TOPIC

Permanent Establishment (PE)

Last Updated Jan. 4, 2021

Multinational corporations doing business in foreign countries are typically subject to the domestic tax laws of the countries where they are engaged in business activities. The permanent establishment concept creates a minimum threshold below which the source country does not attempt to tax a foreign enterprise’s business income. That threshold is set in terms of a minimum physical connection to the jurisdiction. There are two means by which an enterprise may cross that threshold and thereby come to have a permanent establishment in a country: by maintaining a fixed place of business in that country, or by means of a dependent agent.

How is a permanent establishment defined?

Bilateral tax treaties normally define a PE based on whether the corporation has a “fixed place of business” within the target country, as defined by the specific treaty language, and whether the corporation operates through a dependent agent that habitually exercises the authority to conclude contracts on its behalf in the target country. The terms of such treaties normally reflect the OECD’s model of standard treaty language, but specific treaties should always be examined for differences or exceptions.

World connections

Watch on Demand:
Permanent Establishment vs. Nexus

Due to the widespread digitization of the economy, traditional models of nexus and permanent establishment are dissolving. This on-demand webinar covers the implications of these changes.

What are examples of a “fixed place of business?”

The term “permanent establishment” includes, but is not limited to:

  • Place of management
  • Branch or office
  • Factory
  • Workshop
  • A mine, oil, or gas well, quarry, or any other place where natural resources are extracted

There are exceptions, however, to these general location types that do not constitute a permanent establishment for treaty purposes. De minimis exceptions from permanent establishment include:

  • Use of a facility solely for the storage, display, or delivery of goods or merchandise owned by the corporation
  • Maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purposes of storage, display, or delivery
  • Maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise
  • Maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise (or collecting information) for the enterprise
  • Maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other preparatory or auxiliary activity
  • Maintenance of a fixed place of business solely for any combination of the activities listed above

International flags

Subscriber-Only Resource: Permanent Establishment by Country

Review and export a chart detailing a variety of permanent establishment-related definitions, treaties, and country-by-country laws.

How is a resident of a contracting state taxed if it has a permanent establishment in the other contracting state?

Under most income tax treaties, a resident of a contracting state with a PE in the other contracting state is subject to tax under the source country’s normal income tax rules, which usually means taxation on a net basis measured by the gross income attributable to the PE, reduced by expenses attributable to the PE. The resident is potentially also subject to tax on any other income earned in the other contracting state that is not attributable to the PE, in accordance with the applicable provisions of the treaty and the source country’s domestic tax law. For example, investment income not attributable to the PE will most likely be taxed on a gross basis.

Laptop

Watch on Demand: Bloomberg Tax Leadership Forum

Watch presentations from our forum, Shaping the Global Tax Landscape, which was held June 23-25, 2020, to hear from leaders from renowned organizations – including the OECD, IMF, IBM, and EY.

How is a permanent establishment triggered by means of a dependent agent?

Even without a fixed place of business in a treaty country, an enterprise may have a permanent establishment in a treaty country to the extent that an agent in that country conducts activities on behalf of the enterprise. An agent in one country may be considered a permanent establishment of an enterprise of another country if:

  • The agent is a dependent agent
  • The agent has and continues to habitually exercise an authority to conclude contracts in the agent’s country that are binding to the enterprise.

Under model treaty language, to avoid being a dependent agent there are two conditions that must be satisfied:

  • The agent must be both legally and economically independent of the enterprise
  • The agent must be acting in the ordinary course of its business in carrying out activities on behalf of the enterprise

Closed sign

Watch on Demand: Surviving the Shocks to the SALT World – Wayfair and Covid-19

Learn how the global pandemic has affected companies’ ability to comply with new economic rules while also navigating the uncertain tax policy and revenue landscape taking shape during this global crisis.

Key IRC Sections

§894

Income Affected By Treaty

§897

Disposition Of Investment In United States Real Property

§996

Rules For Allocation In The Case Of Distributions And Losses

§6048

Information With Respect To Certain Foreign Trusts

Tax Research and Practice Tools

From in-depth research and analysis to timesaving practice aids, Bloomberg Tax & Accounting has the resources you need to provide informed advice.

Access to this information requires a subscription to Bloomberg Tax & Accounting. Don’t have access? Request a demo.

Portfolio

PORTFOLIO

Portfolio 6860-1st: U.S. Income Tax Treaties — Permanent Establishments and Related Business Provisions

This portfolio discusses U.S. income tax treaty provisions related to business income associated with permanent establishments, the specialized treatment of real estate, and international shipping and aircraft activities.

Tools

PRACTICE TOOL

Tax Practice Series: U.S. Income Tax Treaties, Business Income

In this section of the Foreign Taxation Tax Practice Series, learn how the U.S. Model Treaty determines how business profits should be taxed and how it defines a permanent establishment.

Portfolio

PORTFOLIO

Portfolio 938-1st: U.S. Income Tax Treaties — Income Not Attributable to a Permanent Establishment

This portfolio covers aspects of U.S. income tax treaties that relate to income that is not attributable to a permanent establishment.

Top