The COVID-19 crisis has resulted in several governments imposing restrictions of travel and quarantine requirements. These restrictions entail that many cross-border workers are unable to perform their duties in the country of employment and that e.g. board meetings must be held at a distance. This impacts the application of tax treaties, which concern the allocation of countries’ taxing rights.
At the request of concerned countries the OECD has issued a guidance in relation to some of these issues. The guidance concerning corporate taxation is described below.
The creation of permanent establishments
The creation of a permanent establishment in a country usually entails taxing rights for income attributable to the permanent establishment. Several tax treaties are modelled after the OECD Model Convention, according to which a permanent establishment is a fixed place of business through which a business is wholly or partly carried on. It is also deemed a permanent establishment if a person habitually uses a power of attorney to conclude agreements, on behalf of a company in a Contracting State.
The current COVID-19 crisis may cause concerns that employees performing their work in a different country than usual, due to restrictions, results in the creation of a permanent establishment in the other state, leading to reporting requirements and tax liability in that other state.
However, the conclusion of the OECD guidance is that the exceptional and temporary change of the location where employees exercise their employment, such as working from home, should not create new permanent establishments for the employer. Similarly, the temporary conclusion of contracts in the home of employees or agents because of the COVID-19 crisis should not create permanent establishments for the businesses. Additionally, the OECD does not consider that a construction permanent establishment ceases when work is temporarily interrupted due to current circumstances.
The tax residency status of a company
The taxing rights under the tax treaties are determined by where a company is considered to be resident for tax purposes. Should two countries apply separate grounds for taxation (e.g. registration or place of effective management), a company may be considered tax resident in several countries. In that case, the company’s tax residency is determined by the specific provisions of the relevant tax treaty.
If a company’s CEO or other senior executives perform their working duties from other countries than usual due to the COVID-19 crisis, the question arises whether or not the company’s place of effective management may have changed. In effect, the question is whether or not the company’s tax residency has changed.
However, the conclusion of the OECD guidance is that a temporary change of location for the CEO or other senior executives is an extraordinary and temporary situation due to the COVID-19 crisis that should not change the tax residency of a company under the tax treaties. In short, the reason is that all facts and circumstances shall be taken into account to determine where the company’s usual place of effective management is situated and not only the facts and circumstances pertaining to an extraordinary and temporary situation, such as the COVID-19 crisis.
Comment
Based on the OECD guidance, the COVID-19 crisis should not in general result in the creation of permanent establishments or a change of a company’s residence for tax purposes according to the tax treaties modelled after the OECD Model Convention.
However, an individual analysis should be made in each case to examine the relevant tax treaty’s conformity with the OECD Model Convention and the involved countries’ tendencies to adhere to guidance from the OECD. Furthermore, internal guidance in respective country may lead to reporting requirements (no matter the application of tax treaties) and tax liability for taxes not covered by tax treaties. Internal guidance in relevant countries should thus also be examined.
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