended3 that employees who are working from a jurisdiction other than the one where their employer is located due to pandemic-related restrictions should not trigger PE. The focus of this guidance was on the fact that restrictions imposed by governments due to COVID-19 were exceptional and temporary in nature.