The arrival of the new BEPS PE clause in actual tax treaties via the MLI impact, risks and need for further regulatory changes (particular focus on Spain) Eva Escribano
By: Escribano López, Eva
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Material type: 
ArticleSubject(s): FISCALIDAD INTERNACIONAL | CONVENIO MULTILATERAL | ESTABLECIMIENTO PERMANENTE | ADMINISTRACION TRIBUTARIA | ESPAÑA
In:
Intertax v. 51, n. 5, May 2023, p. 397-413Summary: The article analyses the impact of the new PE concept that has emerged from the OECD BEPS Project. The concept is expected to be gradually incorporated into actual tax treaties worldwide. The article uses Spain as an illustrative example. Firstly, it analyses the role that the Multilateral Instrument (MLI) is playing in the implementation of the new rule in tax treaties. Secondly, it analyses the wording and scope of the new PE clause, highlighting its obvious resemblance to ideas foreseen in both prior versions of the OECD Model Convention and certain domestic administrative resolutions and judgments (e.g., the ‘Spanish PE approach’, a doctrine widely held by the Spanish tax administration and some courts advocating for a singular interpretation of the PE clause and the rules attributing profits to it). Thirdly, the article estimates the effects of the arrival of the new clause in actual tax treaties in terms of the expected volume of affected treaties, the expected reaction of tax administrations and courts (in respect of unaffected treaties keeping the classic version of the PE concept), the potential coexistence between the new treaty PE rule and current domestic PE rules and, lastly, the expected (extra) tax revenues for jurisdictions hosting these new forms of PEs.
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|---|---|---|---|---|---|---|
| Artículos | IEF | IEF | OP 2141/2023/5-4 (Browse shelf) | Available | OP 2141/2023/5-4 |
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| OP 2141/2023/5-1 The twilight of bilateralism | OP 2141/2023/5-2 The Multilateral Instrument in Africa | OP 2141/2023/5-3 The taxation of "digital nomads" and the "3 W’s" | OP 2141/2023/5-4 The arrival of the new BEPS PE clause in actual tax treaties via the MLI | OP 2141/2023/5-5 Disaggregation of financial instruments in international tax law | OP 2141/2023/5-6 Foreign permanent establishment losses under the fundamental freedoms | OP 2141/2023/6/7 Intertax |
Resumen.
The article analyses the impact of the new PE concept that has emerged from the OECD BEPS Project. The concept is expected to be gradually incorporated into actual tax treaties worldwide. The article uses Spain as an illustrative example. Firstly, it analyses the role that the Multilateral Instrument (MLI) is playing in the implementation of the new rule in tax treaties. Secondly, it analyses the wording and scope of the new PE clause, highlighting its obvious resemblance to ideas foreseen in both prior versions of the OECD Model Convention and certain domestic administrative resolutions and judgments (e.g., the ‘Spanish PE approach’, a doctrine widely held by the Spanish tax administration and some courts advocating for a singular interpretation of the PE clause and the rules attributing profits to it). Thirdly, the article estimates the effects of the arrival of the new clause in actual tax treaties in terms of the expected volume of affected treaties, the expected reaction of tax administrations and courts (in respect of unaffected treaties keeping the classic version of the PE concept), the potential coexistence between the new treaty PE rule and current domestic PE rules and, lastly, the expected (extra) tax revenues for jurisdictions hosting these new forms of PEs.
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